National Company Law Appellate Tribunal
Tarik Klair vs Registrar Of Companies Nct Of Delhi And ... on 24 April, 2023
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COMPANY APPEAL (AT) No.115 of 2021
(Arising out of Judgement/Order dated 27.07.2021 passed by
National Company Law Tribunal, Chandigarh Bench, Chandigarh
in CP No.49/Chd/Hry/2020)
In the matter of:
Tarik Klair, Director/Member
Of M/s Opax Web Pvt Ltd,
678, Urban Estate, Phase I, Jalandhar, Appellant
Vs
1. Registrar of Companies (Delhi & Haryana)
4th floor, IFCI Tower, 61,
Nehru Place, New Delhi-110019.
2. Income Tax Department
Through Central Registry,
Aayakar Bhawan, Sector 17, Chandigarh.
3. Manpreet Singh Sachdeva,
S/o Sh Manmohan Singh
(Another Director/Member of M/s
Opax Web Pvt Ltd), H.No.6262/18, Idgah Road,
W. No.3, Block No.1,
Ambala Cantt 133001 Respondent
For Appellant: Mr Mast Ram, Mr. Subhash Saini, PCSs.
For Respondent : Mr. Anil Kumar Agarwal, Advocate for R3.
Mr. Yogesh Putney, Sr. Standing counsel for Income Tax/R2.
JUDGEMENT
(24th April, 2023) JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL) The present appeal has been preferred under Section 421(1) of the Companies Act, 2013 against a judgement dated 27.07.2021 2 passed by National Company Law Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as NCLT). By the said judgement, learned NCLT has dismissed CP No.49/CHD/Hry/2020 which was filed under Section 252(3) of the Companies Act, 2013.
2. In the present appeal the appellant has prayed for following reliefs:
a) Allow the present appeal and set aside the impugned/final order dated 27.07.2021 passed by the Learned National Company Law Tribunal, Bench at Chandigarh in CP 49/Chd/Pb/2020.
b) direct the Respondent No.1 to restore the name of the company i.e. M/s Opax Web Private Ltd in the register of companies maintained by the Respondent No.1; and
c) pass such other directions and make such provisions as deemed just for placing the name of the Company i.e. M/s Opax Web Pvt Ltd and its directors in the same position as nearly as may be as if the name of the Company i.e. Opax Web Pvt Ltd had not been sturck off from the register of companies; and 3
d) set aside the notification published by the Respondent No.1 for striking off the name of the Company i.e. M/s Opax Web Pvt Ltd to the extent the same is applicable to the Company; and
e) Pass any other or further order or direction, which the Hon'ble Appellate Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice.
3. The short fact of the case is that M/s Opax Web Pvt Ltd was incorporated under the provisions of the Companies Act, 2013 on 24.12.2013 vide Registration number CIN No.U72300HR2013PTC051411 as a Private Limited Company and registered with the office of Registrar of Companies, Delhi & Haryana (Respondent No.1). The said company has its registered office since incorporation at address at H.No.116, Guru Nanak Marg, Opp. Govt College, Ambala, Haryana, Pin Code 133001, which is the residential address of Respondent No.3.
4. The main object for incorporation of the company was to carry on the business of web applications, information technology, software development, computer hardware, web sites development and all types of software and information technology related activities including Business Process Outsourcing. Knowledge 4 Process Outsourcing, process automation, graphic designing, multimedia presentations and web hosting services whether in India or in abroad. To assemble, market, buy, sell, import, export to act as agents, or otherwise deal in computers, computer system, software, computer goods and components, computer hardware, computer peripherals and accessories, whether in India or in abroad.
