TaxTMI 
TaxTMI 
2024 (2) TMI 95
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....represented by Mr. K. Gaurav Kumar, Company Secretary that the Appellant Company has been active since its Incorporation and has identified during the period 2011 - 2012 certain future Projects and also pumped in additional Capital to the tune of Rs.19 Lakhs and that the Annual Returns and the Balance Sheets of the Company could not be filed with the Respondent / RoC, due to inadvertence and lack of Professional expertise and therefore the name of the Company was Struck Off and resultantly Form STK-7 was issued on 05.07.2017. MA/06/CHE/2021 was filed by the Appellant / Applicant that the DIN No. of the Appellant Company has also been Struck Off. The Learned Company Secretary for the Appellant submitted that a Writ Petition was filed before the Hon'ble Madras High Court in WP No. 8590 / 2018 and WMP No. 10520 / 2018, in which, the Hon'ble Madras High Court, passed an Order of Stay on disqualification of Directors referring to the Common Order, passed in WP No. 6896 / 2018 and WMP No. 8544 / 2018. 3. The Learned Company Secretary for the Appellant drew our attention to the relevant Paragraphs in WP No. 6896 /2018 and in WMP No. 8544 / 2018, which read as hereunder : 4. Mr. K. G....
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.... Hon'ble Madras High Court, the CODS Scheme, 2018 was extended and may be made applicable, such benefits given to those Companies which were Struck Off and whose Directors preferred these Writ Petitions, and therefore asking the Appellant herein to pay the due penalties under the CODS Scheme and simultaneously filed a Section 252 Company Petition and further make payments under Penalties would construe `Doctrine of Double Jeopardy'. 6. The Learned Company Secretary placed reliance on the following Judgments in support of his case that `Concept of Justness', must be ascertained and determined, based on the facts of each case and that the case of the Appellant which provides Mental Healthcare to the Society and also has several Creditors mentioned in the Balance Sheet, ought to be considered, based on the ratio of these Judgments. Sr. No. Citation 1 Helen C. Rebella Vs. Maharashtra S.R.T.C.: 2 Intec Corporation Private Ltd. Vs. The Registrar of Companies, NCT of Delhi & Haryana in CO.PET.191/2016: 3 Tweak the Future Innovations Pvt. Ltd. Vs. Registrar of Companies, Punjab & Chandigarh in CA(AT) No. 300/2019: 4 Siddhant Garg & Anr. Vs. Registrar of Com....
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....g the Order dated 12.01.2022, NCLT has also delved upon the fact that the Appellant Company was not carrying on any business or any operation at the time of Strike Off and now the Appellant has furnished proof of filing of documents and payment of Fees under the CODS Scheme 2018. It is submitted in the Written Submissions by the Appellant that the Appeal may be considered on merits. Assessment : 9. Simply put, the failure to file Returns by a Company under the Companies Act, 2013 (hereinafter referred to as `The Act'), has broadly two consequences namely, `disqualification of the Directors of the subject Companies', if there is a 3 year failure of filing of the Returns and the Company can be Struck Off from the Register of the RoC, if there is a two year period of default of filing of the Returns. Succinctly put, the disqualification of Directors of a Company is distinctly different from the removal of the Company from the Register of the RoC. At this juncture, it is relevant to reproduce the reliefs sought for by the Appellant Company in this Appeal. (Emphasis Supplied) 10. From the aforenoted reliefs prayed for in this Appeal, it can be clearly seen that the Appellant....
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.... non-filing of Returns, the Company was `Struck Off' from the Register of RoC. It is also interesting to note that the Hon'ble Madras High Court Order dated 26.03.2018, relied upon by the Learned Company Secretary is only an Interim Order whereunder, the Hon'ble Madras High Court has directed the matter to be posted after a period of 8 weeks. 13. We find force in the contention of the Learned Counsel for the Respondent that in the Final Order of WP No. 6896 / 2018 dated 05.11.2019, it is held by the Hon'ble High Court, that a Director can be appointed in any other Company without hindrance, once the CODS Scheme has been complied with and therefore the direction given by the Hon'ble High Court in the Section 164 (2) (a) is distinctly different from any Notice / Direction issued under Section 248 of the Companies Act, 2013. 14. On a pointed query from the Bench, as to whether, the Appellant Company is ready and willing to comply all the provisions contemplated under Law and pay the Requisite Charges / Fee as well as Late Charges / Fee, the Learned Company Secretary Mr. K. Gaurav Kumar has consented to comply with the same. Having regard to the nature of the business of the Appe....