TaxTMI 
TaxTMI 
2023 (3) TMI 247
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.... the Tribunal. 2. The facts giving rise to this Appeal are as follows: i) The company, M/s. Smile Energy Private Limited, was incorporated under the Companies Act, 1956, on 24.11.2007. The main object of the company are to carrying in the business to generate, receive, produce, improve, by, sell, acquire, use, transit, accumulate, employ, distribute, develop, handle, protect, supply and to act as agent, broker, representative, consultant or otherwise to deal in electronic power in all its branches at such place or places as may be permitted by appropriate authorities by establishment of thermal power plants, hydraulic power plants, atomic power plants, wind power plants solar power plants and other power plants based on any source of energy as may be developed or invented in future, etc. The Appellant herein, was a Director and Shareholder of the Company. ii) The Government of Orissa issued an internal letter on 02.02.2009 to one of its departments stating that 3 MW SHEP lower Indra project was allotted to the Appellant. On 16.02.2009, the Company entered into a Memorandum of Understanding with the Government of Odisha on 16.02.2009 to establish a Small Hydro E....
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....e Government of Odisha was unable to complete the acquisition of the land on which the project was to be completed. However, from time to time, the Company furnished Bank Guarantees required to execute the project. vi) In 2018, the company, at its Annual General Meeting, approved of its Balance Sheets, as well as the Director's Report for the year 2017-18. The company reported a loss of Rs. 26,699/- for the Financial Year ending on 31.03.2018. Further, the Company, at its Annual General Meeting, approved of its 2018-19 Balance Sheets, as well as the Director's Report. The company reported a loss of Rs. 8,870/- for the Financial Year ending on 31.03.2019. vii) The Registrar of Companies issued Gazette Notification dated 24.10.2019 striking off the Company from the Register of Companies as per Section 248(5) of the Companies Act, 2013. The Appellant herein checked the website of the Ministry of Corporate Affairs Portal for filing of certain statutory documents and learnt that the status of the Company was 'Strike Off'. The Company is still a going concern and has been consistently maintaining audited financial statements, meeting all the statutory re....
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....s the company was conducting its business through issuing various letters to the relevant authorities in order to be able to begin construction and necessary activities on the Hydro Electric Project. 5. It is further submitted that the company and its shareholders are ready and willing to invest Crores of Rupees in the construction of the dam, which is important for the development of Nuapada District, and for the national development. The company will produce renewable electricity connected to the national grid in an environmentally friendly manner. Therefore, it is in the interests of the society that the company is allowed to function and conduct business. Further, the Company and the Appellant herein did not receive any notice under Section 248(1) of the Act. Such a notice is mandatory in order for the company to be struck off from the Register of Companies, therefore, the striking off is bad in law for the failure to follow due process. The company was unable to upload its Annual Reports with the Registrar of Companies due to the suspension of the Appellant's DIN between 2016 and 2019. This was only later investigated by the Appellant, and the Appellant has approached t....
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.... the Official Gazette and Newspaper for the information of the general public regarding striking off the name of the company in Form No. STK-5/5A. The said notice is issued as public notice not only to the company and the directors of the company but also to all stakeholders concerned so as to receive their objections, if any, to the said intention of the Registrar to remove the name of the company from the Register. Finally, after the expiry of the time mentioned in the said notice, the name of the company was struck off from the Register maintained by the Respondent and the name of the company was published in Form STK-7 in the Official Gazette dated 22.07.2017 and on the publication of such notice in the official Gazette the company stood dissolved on and from 24.10.2019. Further, the instant appeal is liable to be dismissed with costs because the appellant has not been able to prove that the appellant company was a going concern and was having any business operations at the relevant time. 9. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Audited Balance sheets from Financial Year 2017-18 to 2018-19 as als....