TaxTMI 
TaxTMI 
2023 (12) TMI 1152
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....he name of the Company, Agerson Telecommunications Private Limited, in the Register maintained by the Registrar of Companies (`RoC'). The registered office of the Company is situated at 10/62, Kirti Nagar, Industrial Area, New Delhi - 110015 and the CIN No. is U32101DL1988PTC032890. 2. The relevant facts of the case, as given in the NCLT Order dated 24.09.2021 are as under: "3. A sweeping action was initiated by the ROC, at the instance of MCA, in striking off the names of several Companies who had failed to file their Statutory Returns. The Appellant had failed to file its Financial Statements and Annual Returns since incorporation thereby giving rise to the surmise that the business of the Company was not in operation. Consequently, its name was struck off by the Respondent from the Register of Companies under Section 560(5) of the Companies Act, 1956 on 31/05/2007 vide gazette notification dated 23.06.2007 (sl. No. 1799, page 159 of Memo of Appeal). They admit their default in carrying compliances but submit that the same was unintentional and due to lack of professional support and guidance and that their legal heir/successors were unaware about the existence of the....
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....tements that there was 'Zero' revenue from operations in all financial year, which fails to support the claim of the Company that it was carrying on any business. 8. That vide order dated 11.03.2021, the last opportunity was given to the IT Dept to file the report but till 11.08.2021, no report had been filed. Therefore, the right to file report was closed vide order dt. 11.08.2021. 9. We have heard the Ld. Counsel for the appellant and the AROC and perused the averments made in the memo of appeal and the reply. 10. It is seen that the Appellant has failed to produce the audited Balance Sheet to show the Company had revenue from operation for the immediate two preceding Financial Years when the name of the Company was struck off by the RoC. It is further seen that the Appellants in the Memo of Appeal admit this fact that there is no revenue from operation from Financial Year 2014-15 to 2019- 2020. Therefore, we are of the considered view, the Appellant Company has failed to produce any document show that the Appellant Company had revenue from operation or carrying on business at the time when the name of the Company was struck off by the Registrar....
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....ted 15.10.1998 and copy of Notices received from RIICO. 4. While dismissing the Appeal of the Appellants herein, NCLT had observed that there was no revenue from operation in the immediately preceding two Financial Years. The NCLT relied upon the Judgement of this Tribunal in the case of `Alliance Commodities Private Limited' Vs. `Office of Registrar of Companies-West Bengal', in Comp. App. (AT) No. 20 of 2019, and it was noted that the subject Judgement has been affirmed by the Hon'ble Supreme Court in the matter of `Alliance Commodities Private Limited' Vs. `Office of Registrar of Companies-WB', reported in Civil Appeal No. 7258 of 2019, vide Order dated 23.09.2019. 5. Learned Counsel for the Appellant submitted that Company was incorporated with two Directors namely Late Sh. Nathu Ram Aggarwal and Late Smt. Ram Devi Aggarwal. Late Sh. Nathu Ram Aggarwal died on 10.08.2014 and Late Smt. Ram Devi Aggarwal died on 10.02.2009, leaving behind their sons and daughters as their lawful legal heirs and successors. Therefore, non-filing of the Financial Statements and Annual Returns by the Promoters/Shareholders was neither wilful nor intentional but due to lack of professional supp....
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....nience: a. The appellant company was having NIL assets, liability and turnover. b. In the said matter, the appellant company was not engaged in the business for which it was incorporated but was advancing money to corporate persons in violation of Section 186 (1) of the Companies Act, 2013 as illegal transactions as a shell company. c. Indulging in business activity not falling within the ambit of object of the Company or not being incidental or ancillary thereto cannot be termed a legitimate business for demonstrating that the Company was in operation. d. As shell company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression "or otherwise" which would be travesty of justice besides defeating the very object of the Company.... Thus from the above findings of the judgment, it can be clearly inferred that the said appeal is not allowed to invoke the expression "or otherwise" solely on the ground of carrying unlawful business such as advancing loans to co....
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....nies, NCT Delhi & Haryana is not sustainable in law." * In `Dashmesh Impex Pvt. Ltd. & Ors.', cited supra, wherein it was held by this Tribunal that if the Appellant Company is having substantial movable as well as immovable assets, it cannot be said that the Appellant Company is not carrying on any business or operations. In para 5 of the Judgement, it has been held as follows: "5. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the financial statements 2016-2017, 2017-2018, 2018-2019, 2019-2020 and Income Tax Return of the Appellant Company 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 passed by the NCLT, New Delhi as well as RoC, NCT Delhi & Haryana is not sustainable in law." * In `Tweak The Future Innovations Private Limited', cited supra, wherein it was held by this Tribunal that "Operation" in commercial sense means developing business platform also. The relevant para 17 of the Judgement is reprod....
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....d be just and equitable to restore the name of the company to even avoid further legal proceedings." 12. Learned Counsel representing the Office of the RoC, Delhi submitted that that Company was incorporated on 22.08.1988 and since launching of MCA-21 Portal in 2006, no records of the Annual Return & Balance Sheet were submitted by the Appellant Company. Moreover, no subsequent documents had been filed by the Company to obtain the status of a `Dormant Company' under section 455 of the Companies Act, 1956. Hence, RoC had reasonable cause to believe that the Company was not in operation. 13. It is stated that as per the record available with the Office of RoC and submission made by the Appellant, Company has not filed any form since incorporation i.e., since 1988 or since launching of MCA-21 Portal in 2006 and accordingly no record is available with respect to shareholding of the Company. 14. It is stated that through its Affidavit dated 20.04.2023, Appellant has submitted extract of `Register of Member' and following is highlighted: i. The date of transfer of share has been mentioned 20.10.2014 & 15.03.2009 which is the date after the Company was struck off ....
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....s Registrar of Companies, NCT Delhi & Haryana is not sustainable in law." 17. The relevant portion of the Judgement of this Tribunal dated 06.12.2019, in the matter of `Calcutta Rubber Factory Pvt. Ltd. & Ors.' Vs. `Registrar of Companies, Delhi and Haryana', 2019 SCC OnLine NCLAT 851, is given below for ready reference: "11. The company is having a lease hold plot allotted by HUDA and the appellant company undertakes to file the returns and the financial statements after the period 2012-13. The company was carrying on business but was running into losses which accumulated to Rs. 630589/- from the year ending 31st March, 2013 and loss of Rs. 3500/- and Rs. 3500/- from the year ending as on 2016-17, 2017-18. From these facts it cannot be said that the company is not carrying on any business. 12. From the above discussions and observations we have come to the conclusion that it would be just that the name of the company is directed to be restored........." 18. Since the Company Agerson Telecommunications Pvt. Ltd. is having substantial assets and liabilities, it cannot be said that the Company is not carrying on any business for operations. 19. Considering ....