Ncsc Healthcare Private Limited vs The Registrar Of Companies

[Arising out of order dated 14.10.2021 passed by the National Company Law Tribunal (New Delhi Bench-V) in Appeal 76/252/ND/2021]

IN THE MATTER OF: 1. NCSC Healthcare Private Limited Represented by Mr. Sumit Shriwastav A company incorporated under the provisions of the Companies Act, 1956 having its registered office at G-19 S/F, Private Room No. 9 Vijay Chokh, Near Tiwari Complex, Laxmi Nagar East Delhi, New Delhi, Delhi-110092 Email id: anayak@gmail.com ....... Appellant No. 1/ Appellant Company 2. Sumit Shriwastav Director and Shareholder A-17, TF, Block-A, Shyam Colony, Near Shiv Mandir Phase-2, Budh Vihar, Sultanpuri, C-Block, New Delhi, Delhi- 110086. Email id: anayak@gmail.com ....... Appellant No. 2. 3. Amarjit Nayak Director and Shareholder A-17, TF, Block-A, Shyam Colony, Near Shiv Mandir Phase-2, Budh Vihar, 2

Sultan Puri, C-Block, New Delhi, Delhi- 110086. Email id: anayak@gmail.com ........ Appellant No. 3. Versus 1. The Registrar of Companies NCT of Delhi and Haryana, 4th Floor, IFCI Towers, Nehru Place, New Delhi-110019. Email id: roc.delhi@mca.gov.in ....... Respondent No. 1. 2. The Income Tax Department Office of the Deputy Commissioner of Income Tax, High Court Cell, Room No. 428-429, Lawyer's Chamber, Delhi High Court. Email Id.: delhi.dcit.judicial.hc@incometax.gov.in ....... Respondent No. 2.

Present: For Appellant: CS Santosh Pandey.

For Respondent:- Mr. B.K. Yadav, Advocate on behalf of Mr. Abhishek Maratha, