TaxTMI 
TaxTMI 
2022 (4) TMI 1576
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....free copy of the order is due to 'COVID-19 Pandemic' and that the 'Applicant'/'Appellant' had filed the Appeal' on 12.03.2021 before the portal of the NCLAT, New Delhi with the delay of 25 days, the 'Limitation' is to be exempted, in the teeth of the order of the Hon'ble Supreme Court's Order dated 08.03.2021 in Suo Motu Writ Petition (Civil) No.2 of 2020 in Re. Cognizance for Extension of Limitation. Viewed in that perspective, this 'Tribunal' by taking a liberal, pragmatic, practical, purposeful, and meaningful view allows the IA/719/2021 in Company Appeal (AT) No. 47 of 2021 and condones the delay in preferring the 'Appeal'. No Cost. INTRODUCTION: 1. The 'Appellant' has focused the instant Company Appeal (AT) No. 47 of 2021 as an 'Aggrieved Person' being dissatisfied with the 'Impugned Order' dated 31.12.2020 in 'Appeal No. 350/252(ND)/2020 passed by the National Company Law Tribunal, New Delhi, Special Bench (Court-II). 2. The National Company Law Tribunal, New Delhi, Special Bench (CourtII) while passing the 'Impugned Order' dated 31.12.2020 in 'Appeal No. 350/252(ND)/2020 (filed under Section 252 of the Companies Act, 2013) among other things at paragraph 5 to 14 had obse....
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....ng all the documents on the records within 3 days from today 10. That the Appellant Company in response to the same has filed its balance sheets from the financial year 2006-07 to 2018-19 which were prepared after the date of striking off. Other than that no additional evidence has been placed on record, which could depict that the company was in operation or carrying out business as per its objects. Also, the Appellant Company failed to produce any document in support of utilization of plot on lease by RIICO Ltd. 11. That the provisions pertaining to restoration of the name of the Company are provided in the Section 252(3) of the Companies Act, 2013, which, inter alia, includes that if a company is carrying out its business or in operation or otherwise it is just that the name of the company be restored, this Tribunal can order the ROC to restore the name of the company in the Register of Companies. 12. There is nothing placed on record pertaining to the period prior to 01.09.2017, which could prove beyond doubt that the company was in operation or was carrying out its business. The ROC in its report has also observed that the company was not carrying on any operations fo....
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...."or otherwise" which would be a travesty of justice besides defeating the very object of the Company 14. In view of the above, this Bench is not inclined to interfere with the striking off action taken by the ROC against the Appellant Company under Section 248(5) of the Companies Act, 2013." and resultantly 'Dismissed the Appeal'. APPELLANT'S SUBMISSIONS: 3. The Learned Counsel for the 'Appellant' submits that the 'Appellant'/'Company' was duly incorporated on 25.08.1995 under the Companies Act, 2013 an that 'Notice' dated 13.06.2017 was issued to it, by the 1st Respondent/Registrar of Companies, New Delhi and later proceeded in terms of Section 248 of the Companies Act, 2013 for 'striking off' the 'Appellant'/'Company's name from the 'Registrar of Companies'. The 1st Respondent/Registrar of Companies, through Notice dated 01.09.2017, had struck off the 'Appellant's name from the Register. 4. It is represented on behalf of the 'Appellant' that the 1st Respondent/Registrar of Companies had not objected to the restoration of the 'Appellant'/Company but prayed for a direction being issued to the 'Appellant'/Company to file all pending written as mentioned by the 1st Respondent....
