TaxTMI 
TaxTMI 
2024 (3) TMI 292
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....t, 2013 and had struck off the name of the company from its register vide Dissolution No.ROC-Del/248(5)/STK-7/2879 dated 30.06.2017. The name of the appellant company was included at Sr. No.4467 of the list of companies whose names were struck off due to default in non-filing of the Financial Statements and Annual Returns. 3. The Learned Tribunal had dismissed the appeal of the Petitioner with following reasoning: "The Ld. Counsel appearing for the Appellant submits that though there is no Revenue reported from Operations but there is a Sale Deed executed in the name of the Company on 18.11.1983, which is placed at page no. 59 of the Application. On perusal of the document, we notice that it is a photocopy of the Sale Deed. In the course of hearing, the Appellant was given an opportunity to exhibit the latest land revenue/ rent receipts to demonstrate that the appellant is still in possession of the land. The Appellant failed to produce any document to show that the land in question is still in the name of the company and the Land revenue/rent is being paid regularly by the Appellant. Ld. Counsel appearing for the Appellant submitted that the order may be passe....
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....y the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term "or otherwise" cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. A 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 a travesty of justice besides defeating the very object of the Company..." The said order is also confirmed by the Hon'ble Suprem3e Court in the matter of Alliance Commodities Pvt Ltd Vs Office of Registrar of Companies -WB (CA No.7258 of 2019) vide order dated 23.09.20219. So far as the decisions relief upon by th....
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....010. At that time the two sons of Mr. Manohar Lal Nagpal had settled down with their respective families at Abhor, Punjab and one of the director was staying in Chandigarh and his fourth son was living at Zirakpur, Punjab. Since all the sons of Mr. Manohar Lal Nagpal were residing at different places, they could not handle the business and could not file the annual returns and/or the financial statements. 8. A public notice dated 27.04.2017 was then published at the website of Ministry of Corporate Affairs and the name of the company was struck off. 9. It was alleged the appellant company is still an sole absolute owner and in possession of the property/land situated at Bhakti Bhawan Estate, Kulri Mussoorie, Uttarakhand and now all the four directors intend to start business again with each other, collaborating with developers to carry out the business objective of the company. The company has an authorised capital of Rs.1,00,000/-; Issued and subscribed capital of Rs.1,00,000/- and paid up capital of rs.1,00,000/- and a valuable asset viz running in crores. The financial reports with balance sheets and profit and loss accounts for the years 2011-12, 2012-13, 2013-14, 2014-15....
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....al may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies." 14. Now the term otherwise just and equitable under Section 252(3) of the Companies Act, 2013 envisage revival/restoration of the company on the rolls of ROC if it is not a shell company or a company dealing with siphoning funds or advancing loan to sister concern. Rather they have a fixed substantial assets worth crores. The company is still sole absolute owner and in possession of the property situated at Bhakti Bhavan Estate, Kulri, Mussoorie and if the company's name is not restored then, of course, it would result to an irreparable loss and prejudice to the appellant and the fixed assets of company would be a deadlock and would result in wastage of property which is, of course, contrary to the public policy. Admittedly the property is free from all encumbrances. 15. Though the Ld. NCLT has relied upon the ratio of Alliance Commodities Vs Office of ROC, West Bengal being Company Appeal (AT) 20/2019 which is also c....
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.... ROC; Company Appeal (AT) No.154 of 2021 this Tribunal held:- "10. After hearing the parties and going through the pleadings made on behalf of the parties, we observe that the Appellant Company is in litigation therefore, the Company has not filed the financial statements and also without giving opportunity of hearing, the Respondent No. 1/Registrar of Companies struck off the name of the Appellant Company's from the Register maintained by him, but in view of the fact and also the Bank Statements of the Appellant Company from 2015 -2018 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 National Company Law Tribunal (Court V, New Delhi) as well as Registrar of Companies, NCT Delhi & Haryana is not sustainable in law." 20. In `Dashmesh Impex Pvt. Ltd. & Ors. Vs ROC: Company Appeal (AT)No.116/2021 this Tribunal 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 statem....
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....ight spot. Admitted the directors of the appellant company are optimistic to carry out the operations given the assets and infrastructure of the appellant company. Hence restart of housing business is very much possible, more so when an expression of interest has been received from Brentwood Hotels. Reference may also be drawn to Santa Claus Toys Pvt Ltd V. Registrar of Companies, Deepsone Non Ferrous Rolling Mills Pvt Ltd V. ROC NCT of Delhi and Haryana and Sohal Agencies Pvt Ltd V. Roc, Delhi and Haryana. 23. We find though the annual accounts of the years stated above though were duly prepared but could not be filed, for the reasons stated above, the non-compliance appear to be inadvertent, non-deliberate and unintentional. Admittedly the appellant is ready to comply with all the statutory provisions once the name of the company is restored by the ROC. Thus we find no reason why its name should not be restored as no prejudice would be caused to the ROC if its name is restored. It is not the case of the ROC that the appellant is a shell company or was at any time engaged in syphoning of funds. 24. The appellant undertakes that it shall be more cautious and vigilant in futur....