Jatinder Singh vs Registrar Of Companies Nct Delhi & ...

[Arising out of order dated 11.12.2020 passed by the National Company Law Tribunal, New Delhi, Court-III in Appeal No. 305/252/ND/2020.]

IN THE MATTER OF: a) Mr. Jatinder Singh, S/o Shri Sucha Singh Address: Malikpur, Rupnagar, Punjab 140001 Ex-Director, SB Infosoft Ludhiana Private Limited (Struck Off) ...... Appellant No. 1. b) Mr. Bishan Das, S/o Shankar Das Address: Chak Karman, Rupnagar, Punjab 140001 Ex-Director, SB Infosoft Ludhiana Private Limited (Struck Off) ...... Appellant No. 2. Versus

a) Registrar of Companies, NCT of Delhi & Haryana Address: 61, Nehru Place, 4th Floor, IFCI Tower, New Delhi-110019. ....... Respondent No. 1. b) Department of Income Tax, C/o Principal Chief Commissioner of Income Tax Address: DCIT (High Court Cell) Lawyer's Chamber, Block No. 1, Room No. 428 & 429, Delhi High Court, New Delhi. ....... Respondent No. 2.

Present: For Appellant: Mr. Gursat Singh and Mr. Ayush nanda, Advocates. For Respondent:- Mr. Zoheb Hossain, Sr. Standing Counsel. 2

Mr. Parth Semwal and Mr. Vipul Agrawal, Jr. Standing Counsel.

JUDGMENT

(15th November, 2022)

Justice Anant Bijay Singh;

The present Appeal under Section 421 of the Companies Act, 2013 has

been preferred by the Appellants against the final order dated 11.12.2020 passed

by the National Company Law Tribunal (New Delhi Court-III) in Appeal No.

305/252/ND/2020 whereby the Appellants filed the application under Section

252(1) of the Companies Act, 2013, seeking restoration of name of the Company

in the Register of the Companies and after hearing the parties the Tribunal

passed the following orders:

"....

In the facts and circumstances recorded herein, there does not appear any grounds for ordering the restoration of the name of the company in the Register of the Companies. The Company appears to be a shell Company. The application is devoid of merits and filed to misuse the judicial process.

Consequently, the Application is rejected."

2. The facts giving rise to this Appeal are as follows:

i) The Appellants are the Ex-Director of M/s SB Infosoft Ludhiana Private

Limited (Struck Off) incorporated on 01.03.2006 under the Companies Act, 1956

with registered Office at New Delhi. Since incorporation the Company had been

a professionally managed company and was regular with filing its financial

Company Appeal (AT) No. 33 of 2021 3

statements. The Company has been running and managing the business of

"distribution of hardware & software products and constructing structure of

units in Technology Park" since 2006 and owns the building and land

admeasuring 4598 sq. Yard (within the limit of municipal corporation Ludhiana)

at Samrala Chowk to Jalandhar Byepass Ludhiana, Delhi, with value of around

Rs. 5,88,30,064/-.

ii) Further case is that the Company continued to run its business of

distribution and software service since 2006 and continued to do however, it was

not doing the sale and purchase of goods and distribution but the it was into the

operation of marking regular expenditure of maintenance of immovable property

such as payment of property tax and other miscellaneous expenses even after

passing of struck off order against the Company, though even thereafter the

Company continued to remain in operation and continues till date. The Company

has paid Property Tax to municipal corporation, Ludhiana for the period of 2013-

14 to 2019-20.

iii) Further case is that while the Company did not file its financial statements

and annual returns since 2012 on account of acute staff shortage and financial

crisis and was done inadvertently and that there is no such willful or mala-fide

motive behind non filing of e-forms with the Registrar of Companies, NCT of Delhi

and Haryana. The default committed was purely unintentional nonetheless, the

Company was kept active and operational and followed all essential corporate

procedures. It took various actions to discharge its duties and obligations as a

legal entity and to defend its rights. The Company conducted its Annual General

Company Appeal (AT) No. 33 of 2021 4

Meeting annually and prepared audited financial statements from 2016-17 to

2018-19 and also filed its Income Tax Returns from AY 2006-07 to 2012-13 and

thereafter from AY 2013-14 to till date.

iv) Further case is that without knowledge to the Company and without

serving it any notice whatsoever, the Respondent No. 1 published the Order no.

ROC-DLE/248(5)/STK-7/2879 dated 30.06.2017 whereby it struck off the name

of the Company from the register of companies. Thereafter, the Appellants filed

the appeal vide CA No. 305/252(ND)/2020 under Section 252(1) of the

Companies Act, 2013 on 18.07.2020 before the NCLT, New Delhi, seeking

restoration of the name of the Company in the register of companies and after

hearing the parties the Tribunal passed the impugned order. Hence this Appeal.

Submissions on behalf of the Appellant

3. The Ld. Counsel for the Appellants during the course of argument and in

his memo of Appeal along with written submissions submitted that the Appellant

Company has been carrying on business of distribution of hardware and

software and constructing structure of units since 2006. Furthermore, the

Appellant Company also owns the building and land was brought by way of sale

deed dated 04.04.2008 and at present the company continued to run its

business of distribution and software service since 2006, but for a period of time,

it was not doing the sale and purchase of goods and distribution, despite that

the Appellant Company was making regular expenditure for maintenance of

immovable property such as payment of property tax and other miscellaneous

expenses.

Company Appeal (AT) No. 33 of 2021 5

4. It is further submitted that the Company conducted its Annual General

Meeting annually and prepared audited financial statements from 2016-17 to

2018-19 and also filed its Income Tax Returns from AY 2006-07 to 2012-13 and

thereafter from AY 2013-14 to till date. It is evident that the Appellant Company

even after 2012 had been in operation and continued to be in operation.

