National Company Law Appellate Tribunal
Surender Kumar Singh vs Registrar Of Companies on 9 December, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) No. 53 of 2021
[Arising out of order dated 21.12.2020 passed by the National Company Law
Tribunal (New Delhi, Special Bench, Court-II) in Appeal 389/252/(ND)/2020]
IN THE MATTER OF:
1. Surender Kumar Singh
S/O Mr. Raghav Singh
Residence of RZ-1/57, Street-1,
Tuglakabad Extn, Kalkaji, South Delhi,
New Delhi-110019. ....... Appellant No. 1.
2. Sidhi Singh
Residence of Industrial Area,
Buxar, Bihar-802101. ....... Appellant No. 2.
Versus
1. Registrar of Companies
NCT of Delhi and Haryana
4th Floor, IFCI Tower,
61, Nehru Place, New Delhi-110019. ....... Respondent No. 1.
2. Income Tax Department
DCIT, 428-429, Lawyers Chamber,
Block-I, Delhi High Court,
Shershah Suri Marg, New Delhi 110003. ....... Respondent No. 2.
Present:
For Appellant: Mr. Mr. Ashutosh Gupta, Mr. Gaurav Rana and Mr.
Yatharth Jain, Advocates.
For Respondent:- Present but not marked appearance.
2
JUDGMENT
(09th December, 2022) Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013, has been filed by the Appellants being aggrieved and dissatisfied by the order dated 21.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 389/252/(ND)/2020 whereby and whereunder appeal filed by the Appellant Company for restoration of the name of the Appellant Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal.
2. The facts giving rise to this Appeal are as follows:
i) The Appellant Company is a private limited Company was incorporated under the Companies Act, 1956 on 22.02.2002 and is involved in the field of power Generation and Related business having its office at New Delhi. The Appellant Company is having following assets and Liabilities as on 31st March 2017.
Sr. No. Particulars Amount (INR)
1. Long term borrowings Rs. 33,98,098/-
2. Other current liabilities Rs. 13,00,000/-
3. Long term loans and advances -
4. Cash & Cash equivalents Rs. 3,72,176.21/-
ii) The Appellants Company is being continuously operative and the directors
were administrating the functions of the business right since incorporation. The Company Appeal (AT) No. 53 of 2021 3 Company sustained to operate till date and no lag in pursuing operations was made by the management.
iii) The Appellant Company has been approached with the new project as well and the board of directors after analyzing the project feels that the project is in the best interest of the shareholders as well as the society and have agreed to take the same for further endeavours. The Appellant Company will start the new project on the land that was taken on lease by the Appellant Company which was issued to the Appellant Company by Bihar Industrial Area Industrial Development Authority (BIADA) in Bihar measuring 3.50 Acre bearing Plot No. H-4, 5, 6 & 7, C-17(P), C-18, 19, 20, 21, 22 & C-23 on 7th August 2007 for the establishment of power electricity Industry for a lease of 90 years. Thus, it categorically reflects that, Company is in operation and carrying its business effectively from past several years. The Order itself records, the Appellant submitted various documents showing the company was in operation from the date of its incorporation. The latest audited financial statements for immediate three preceding Financial Year ending 31.03.2015, 31.03.2016, 31.03.2017 are also annexed as Annexure-E of the Appeal Paper Book.
iv) The Respondent No. 1 struck off the name of the Appellant Company from the registrar of companies due to default in statutory compliance and failure to file return since 31.03.2013. The Respondent initiated proceedings under Section 248 of the Companies Act, 2013 and finally struck off the name of the Appellant Company from its register vide its Notice No. ROC/DEL/248(5)/STK-
7/2879 dated 30th June 2017 and vide serial no. 14919 of the list of companies, Company Appeal (AT) No. 53 of 2021 4 whose name were sought to be struck off due to default in Statutory Compliances. Thereafter, being aggrieved by the notice of the Respondent No. 1 of striking off, the Appellant Company approached the Tribunal under Section 252 of the Companies Act, 2013 for revival of the Appellant Company and after hearing both the parties, the Tribunal passed the impugned order which led to filing of this Appeal.