5. In the company there were two directors namely the appellant namely Mr Tarik Klair, who as a director has preferred the present appeal on behalf of M/s Opax Web Private Limited and another was Mr. Manpreet Singh Sachdeva, who has been arrayed as Respondent No.3 in the present appeal. After incorporation of the company, the company filed its financial statement till financial year 31.03.2015 and thereafter no statement was filed. The Registrar of Companies who is Respondent No.1 after noticing that continuously for last two financial years no financial statement was filed on behalf of the company, in terms of provisions contained under Section 248(1) of the Companies Act, 2013, issued notice to the company and also to its directors. The appellant company was issued notice as STK-1 in the month of May, 2018. Thereafter in terms of Section 248(4) of the Companies 5 Act public notice in Form STK 5 was issued to the appellant company by making publication in official Gazette on 18.06.2018.
These notices were also placed on the website of the Ministry of Corporate Affairs. The public notice in Form STK-5A was also published including the name of the appellant company in prescribed newspapers on 18.5.2018. In absence of any response after expiry of the time fixed as per public notice under the provisions contained in Section 248(5) of the Companies Act for dissolution of the company in Form STK 7 with effect from 8.8.2018 was published on the website of Ministry of Corporate Affairs. Meaning thereby that company's name was struck off from the register of the companies of the ROC on 8.8.2018.
6. The appellant thereafter in the year 2021 filed an appeal before the NCLT under the provisions of Section 252(3) of the Companies Act, 2013 which was numbered as CP No.49(CHD)Hry/2020. After hearing the parties and considering the fact that the company was not operating prior to striking off the name, the learned NCLT vide its judgement dated 27.07.2021 dismissed the petition filed by the appellant herein which has been assailed in the present appeal.
67. Mr. Mast Ram, learned PCS has appeared on behalf of the appellant. Assailing the impugned judgement it was submitted by learned PCS that the appellant company has placed balance sheets prepared by the Chartered Accountant which was reflective of the fact that the company was operating. However, due to unavoidable circumstances reports were not submitted before the ROC.
According to Mr. Mast Ram, learned PCS, learned NCLT on the basis of facts disclosed in the balance sheet prepared by the CA was required to pass an order for restoring the company to the record of the Registrar of Companies. Besides making oral submissions he also submitted that a detailed Notes of written submission has been filed. The Notes of written submissions filed by the appellant is reproduced hereinbelow:
"the Ld. Tribunal erred in declining to restore the name of M/s Opax Web Private Limited (hereinafter referred as "the Company"), when there were cogent reasons justifying its restoration (Refer from para no. 9.1 at page no. 31 to para no. 9.9 at page no. 33 of the appeal) That the impugned order is against the provisions of Section 252(3) of the Companies Act, 2013 as the Ld. Tribunal erred in dismissing the CP No. 49/Chd/Hry/2020 and held that "the company was not in operation prior to the date of striking off its name", whereas the provisions of section 252(3) provides.....if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or .". Even the Ld. Tribunal escaped to consider the financial statements of the Company for the financial years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 (verified from bank statements and certified by the Statutory Auditor), ITR for the financial year 2018-19 and after 31.03.2019 copy of Bank Statements of the company on records. Even the turnover achieved by the company vide para x) at page no. 23 of the appeal, covering the period prior, on and after the date when the 7 name of the company was struck off, which was not denied by the respondent no. 3 has not been taken into account by the Ld. Tribunal.
2.That the Ld. Tribunal erred in declining to restore the name of Opax Web Pvt. Ltd. and held that "On the other hand, 50% shareholder and the second and remaining Director of the company who is the third respondent in the CP categorically contended that the company was not in operation prior to the striking off its name" despite the fact that the issues raised by respondent no. 3 are not within the ambit of section 252(3) of the Companies Act. 2013 (refer paras 2(vi) and 2(vil) at page no. 186 of the appeal) and not substantiated with documents. The Ld. Tribunal even escaped to notice that the respondent no. 3 raised issues (although not within the ambit of section 252(3) of the Act) in restoring the name of the Company with mala fide intention as he is grabbing the business of the Company to his Firm namely ProHosterz IT Solutions and with a motive to stall the process of law and evade the statutory liability of paying filing fees, taxes, unsecured loan payables etc. as admittedly, vide para 2(vi) at page no 186 of the appeal, respondent no. 3 due to his personal matrimonial disputes, was out of affairs of the company for about 3 years, and admittedly respondent no. 3 failed to honour his statutory obligations of filing returns with respondent no. 1.
3.That the Ld. Tribunal escaped to notice that the matter was to be considered from a broader perspective keeping in view the interests of various stakeholders including employees and larger social interest (not limiting to the personal issues raised by Respondent no. 3, although the same are outside the ambit of section 252(3) of the Act) which can be better sub-served by restoring the Company struck off for mere statutory non-compliances as by restoring the name of Opax Web Private Limited, the legal rights of any stakeholder including the respondent no. 3 were neither jeopardized nor infringed. (Refer para no. 31 at Page no. 217 of the Appeal). Rather, it is the appellant along with all other stakeholders except respondent no. 3, who shall suffer irreparable loss, hardship and will be highly prejudiced if the present appeal is not allowed and the name of the company is not restored on the Register of Companies. (refer para nos. 2(i) 2(vi) and 2(vii) at page nos. 183 and 186 of the appeal).
4.That the Ld. Tribunal also escaped to notice the effect of its refusal to restore the name of Opax Web Private Limited which undoubtedly would have a deleterious effect on the very existence of the Company in as much as the Appellant would no more be able to defend the business of the Company grabbed by respondent no. 3 and would get dismissed into oblivion thereby sounding a death-knell to the very existence of the Company as the company is neither a shell company nor any illegal transaction has taken place in the company.
5.That the Ld. Tribunal escaped to notice that the issues raised by respondent no. 3 while objecting to restore the name Opax Web Private 8 Limited undoubtedly are outside the ambit of Section 252(3) of the Companies Act, 2013, as the respondent no. 3 submitted that due to his matrimonial disputes, he is not associated with the company since 2017 (refer para 2(vi) at page no. 186 of the appeal) and the balance sheets for the financial years 2015-16, 2016-17, 2017-18 and 2018-19 covering the period from 01.04.2015 to 31.03.2019 (verified from the bank statements and certified by the Statutory Auditor of the company) attached with the application can't be treated as audited ones (refer para 2(111) which starts from page no. 184 of the appeal) but the respondent no. 3 has not opposed the reliefs sought by the appellant on any grounds based on which Ld. Tribunal could dismiss the application filed under section 252(3) of the Companies Act, 2013 and even the respondent no. 3 has not denied the turnover achieved by the company during the financial years 2014-15, 2015-16, 2016-17, 2017- 18 and 2018-19 (covering the period prior, on and after the date i.e.
08.08.2018 when the name of the Company was struck off by respondent no. 1) (Refer para para x) at page 23 of the appeal). Hence the respondent no. 3 indirectly supported the appellant and impliedly accepted the facts that the Company was carrying on business and operations before, on and after the date i.e. 08.08.2018, when its name was struck off by the respondent no. 1 registrar of Companies.
6.That the Ld. Tribunal escaped to notice that the respondent no. 3 cannot be heard to say that the appellant admittedly a Director, Shareholder and even creditor of Opax Web Private Limited having stakes in the Company, was not entitled to seek restoration of name of the Company in the Register of Companies as due to personal matrimonial disputes of the respondent no. 3, Respondent no. 3 is not associated with the Company since 2017 and was totally out of the affairs of the Company. Respondent no. 3 has succeeded to rawhide his malafide intention to thwart the course of law on the face of his admission that due to his personal matrimonial disputes he is not associated with the company since 2017. Consequently Respondent no. 3 indirectly admitted that due to his disassociation with the company since 2017, he could not honour his statutory obligation to file returns with the office of respondent no. 1 and the name of the Company was struck off. Ultimately it is the respondent no. 3, who must be made liable for all the penalties, fines to be imposed by this Appellant Tribunal/respondent no. 1 and/or additional fees to be paid, if this appeal is allowed after restoration of name of the Company as due to misleading statements of respondent no. 3, which are although outside the ambit of section 252(3) of the Act, the company could not avail the benefits of amnesty from prosecution and exemption from payment of additional fees, granted by the Ministry of Corporate Affairs vide Company Fresh Start Scheme, 2020 (CFSS-2020), which expired on 31.12.2020. (refer para no 2 (1) starts from page no. 183 of the appeal).