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....er, when the 'Appellant'/'Company' was about to file the required documents, they came to know that the 'Appellant'/'Company's name was 'struck off' by the 1st Respondent/'Registrar of Companies', Delhi, restraining it to file the Documents. 10. The contention of the 'Appellant' is that the 1st Respondent/'Registrar of Companies' has nowhere prayed that the 'Appellant'/'Company' should remain 'struck off', rather it had prayed that the 'Appellant'/'Company' be directed to file all the pending returns of the 'Appellant'/'Company'. 11. The Learned Counsel for the 'Appellant' submits that as soon as the 'Appellant'/'Company' came to know about the non-filing of 'Statutory Returns', it immediately approach the 'National Company Law Tribunal' to permit them to do the same. 12. The Learned Counsel for the 'Appellant' points out that the 2nd Respondent in its 'Report' dated 10.11.2020 had mentioned that there was no objection on its side, for the 'Restoration' of the 'Appellant'/'Company' and the relevant portion is as follows: "Further, form e-filing database of the assessee, it is observed that no ITR was e-filed by assessee against the aforesaid allotted PAN. However, this Office ....
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.... the same time, however, there is no gainsaying the fact that a greater degree of care was certainly required from the petitioner Company in ensuring statutory compliances. Looking to the fact that annual returns and balance sheet were not filed for almost fourteen years, the primary responsibility for ensuring that proper returns and other statutory documents are filed in terms of the statute and the rules, remains that of the management." 17. In the decision in 'Purushottam Dass' v 'Registrar of Companies', Maharashtra, (1986) 60 Comp. Cas. 154 (Bom) the Hon'ble High Court of Bombay had observed as under: "The object of Section 560(6) of the Companies Act is to give a chance to the company, its members and creditors to revive the company which has been struck off by the Registrar of Companies, within period of 20 years, and give them on the business only after the company judge is satisfied that such restoration is necessary in the interest of justice." 18. In the matter of M.A. Panjwani v Registrar of Companies and Ors. (2015) 124 CLA 109 (Delhi) the Hon'ble High Court of Delhi at paragraph 16 had observed the following: "16. It was submitted on behalf of the Registrar o....
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.... shareholders and other concerned who may be directly or indirectly associated with the business activities of the company. In the circumstances the shareholders of the company took a joint decision and vide consent letter dated May 30, 2009, have decided to revive the company. In the circumstances, this Petition has been filed under Section 560(6) of the Act seeking a direction to the respondents for restoring the company's name in the Register of Companies. Having considered the contention raised by learned Counsel for the petitioner and having gone through the provisions contained in section 560(6) of the Act and the averments made in the petition I am of the view that it would be just and proper to order restoration of the name of the company in the Registrar of Companies. Accordingly, the petition is allowed. The respondent Registrar is directed to restore the name of the company in the Registrar of Companies, treating as if its name had never been struck off from the rolls of the register. The petitioner is directed to deliver the respondent Registrar of Companies a certified copy of this order within the time fixed under Rule 93 of the Rules. The Registrar thereafter s....
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....name of the Company should be restored. 19. As far as records, the claim that the Company was in operation, there were no such pleadings in the Company Petition that although the Company was not in business since 2002, it continued to be in 'operation' even thereafter till the name of the Company was struck off. The additional documents now being relied on were not filed before NCLT and there were no pleadings on this count also. 20. We have heard Counsels for both the sides. Learned Counsel for the Appellant submitted that in the present matter there are documents to show that on complaint of workmen, authority had initiated action and the company was defending the same. It is stated that documents have been filed to show that the property tax was being paid. Reference is made to one Annexure - A7 (page no. (62) to submit that in the "Charges Registered" there is a charge of Punjab & Sind Bank on the property for the Company which is still alive in the records. Learned Counsel submitted that the Company paid property tax in 2011 which was after the date of striking off in 2007. According to the Appellant, it never knew that the name of the Company was struck off. It has been....