3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that the Tribunal while passing the impugned order has erred in law and fact by not considering that the Appellant Company long term borrowings of Rs. 33,98,098/- which are still to be paid back to the Creditors. The Tribunal also failed to consider the fact that the Appellant Company has fixed assets worth Rs. 43,10,069.45/- which are still lying with the Company and the same cannot be utilized or disposed off while the Company is struck off. Further, the Tribunal has also not considered the fact that the huge cash & cash equivalents of Rs. 3,72,176.21 and Financial Statements for the year 2014-15, 2015-16, 2016-17 which shows that the Company was in operation. The Tribunal has erred in fact and law by not appreciating the fact that the Company had taken land admeasuring 3.50 Acre bearing Plot No. H-4, 5, 6 & 7, C-17(P), C-18, 19, 20, 21, 22 & C-23 on lease of 90 years in Bihar on 7th August, 2007 for establishing of power electricity Industry which in itself is ample to corroborate that the company was in operation at the time of alleged Strike Off by the Respondent No. 1/Registrar of Companies. The Ld. Counsel for the Appellants relied on several judgments Company Appeal (AT) No. 53 of 2021 5 passed by this Tribunal wherein this Tribunal directed the restoration of the Appellant Company in the Register maintained by the RoC, which are hereunder:
• Khetan Granite Private Limited Vs. Office of Registrar of Companies, Jharkhand, MANU/NL/0017/2020.
• Culcutta Rubbar Factory Pvt. Ltd. and Ors. Vs. V Registrar of Companies, Delhi and Haryana, MANU/NL/0602/2019.
• Insuflex Ind Private Ltd. Vs. Registrar of Companies, Maharashtra and Ors., MANU/NL/0622/2019.
• Basant Kumar Berlia and Ors. V Registrar of Companies, West Bengal Nizam Palace and Ors., MANU/NL/0031/2019.
4. On the other hand, the Respondent No. 1 / Registrar of Companies in his reply stated that as per available records on MCA 21 portal, the last Directors of the Company namely Surender Kumar Singh and Sidhi Singh, filed its financial statements till financial year 31.03.2012, due to which the Respondent No. 1/ROC had reasonable cause to believe that the Appellant company was not in operation and in terms of provision of Section 248(1) Notice was sent to the Appellant company and also to its directors in March 2017 by invoking the provisions of Section 20 of the Companies Act, 2013. After expiry of time as mentioned in notice published/sent and non-receipt of any objection from the company/directors, Dissolution in form STK-7 having effect from 07.06.2017 was published on the website of Ministry of Corporate Affairs on 07.06.2017.
Further, it is stated that since the Company was neither able to prove that it was carrying any business before it was strike off nor have produced any supporting Company Appeal (AT) No. 53 of 2021 6 information for just and equitable ground for revival before the Tribunal, therefore, in view of the above, the present Appeal deserves to be dismissed.
5. On the other hand, the Respondent No. 2/ Income Tax Department in his reply stated that in connection with the case of M/s Poorvanchal Urja Pvt. Ltd. (PAN: AACCP7429D) is assessed to tax in Ward 20(1), New Delhi. In the case, as per ITBA portal, the following demands are outstanding:
Sl. No. Assessment Year Demand Outstanding (in Rs.)
1. 2013-14 860/-
2. 2017-18 39,260/-
3. 2019-20 1000/-
Further, the assessee company has filed its ITR up to assessment year 2020-21 and as per record, no such income tax proceedings are pending as on date in Ward, however, proceeding may be pending before the faceless assessment unit which cannot be ascertained by the Income Tax Office. The Income Tax Department has no objection with regard to restoration of M/s Poorvanchal Urja Pvt. Ltd. which has been struck off by the Registrar of Companies.
6. After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Financial Statements for the year 2014-15, 2015-16, 2016-17 and Income Tax Return of the Appellant Company shows that the Appellant Company is having substantial movable as well as Company Appeal (AT) No. 53 of 2021 7 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 (New Delhi, Special Bench, Court-II) as well as Registrar of Companies, NCT Delhi & Haryana is not sustainable in law.
7. In view of the aforenoted, we set aside the impugned order dated 21.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 389/252/(ND)/2020. The name of the Appellant Company be restored to the Register of Companies subject to the following compliances.
i) Appellant shall pay costs of Rs. 1,00,000/- (Rupees one Lakh) to the Registrar of Companies, NCT Delhi & Haryana within 30 days.
ii) After restoration of the Company's name in the Register maintained by the RoC, the Company shall file all their Annual Returns and Balances Sheets. The Company shall also pay requisite charges/fee as well as late fee/charges as applicable.
iii) Inspite of present orders, RoC will be free to take any other steps punitive or otherwise under the Companies Act, 2013 for non-filing/late filing of statutory returns/documents against the Company and Directors.
The instant Appeal is allowed to the above extent. Company Appeal (AT) No. 53 of 2021 8
8. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (New Delhi, Special Bench, Court-II), forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Mr. Kanthi Narahari] Member (Technical) New Delhi 09th December, 2022 R. Nath.
Company Appeal (AT) No. 53 of 2021