7. That the Ld. Tribunal missed to appreciate that respondent no. 1 Registrar of Companies and respondent no. 2 Income Tax Department have not raised any grounds of objections, whatsoever for allowing the 9 application for revival of the Company Le. M/s Opax Web Private Limited.
8.Concealment of material Facts by the Respondent no. 3: no. 3 has concealed about i) transfer of business of Opax Web Private Limited to his firm namely ProHosterz IT Solutions ii). Respondent no. 3 has not submitted declaration that he has disclosed his share of ownership of/income from the Company in his personal disputes as the respondent no. 3 who managed to maintain distance from the company since 2017 so his wife with whom respondent no. 3 had matrimonial disputes should not be able to claim financial assistance.
9.Misleading/contradictory statements made by the Respondent no. 3:
Vide para 2(vi) at Page no. 186 of the appeal (reply to Ld. Tribunal by respondent no. 3), the Respondent no. 3 has stated that "respondent no. 3 is not associated with the Company since 2017 as he was having serious matrimonial disputes with his wife and for about 3 years he was totally out of the affairs of the Company". On the other hand, in para 2(ii) at Page no. 184 of the appeal (reply of respondent no. 3) respondent no. 3 stated that "it is wrong and denied that respondent no. 3 stopped cooperating and refused to sign the balance sheets for the financial years 2015-16, 2016-17, 2017-18 and 2018-19". Hence from the above contradictory statements made by the respondent no. 3 it is clear that the respondent no. 3 deliberately tried to mislead the Hon'ble Tribunals in order to succeed in his ill motive to grab the business of Opax Web Private Limited to his firm i.e. Prohosterz IT Solutions.
10.. That the Ld. Tribunal escaped to notice that the Respondent no. 3 deliberately tried to mislead the Hon'ble Tribunals by associating his personal matrimonial disputes with the Company and its management vide para 2(vii) at page 186 of the Appeal, where the respondent no. 3 stated that "That respondent no. 3 is not willing to do any business in association with the applicant" (appellant herein). The Company is a separate legal entity, which is distinct from its members and directors. Hence admittedly disassociation of respondent no. 3 with the company since 2017 due to his personal matrimonial disputes made the respondent no. 3 personally liable for all costs, penalties, fines, additional fees etc. as respondent no. 3 neither proposed the name of any other director in his place due to his personal matrimonial disputes nor filed the statutory returns from the financial year 2015-16 onwards with the office of respondent no. 1, which resulted in struck off the name of the company.
Further it is submitted that from the bank statements, Income Tax Return, Unsecured Loan payable, other documents and balance sheets (which were verified from Bank Statements for the relevant period and certified by the statutory auditor of the company) pertaining to the financial years 2015-16, 2016-17, 2017-18 and 2018-19 of the company on records, it is unequivocally clear that the company has generated revenue of Rs. 24,33,999.89, Rs. 22,83,946.66, Rs. 3,18,491.27 and 10 Rs. 3,10,820/- respectively and the Company is a running enterprise since incorporation, which period (from 01.04.2015 to 31.03.2019) covers the period prior, on and after the date i.e. 08.08.2018, when the name of the company was strike off by the respondent no. 1.
8. Taking clue from aforesaid written submission it has been argued the reliefs sought for in the present appeal is needed to be granted in favour of the appellant and judgement impugned may be set aside.
9. In this case Mr. Yogesh Putney, learned Sr. Standing Counsel has appeared on behalf of Respondent No.2/Income Tax Department. He supporting the impugned judgement submitted that there is no error in the impugned judgement.
10. Mr. Anil Kumar Agarwal, learned counsel has appeared on behalf of Respondent No.3 who is none else but 50% shareholder of the company in question. Mr. Agarwal, learned counsel for the Respondent submits that in the company in question there were only two directors i.e. one was appellant Mr. Tarik Klair and another is Respondent No.3 Mr. Manpreet Singh Sachdeva. Both the directors were having 50% shareholding in the company in question. He submitted that after submission of last statement before the ROC which was for the financial year 2014-15 the company remained completely inoperative. Thereafter dispute 11 arose in between appellant No.1 and Respondent No.3. He further made an allegation that the appellant creating another company started to obtain business and he wanted to convey as if the present company in question was operating. He has further argued that appellant has incorrectly placed reliance on balance sheet prepared by the CA. According to Mr. Agarwal such balance sheet has got no entity since the said balance sheet was neither approved by the Board's Resolution nor there was any approval from the Respondent No.3 who was 50% shareholder of the company. Besides making oral submission he has also referred to the written submission filed on behalf of Respondent No.3.
Learned Counsel for the Respondent No.3 has also placed reliance on the written submission. We may propose to incorporate the written submission filed on behalf of the Respondent No.3 as follows:-
"The company was not in operation or carrying on business at the time of the striking off its name by ROC on 08.08.2018 a As per the Balance Sheets of the company as at 31.03.2018 and 31.03.2019 produced by the appellant in his appeal (Please refer to page nos. 112-118 and 122-128 of the appeal), the following figures show that the company was not and could not be in operation or carrying on business at the relevant time:-
Particulars As at As at
31.03.2018 31.03.2019
(In Rs.) (In Rs)
Fixed Assets 0.00 0.00
12
Inventories 0.00 0.00
Trade 0.00 0.00
Receivables
Long Term 0.00 0.00
Borrowings
Trade 0.00 0.00
Payables
Bank Balance 497.64
In a similar situation, this Hon'ble Appellate Tribunal in the matter of Alliance Commodities Private Limited Vs Office of Registrar of Companies [2021] 225 CC 435 (NCLAT-Del) have held that the finding of NCLT that the appellant-company was not doing the intended business cannot be termed erroneous.
b.No 'vouchers' or 'bills' have been placed on record to show that there were any dealings of the company during the relevant period.
C. No 'bank statement' for the financial years 2015-16, 2016-17, 2017-18 and 2018-19 have been placed on record. The Bank Statement for the period 12.03.2019 to 26.02.2020 which has been placed on record Please refer to page nos. 153 -157 of the appeal) is not relevant because it pertains to the period subsequent to the date of striking off the name of the company.
d. No 'IT Returns' have been filed by the company for the Assessment Years 2014-15, 2016-17, 2017-18 and 2018-19 (Please refer to reply of Income Tax Department dated 15.09.2020 at page no. 177 of the appeal). The IT Return for the Assessment Year 2019-20 filed by the appellant unilaterally on 06.12.2019 is not relevant because it has been filed after the date of striking off the name of the company. Moreover, as per the IT return for the assessment year 2019-20, gross total income of the company is only Rs.2906/- (Please refer to page no. 159-160 of the appeal).
e. No 'GST No.' was obtained by the company though Good & Service Tax Act (GST) was implemented w.e.f. 1st July, 2017. This shows that the company was not in operation or carrying on business at the relevant time.
f. Employment Agreements executed on 09.11.2019 with Mr. Rahul Kumar, Mr. Saleeq Mohammed are irrelevant because these pertain to the date after striking off the name of the company (Please refer to page nos. 139-145 to 146-152 of the appeal).
Reliance is placed on the judgment of this Hon'ble Appellate Tribunal rendered in Aman Kumar Jain and Another Vs. Registrar 13 of Companies [20191 214 CC 328 (NCLAT-Del) in which it was held the document pertaining to the period after the date of striking off the name of company is not relevant.
