TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 750
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....2 from the impugned "List of Disqualified Directors" prepared by the Respondents, as published and upload on the website of Respondents Nos.1; (b) Issue a writ of mandamus or a writ of any other nature or any other direction/order directing the Respondent Nos.1 and 2 to change the status of the Petitioner Nos. 1 & 2, in the records of the Respondents No.1 and 2 from "disqualified directors" and enabling their 'Director Identification Number' ("DIN"), thereby enabling, both the Petitioners to act as Directors and make their filings, in respect of other companies(ies), in which they are serving as a directors (c) Issue a writ a mandamus or a writ of any other nature or any other direction/order directing the Respondent Nos. 1 and ....
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....tes (DSCs). 3. It emerges that on an appeal filed by the Company under Section 252 of the Act, its name was restored in the register of companies by an order dated 22.10.2019 passed by the National Company Law Tribunal (NCLT), Principal Bench. The said restoration was, however, subject to the Company filing the requisite documents and paying outstanding fee along with the fine applicable thereon as mandated by the rules, for the defaulting years. 4. Soon thereafter, on 30.03.2020, the respondent no.1 notified a Companies Fresh Start Scheme 2020 (CFSS) which aims to provide an opportunity to defaulting companies to file their documents at a belated stage, by condoning the delay insofar as it concerns any liability to pay additional fee for....
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....led without any legal authority. It is his contention that the action of cancelling the DINs can only be carried out under the proviso to Section 167(1)(a) of the Act, which came into effect on 07.05.2018. When it is an admitted position that the default of the Company and the petitioners, if any, took place prior to 07.05.2018, in fact it took place even prior to 30.06.2017, then evidently the respondents have applied the provision retrospectively to cancel the DINs of the petitioners. He submits that the retrospective application of the proviso to Section 167(1)(a) of the Act has already been held to be illegal by this Court in the decision in Mukut Pathak and, therefore, the act of cancelling the DSCs and DINs of the petitioners cannot h....
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....rused the record. 10. From the submissions of the parties, it is evident that in Mukut Pathak (supra), this Court has come to a categorical conclusion that the proviso to Section 167(1)(a) of the Act, which came into force w.e.f. 07.05.2018, cannot be applied retrospectively. The relevant extract of the decision in Mukut Pathak (supra) reads as under: "98. In view of the above, the petitioners would not demit their office on account of disqualifications incurred under Section 164 (2) of the Act by virtue of Section 167(1)(a) of the Act prior to the statutory amendments introduced with effect from 07.05.2018. However, if they suffer any of the disqualifications under Section 164(2) on or after 07.05.2018, the clear implication of the prov....
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....ng the disqualification under Section 164(2) of the Act after 07.05.2018. However, the office of the director shall not become vacant in the company which is in default under sub-section 164(2) of the Act." 11. In the present case, admittedly, the Company itself stood struck off the register on 30.06.2017 and was restored only on 22.10.2019, and the default on its part as also that of the petitioners took place prior to 30.06.2017. This implies that the ratio of the decision in Mukut Pathak (supra) is squarely applicable to the facts of this case since it specifically clarifies that any Company or Directors committing defaults under Section 164(1) of the Act before 07.05.2018 cannot invite application of the proviso to Section 167(1)(a) of....