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.... additional documents filed by them in this appeal (if not already filed). d) Fresh opportunity of hearing may be given to both sides and the petition may then be disposed of as per law. e) Parties to appear before NCLT on 8th January, 2019." 26. In the Judgment of this 'Tribunal' dated 31.12.2019 in Lakshmi Rattan Cotton Mills Company Ltd. through its Director Sashank Gupta, Kanpur, Uttarpradesh v Union of India, through Secretary, Ministry of Corporate Affairs, (vide Comp. App. (AT) 239 of 2018) wherein at paragraphs 11 and 12 it is observed as under: Para 11. "Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Registrar of Companies leaving all questions open for the Appellant and Respondents to dispute in the Writ Petition for final adjudication by the Hon'ble High Court. Striking off the name of the Company would create difficulties for the Appellant to pursue its remedies before the High Court and in the facts of the matter, when litigation was pending the name of the Company should not have been struck off. Para 12. The particulars show that in spite of Notices the Company did not....
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....o order 'restoration of a Company's name' in the 'Register of Companies', if it appears to it, to be 'otherwise 'just'. 31. Added further, the 'Tribunal' can pass an order of 'Restoration of a Company's name' to the 'Register of Companies', if it is that, it is 'Just And Proper' to restore the name of the Company, then, 'declining' to grant relief just because of third person will be inconvenienced by it, will not be a proper one, in the earnest opinion of this 'Appellate Tribunal'. ENGLISH DECISIONS: 32. In Re Priceland Ltd. Waltham Foresh London Borough Council v Registrar of Companies and Ors. (1997) 1 BCLC 467, 476, 477 (Ch. D) (Companies Court) it is observed and held as under: ".....In other words, the exercise of discretion only arises after the court has been satisfied that (a) the company was at the time of striking off carrying on business or in operation, or (b) otherwise that it is just that the company be restored. The first of these amounts to the court being satisfied that the registrars reasonable beliefs which were the basis for the original order striking the company off, were not in fact correct. The second means that, prima facie, the court has been persu....
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....ore the 'National Company Law Tribunal', Delhi Bench, the Appellants in Company Appeal No.350/252(ND)/2020 (filed under Section 252 of the Companies Act, 2013) for Restoration of the name of M/s. AVS Enterprises Pvt. Ltd. on the Register of Companies maintained by the Register of Companies, NCA, Delhi) had averred that the Company is regularly complying with the 'Income Tax Act' and had filed its 'Income Tax Returns', since incorporation and that the Company has 'assets and liabilities' and is continuously carrying out its business operations by following its objects. Furthermore, the 'Financial Statements' of the Company for the year ending 31.03.2017, 31.03.2018 and 31.03.2019 point out that the Company is a Going Concern and is continuously carrying out its Business Operations. 37. According to the 'Appellants' the Company's Shareholders' intend to run the Business and pay off the 'liabilities' as per 'Balance Sheet of the Company'. In fact, the 'struck off company' at present, is having 'paid-up capital' of Rs.4,99,000/- consisting of 49,900 Equity Shares' of Rs.10/-each and all the 'Shareholders' hold the total paid-up 'Share Capital of the Company' and 'struck off company' w....
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....'Notice' in the form of STK-7 dated 21.08.2017. Because of the fact that the Company's was not carrying on any operations for a period of two immediately preceding Financial Years (as indicated by non-filing of the Financial Statements of the Company for two or more years), the 'striking off' of the present Company was legally a 'justifiable' one by means of an 'Operation of Law'. 40. In short, the 1st Respondent in its 'Reply' before the National company Law Tribunal, New Delhi Bench (Court II) came out with the prayer that if the 'Tribunal' considers the 'Application' for Restoring the 'Name of the Company' in the Register of Companies', then the 'Tribunal' may issue directions to the Appellant for filing all the pending documents of the Company with it within the time specified by the 'Tribunal'. Also, on behalf of the 1st Respondent a relief of 'awarding of costs' in favour of it was sought before the 'Tribunal', as the Company had failed to file its 'Statutory Returns' before it. 'Preferring of an Appeal': 41. It is pointed out that Section 252(1) of the Companies Act, 2013 indicates that 'any person aggrieved by the Order of the Registrar, notifying a 'Company' as dissolved....