2.False and fabricated Balance Sheets for the Financial Years 2015-16. 2016-17, 2017-18 and 2018-19 have been placed on record.
a) The registered office of the company was at Ambala Cantt (Haryana). Preparation of balance sheets at Jalandhar (Punjab) was not possible and the same have been fabricated at Jalandhar.
b) The Balance Sheets have not been considered and approved at any meeting of the Board of Directors as mandated under Section 134 of the Companies Act, 2013.
c) The Balance Sheets have been singly signed by the appellant only and not by two directors of the company as required under Section 134 of the Companies Act 2013 (Please refer to Page Nos. 103-108, 112- 118, 122-128, 132-138). Hence the signing of Balance Sheets by the auditor M/s Dheeraj Jidani & Co., Chartered Accountants and submission of Auditor's Report thereupon is in violation of Section 134 of the Companies Act, 2013. Thus the Balance Sheets attached with the present appeal cannot be treated as the Balance Sheets of the Company.
d) Directors' Reports are not attached to the Balance Sheets which is a necessary legal document in terms of Section 134 of the Companies Act, 2013.
e) The Balance Sheets have not been considered and approved at any Annual General Meeting of the company.
f)The fact is that the appellant has got these Balance Sheets prepared unilaterally for the purpose of filing the appeal under section 252(3) of the Companies Act, 2013. The Balance Sheets have been falsely prepared by putting back dates in them.
g) It is significant to mention that the appellant and respondent No.3 were only two directors of the company. The appellant was in whole-time employment with a US based Company namely Lunarpages Internet Solutions and respondent no.3 was not able to attend the business of the company because he was disturbed in his personal matrimonial disputes. So no business was being carried out in the company.
3.Otherwise also it is not 'just' to restore the name of the company 14 The appellant and respondent no. 3 are the only two shareholders and directors of the company. The appellant and respondent no. 3 hold 50%:50% shares in the company. The present appeal has been filed without the consent of respondent no. 3. There are serious disputes and differences between the appellant and respondent No. 3 and there is complete stalemate in the company due to which Board Meetings and Shareholders Meetings could not be held since 2016. In such a situation no useful purpose will be served by restoring the name of the company. Therefore it will not be otherwise just to restore the name of the company.
In a recent case of Tata Consultancy Services Ltd. Vs. Cyrus Investments P. Ltd. and Others [20211 227 Comp Cas 1 (SC), the Hon'ble Supreme Court has cited the following judgment in Para 16.49 which is reproduced herebelow:-
"16.49 In Lau v. Chu, the House of Lords indicated, "that a just and equitable winding up may be ordered where the company's members have fallen out in two related but distinct situations, which may or may not overlap". The first of these is labelled as, "functional dead lock", where the inability of members to co-operate in the management of the company's affairs leads to an inability of the company to function at Board or shareholder"
4.ROC has rightly struck off the name of the company.
The appellant has himself stated in the appeal that the financial statements and annual returns for the Financial Years 2015-16, 2016-17, 2017-18 and 2018-19 have not been filed with the Registrar of Companies. The Registrar of Companies issued notices in Form No. STK-1 on 22.05.2016, Form STK-5 on 18.06.2018 and Form STK-7 on 08.08.2018 as per the provisions of Section 248 of the Companies Act, 2013. Text of Para 7 of reply of ROC before Ld. NCLT, Chandigarh (Please refer to Para 7 at page no. 171 of the appeal) is reproduced here below:-
7. That this office issued the notice in the form of STK-1 dated 22.05.2018, Intimating the company and the directors of the company at their registered office about the aforesaid defaults, providing them a fair opportunity to respond. Subsequently, this office also issued public notice for the same in the form of STK- 5 dated 18.06.2018.
