TaxTMI 
TaxTMI 
2023 (3) TMI 1018
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....eved and dissatisfied by the order dated 23.10.2019 passed by the National Company Law Tribunal (Cuttack Bench, Cuttack) in Company Petition (Appeal) No. 82 /CTB /2019 whereby and whereunder Company Petition (Appeal) filed by the Appellant against the struck off the name of the company vide order dated 29.08.2018 passed by the Registrar of Companies, Chhattisgarh, was dismissed by the Tribunal. 2. The facts giving rise to this Appeal are as follows: i) N. K. Jain Realbuild Private Limited ("Appellant Company/Company") was incorporated under the Companies Act, 1956 on 22.05.2012 as a Private Company, Limited by Shares with the Registrar of Companies, Chhattisgarh registered with the CIN: U45400CT2012PTC000356. The authorized share capital ....
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....eral Meetings and had also been maintaining all the requisite documents, as per the provisions of the Companies Act, 2013. iv) On, 29.08.2018, the Appellant company was shocked and surprised that the Respondent in term of Section 248(5) of the Act, had published the name of the Appellant company on the Official Gazette thereby, declaring that the company had been struck off as purportedly the company had not been carrying on any business or operation for a period of two financial years and had not made any application for obtaining the status of a dormant company under Section 455 of the Act. The company has it base of operations in a remote location in Bastar Dist. Chhattisgarh. The day-to-day life in the said region is frequently disrupt....
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....n the real estate market; * that the company has inventories amounting to Rs. 67,65,000/- comprising of land and Construction materials of Rs. 5,25,747/- as per the audited Balance sheet for the financial year 2017-18; * the company has long term borrowings to the tune of Rs. 71,19,454/- as on 31st March, 2018; * the company had not deposited substantial cash during the demonetization period and therefore it is a genuine company carrying on legitimate business. After hearing the parties, the Tribunal passed the order impugned dated 23.10.2019 which led to filing of this Appeal. 3. The Ld. Counsel for the Appellant during the course of argument and grounds taken in his memo of Appeal submitted that the NCLT failed to appreciate that ....
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....LT also failed to appreciate that the Respondent was not opposed to the Company being revived in the interest of justice. 5. It is further submitted that the Respondent has arrived at a wrongful conclusion that the company is not carrying on any business because in the absence of financial statements. The carrying on business and filing annual financial statements are two separate and independent matters and there is no causal relationship between the two. Thus, non-filing of annual financial statements is not conclusive of no business operations. Further, non-filing of annual financial statements was not intentional, it was inadvertent. The Company was very much in business, a fact which is substantiated by the presence of stock as reflec....
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.... date of actual filing. 8. The settled law that restoration is the rule and not the exception as was held by the Hon'ble High Court of Delhi in the case of "ZTE Corporation v. Siddhant Garg and Others". In this case, the Court has held hereunder: "........ Normally the rule is to allow the restoration. Exercising discretion against restoration would thus be an exception and not the rule. The Court would also be varying of refusing restoration so as to possibly safeguard the interest of one particular class of affected persons. This is a discretionary power and is evident from the use of the work "may" used in Section 560(6) (corresponding section 252 of Companies Act, 2013). A statutory period of 20 years limitation has also been provide....
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....rties, we take note of the fact that para 9 of the impugned order, the NCLT has recorded that in this case, Registrar of Companies, Chhattisgarh also did not have objection for restoration of the Company's name in the Register. However, in view of the fact that the Audited Annual Accounts of the Company for the Financial Years 2012-2013, 2013-14, 2014-15, 2015-16, 2016-17 & 2017-18 and Income Tax Return of the Company for the Financial Years 2012-2013, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 & 2018-19 shows that the Appellant Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Appellant Company is not carrying on any business or operations. Hence, we are of the view that the order pas....