However, without knowledge to the Company and without serving it any notice

whatsoever, the Respondent No. 1 published the Order no. ROC-

DLE/248(5)/STK-7/2879 dated 30.06.2017 whereby it struck off the name of

the Company from the register of companies.

5. It is further submitted that the Respondent No. 1 and Respondent No. 2

in ignoring and wrongly assessing the audited balance sheet of the Appellant

Company. The Respondent No. 1 has failed to acknowledge the presence of land

owned by the Appellant Company even when they were present before the NCLT

on 11.12.2020 when the order was pronounced. Ancillary to that, the

Respondent No. 1 has mentioned the details of the Judgment of the NCLT, but

have blatantly asserted in their reply that there exists no land in the Appellant

Company. At this juncture, the Appellant Company has been maintaining its

audited balance sheet for the FY 2012-13 to 2020-21, wherein the value of the

land an amount of Rs. 5,88,30,064/- has been mentioned and the same has

been reflected in all the audited balance sheet.

6. It is further submitted that the Respondent No. 2 has stated that the

Appellant Company has not filed any ITR after 2012-2013, thereby implying that

the Appellant Company has not been in operation. The Respondent No. 2 has

Company Appeal (AT) No. 33 of 2021 6

failed to acknowledge that the Appellant Company has preparing its financial

statements, making payment to its auditors, filing property tax, conducting its

annual general meetings and has been pursuing its claim in various legal

proceedings, which shows that the Respondent No. 2 has failed to pay heed to

the assertions of the Appellant Company.

7. The Ld. Counsel for the Appellants relying on following Judgments and

submitted that in view of the aforesaid submissions the impugned order is fit to

be set aside and the Appeal be allowed.

i) Khetan Granite Pvt. Ltd. Vs. Office of Registrar of Companies., [Company

Appeal (AT) No. 290 of 2019].

ii) Felpact Pvt. Ltd. and Ors. Vs. ROC and Ors., (Company Petition No. 24 of

2012).

iii) Purushottamdass and Anr. (Bulakidas Mohta Co. P. Ltd.) Vs. Registrar of

Companies, Maharashtra & Ors. (1986) 60 Company Case 154 (Bom).

iv) Bandhu Systematix Private Limited Vs. ROC., Company Petition 787 of

2015.

Submissions on behalf of the Respondents

8. The Ld. Counsel for the Respondent No. 1 / RoC during the course of

argument and in his reply affidavit submitted that as per available records on

MCA 21 portal, the last Directors of the Appellant Company namely Mr. Jatinder

Singh and Mr. Bishan Das were shown. The Appellant Company has filed its

Financial Statements till financial year 31.03.2012, due to which the Respondent

had reasonable cause to believe that the Appellant Company was not in

Company Appeal (AT) No. 33 of 2021 7

operation and in term of provision of Section 248(1) Notice was sent to the

Appellant company and also to its directors by invoking the provisions of Section

20 of the Companies Act, 2013. The Appellant company has been issued STK-1

in March, 2017. Further, in terms of Section 248(4) of the Companies Act, 2013

public notices in form STK-5 were issued to the Appellant company by making

publication in official gazette on 28.04.2017 and these notices have also been

places on the website of Ministry of Corporate Affairs.

9. It is further submitted that the public notices in form STK-5A were

published including name of the Appellant company in newspapers, namely

Hindustan Times (English) and Hindustan (Hindi) on 28.04.2017. In pursuant

to sub-Section (5) of Section 248 of the Companies Act, 2013 and Rule 9 of the

Companies (Removal of Names of Companies from the Register of Companies)

Rules, 2016, 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 08.07.2017.

10. It is further submitted that the records of the answering Respondent,

neither the Appellant Company was carrying out any operation for a period of 2

immediately preceding financial years nor have any immovable property in its

name, therefore, the company was unable to produce before the Tribunal any

just and equitable ground for revival. Based on these submissions, the NCLT has

rightly passed the impugned order, therefore, there is no merit in the present

Appeal, the Appeal is fit to be dismissed.

Company Appeal (AT) No. 33 of 2021 8

11. The Ld. Counsel for the Respondent No. 2 / Income Tax Department

during the course of argument and in his reply affidavit submitted that the

information pertaining to the struck off Company i.e. SB Infosoft Ludhiana

Private Limited is sought from my office in order to assist the court in deciding

the present Appeal. As per Income Tax Business Appeal (ITBA), the details of

Income Tax Returns filed by the Appellant is hereunder:

Sl. No. A.Y. Income declared as per ITR

1 2007-08 NIL

2 2008-09 -17528

3 2009-10 -146368

4 2010-11 -189127

5 2011-12 -45224

6 2012-13 -85565

The Appellant Company has not filed Income Tax Returns for Assessment

Year 2013-14 and any Assessment Year thereafter. There are no proceedings and

outstanding demands pending against the Appellant Company.

12. After hearing the parties and going through the pleadings made on behalf

of the parties, the Appellants have neither fact in issue nor question of Law and

any ground raised with the legal provisions does not assail the finding of the

Tribunal wherein the Tribunal held that the Appellant Company appears to be a

shell Company. Therefore, the Impugned Order dated 11.12.2020 passed by the

National Company Law Tribunal (New Delhi Court-III) in Appeal No.

Company Appeal (AT) No. 33 of 2021 9

305/252/ND/2020 is hereby affirmed. The instant Appeal is accordingly

dismissed devoid of merit.

13. 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 Court-III), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 15th November, 2022 R. Nath.

Company Appeal (AT) No. 33 of 2021