Thereafter. Companies (Removal of Names of Companies from the Register of Companies), the name of the company was struck off as per the provision of Section 248 (1) (c) of the Companies Act, 2013 read with Rule 9 of the Rules, 2016 vide Notice in the form of STK-7 dated 08.08.2018."
15The appellant is himself relying upon this reply of ROC. Hence, it does not lie in the mouth of the appellant to say that the Registrar of the Companies failed to issue prior notices under the Companies (Removal of names from the Register of Companies) Rules, 2016 to the appellant before removing the name of the company. Moreover, the appeal has been filed under Section 252(3) and not under Section 252(1) which shows that the appellant is not aggrieved by the order of the Registrar of Companies under Section 248 of the Companies Act, 2013.
5. The company never applied for 'Dormant' status The plea of the appellant that the Registrar of Companies was required to first make the company dormant in terms of Section 455(4) of the Companies Act, 2013 before striking off the name of the Company is wholly fallacious and untenable in law. The Registrar on its own cannot grant the status of dormant company. It is the conscious decision of a company itself. The company has to make an application under Rule 3 of the Companies (Miscellaneous) Rules, 2014 in prescribed Form MSC-1 along with prescribed fees after passing a special resolution to this effect in the general meeting of the company. The dormant status is granted only if the company fulfils the eligibility conditions prescribed under the proviso to Rule 3 of the Companies (Miscellaneous) Rules, 2014. The Registrar of Companies in para 5 of his reply before Ld. NCLT, Chandigarh (page 170 of the appeal) has stated that "Moreover, no subsequent documents had been filed by the company with this office to obtain the status of a "Dormant Company" under section 455 of the Companies Act, 2013."
6.No Objection' of ROC or Income Tax Department is irrelevant The appellant's plea that the ROC and Income Tax Department have not raised any objection to the restoration of name of the company is unsustainable. In the matter of Nu Age Resources & Placements (P) Ltd. Vs. Registrar of Companies, [2019] 213 CC 313 (NCLAT-Dell this Hon'ble Appellate Tribunal has held that "When the National Company Law Tribunal is moved, objection or no objection of the Registrar of Companies is not material. It is necessary for party to satisfy provisions of section 252."
7.Basant Kumar Berlia & Ors. Vs. Registrar of Companies & Ors. case is not applicable in the present case.
The judgment of this Hon'ble Tribunal rendered the matter of Basant Kumar Berlia & Ors. Vs. Registrar of Companies & Ors. in Company Appeal (AT) No. 171 of 2018, which has been relied upon by the appellant in his appeal, is not applicable in the 16 present case because the facts of that case were entirely different and distinct. In that case the company and both of its shareholders/ directors had jointly filed appeal before the Ld. NCLT, Kolkata Bench. The Company had filed all its income tax returns for the Assessment Years 2014-15, 2015-16 and 2016-17 on 30.03.2016, 31.03.2017 and 16.08.2017 as per the Income Tax Return Acknowledgements. Moreover, the Company had fixed asset (land) of Rs.14,79,660.00 as per the balance sheet as on 31.03.2014 and 31.03.2013. Further long term loans & advances to the tune of Rs.10,83,11,111.00 were there in the balance sheet of 2013 and 2014. But in the present case, the fixed assets, inventories, trade payables, trade receivables, bank balances, etc. are 'nil' and the income tax returns have not been filed.
8.Unbearable burden of fee, additional fee and penalty for filing of pending financial statements and annual returns with ROC.
