Kamboj Electrotech Pvt Ltd vs Union Of India

[Arising out of order dated 31.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 341/252/(ND)/2020]

IN THE MATTER OF: Kamboj Electrotech Private Limited Through its Shareholder Sh. Bhajan Lal Kamboj, Having Registered Office at 53-A, Pocket-5 SFS, Mayur Vihar, Phase-III, New Delhi-110096 ....... Appellant. Versus 1. Registrar of Companies NCT of Delhi and Haryana 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019. ....... Respondent No. 1. 2. Union of India Through Ministry of Finance, Department of Income Tax Principle Chief Commissioner of Income Tax CR Building, IP Extension, New Delhi 110002. ....... Respondent No. 2.

Present: For Appellant: Mr. Saurabh Kalia, Mr. Piyush Singh, Mr. Akshay Srivastava, kashish Sareen, Priyal Sarawagi, Riddhi Jain, Advocates. For Respondent:- None. 2

JUDGMENT

(06th December, 2022)

Justice Anant Bijay Singh;

The present Appeal under Section 421(1) of the Companies Act, 2013, has

been filed by the Appellant through its Shareholder Sh. Bhajan Lal Kamboj,

being aggrieved and dissatisfied by the order dated 31.12.2020 passed by the

National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal

341/252/(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 was incorporated under the Companies Act, 1956

on 09.07.1990. The main objects of the Company are as follows:

• To manufacture, assemble, fabricate, buy, sell, export, import, hire, alter,

trade or otherwise deal in all types of Electric Control Panels, Distribution

Boards power supply and all types of Electric and Electronic Appliances

such as room coolers, desert coolers, coolers fans, cooler pumps,

washings machines, iron presses, steam presses, geysers, Mixers,

transformers, televisions radios, refrigerators, air conditioners, electric

motors, UPS system, voltage stabilizer, battery and battery charger and

allied goods.

Company Appeal (AT) No. 90 of 2021 3

• To carry on agency business or to act as agents for Indian and Foreign

principles to sell, purchase, import, export for Electric Control Panel,

Distribution Boards and Power Supply and Electricals and Electronic

appliances of all kinds.

• To render technical and engineering services and to act as consultants,

contractors, stockiest, suppliers, distributors, users, whole sellers and

retailers in all kinds of electric control panels, Distribution Boards and

Power supplies.

iii) The Authorized Share Capital of the Company is Rs. 5,00,000/- divided

into 5000/- Equity shares of Rs. 100/- each. The issued, subscribed and paid-

up share Capital of the Company as on date is Rs. 4,98,000/- divided into 4980

Equity shares of Rs. 100/-. The Appellant Company was incorporated with

Directors namely Mr. Madan Lal Kamboj, Mr. Bhajan Lal Kamboj and Mrs. Saroj

Rani Kamboj. The aforesaid directors are still continuing in the Appellant

Company. The accounts of the Company are prepared and audited every year by

the Auditor M/s Aggarwal Subhash Chand & Co., Chartered Accountants and

the Company is following Annual System of Accounting. The Balance Sheets of

the Company are prepared right from its incorporation. The Audited Balance

Sheet for the year ended 31.03.2016, 31.03.2017, 31.03.2018 & 31.03.2019 and

the Annual Returns of the Appellant Company have been filed regularly by the

part time junior accountant/part time accountant of the Appellant Company,

who seeks the help of Statutory Auditor of the appellant company for filing it

with the ROC.

Company Appeal (AT) No. 90 of 2021 4

iv) The Junior Accountant/ part Time Accountant of the Company left the job

during the month of January, 2016 and left Delhi permanently without informing

the Directors about the filing of balance sheet and annual returns. Due to the

absence of Accountant, the balance sheet and annual return for financial year

2015-16, 2016-17, 2017-18 and 2018-19 were not inadvertently filed with ROC.

Thereafter, on verification it is found that the Respondent No. 1 struck off the

Appellant Company's name from the Register of Companies through arbitrary

exercise of powers conferred under Section 248 of the Companies Act, 2013 on

the allegation that the Appellant Company has not been carrying on any

business or operation for a period of two immediately preceding financial years

vide Public Notice dated 08th August, 2018 (Impugned Notice) wherein the name

of Company is appearing at Serial no. 10474. 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 submitted that dissolution was given effect in pursuant to

Section 248(5) of the Companies Act, 2013 without complying with provision of

Sub-section (6) to the Section 248 of the Act, whereby in the said provision it is

mandatory for Respondent i.e. ROC to make sufficient provision for realization

of all the amount due to the Company and for the payment or discharge of its

liabilities and obligations by the Company within a reasonable time and after

Company Appeal (AT) No. 90 of 2021 5

obtaining necessary undertakings from the managing directors, directors or form

any other person in charge for the management, if necessary, before passing any

such order of dissolution, however, neither the company nor the directors of the

Appellant Company were in receipt of any prior information before publication

of such notice of dissolution of the Company in the official gazette and it was to

the utmost shock of the Company that Respondent No. 1 failed in its statutory

duty to make sufficient provision for realization of amount due to the Appellant

Company and payment or otherwise discharge of liabilities of the Appellant

Company. Further submitted that while passing the impugned order, the

Tribunal failed to consider the fact that the Appellant Company was regularly

preparing its financial statements and the balance sheets for the financial years

2015-16, 2016-17, 2017-18 & 2018-19 and also has filed ITR for the Assessment

Year 2019-20 & 2020-21. Further submits that the Appellant Company had been

carrying operations on the land (fixed asset) of the Company since incorporation

till the year 2016.

4. On the other hand, the Respondent No. 1 in his reply stated that the

Appellant Company has filed its financial statements till financial year

31.03.2015, due to which the Respondent 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 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

Company Appeal (AT) No. 90 of 2021 6

08.06.29018 was published on the website of Ministry of Corporate Affairs on

08.08.2018. Further, it is stated that the Respondent has not objection to the

grant of prayer of the Appellant subject to such order which this Tribunal may

deem fit and proper.

5. After hearing the parties, going through the pleadings made on behalf of

the parties and in view of the fact that the Audited Balance Sheet for the year

ended 31.03.2016, 31.03.2017, 31.03.2018 & 31.03.2019 and Income Tax

Return of the Appellant Company 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 NCLT, New Delhi as well

as RoC, NCT Delhi & Haryana is not sustainable in law.

6. In view of the aforenoted, we set aside the impugned order dated

31.12.2020 passed by the National Company Law Tribunal (New Delhi, Special

Bench, Court-II) in Appeal 341/252/(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. 50,000/- (Rupees Fifty Thousand)

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.

Company Appeal (AT) No. 90 of 2021 7

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. I.As, if any, stand

disposed of.

7. 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)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 06th December, 2022 R. Nath.

Company Appeal (AT) No. 90 of 2021