Without conceding that the appeal is liable to be dismissed, it is submitted that if the name of the company is restored, the Company will have to file all its pending Balance Sheets (Form AOC-4) and Annual Returns (Form MGT-7) for the FY 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 with the Registrar of Companies. For filing these documents with ROC, the company will have to pay fee and additional fee which may exceed Rs.10,00,000/- in aggregate as per the rates prescribed under Rule 12 of the Companies (Registration Offices and Fees) Rules, 2014 read with Section 403 of the Companies Act, 2013. Moreover, in case penalty is also imposed by ROC on late filing of these documents, then the total amount payable to ROC will run into millions of rupees. The Company is closely held private company with only two share holders and such a huge financial burden will be impossible to bear. In the matter of Registrar of Companies Vs Goouksheer Farm Fresh Private Limited and Another [2020] 223 CC 583 (NCLAT-Del), this Hon'ble Appellate Tribunal have held that "One cannot brush aside a primordial fact that there is no provision under the Companies Act, 2013 which permits the appellant to file the documents sought to be registered/filed under the Companies Act without payment of the requisite filing fee and/or payment of additional fee. To put it cock surely, there is no express/enabling for walver of fees/penalty under the Companies Act."
9. Plea of grabing of business by Respondent No.3 is false and fabricated The appellant plea that respondent No.3 is grabing the business of the firm to his firm namely ProHosterz IT Solutions is totally false and fabricated. No such pleading was made in appeal filed before Ld. NCLT Chandigarh. Further, no such pleading was 17 taken in the appeal filed before this Hon'ble Tribunal. Such pleading taken for the first time in written submissions is not permissible at this stage. Moreover such a plea is not relevant for restoration of name of the company. It is submitted that respondent No.3 is not doing any business in the name of ProHosterz IT Solutions.
10. The Appellant has himself started business in the name of M/s Opax Web IT The appellant is playing fraud with this Hon'ble Tribunal by concealing the fact that he has himself started the same IT business in the name of his firm "M/s Opax Web IT" which is similar to the name of the struck off company "M/s Opax Web Private Limited". He has opened current account in the name of his firm M/s Opax Web IT with Axis Bank at Jalandhar under account No.919020073374966.
In view of the submissions made above, the appeal reserves to be dismissed in limine and the appellant deserves to be penalised and punished for making false statements and placing on record false documents and balance sheets in evidence and thus misleading this Hon'ble Tribunal."
11. By way of referring to above facts disclosed in the written submission it was emphatically argued that the company in question was not in operation since there was dispute in between two directors i.e. appellant and Respondent No.3. He submits that since the company was not operating the Registrar of Companies following the provisions contained in Section 248 of the Companies Act legally struck of the company and same has also been approved by the NCLT by its judgement dated 27.7.2021.
12. Besides hearing learned counsel for the parties we have perused the material available on record. So far as striking off 18 name of the company in question under the provisions of Section 248 of the Companies Act is concerned the appellant has not raised any dispute that procedure under the said provisions was not followed. In the written submission of the ROC also detail has been mentioned regarding following the procedure prescribed under Section 248 of the Companies Act which has not been disputed by the appellant otherwise the appellant would have preferred the appeal under Section 252(1) of the Companies Act.
The appellant has filed application/appeal under Section 252(3) of the Companies Act which empowers the NCLT to pass an order of restoration of a striking off company if the NCLT is satisfied on the basis of plausible material that struck off company was carrying on business or in operation or even otherwise it was just that the company may be restored. Considering the fact that the company was having two directors with 50% shareholding which has not been disputed and one of the director who is Respondent No.3 has come forward with a stand that the company in question was not either doing business or operating, in such situation there is no reason in passing an order for restoring the appellant company.
Another reason for not interfering with the impugned order is that out of two directors one director has taken a stand that the 19 company is completely inoperative doing no business whereas the appellant who is also a director is taking the plea on the strength of balance sheet prepared by the CA that too without approval of the Board of Directors that company was in operation. If for the time being any direction is issued for restoration, certainly it will amount to generating further dispute/litigation.
13. On the basis of material available on record we are satisfied that the appellant was not in a position to satisfy the NCLT that the company in question was doing business or was operational during the period for which the name of the company was struck off. We do not find any ground to interfere with the impugned order.
14. The appeal stands dismissed.
(Justice Rakesh Kumar) Member (Judicial) (Dr. Alok Srivastava) Member (Technical) bm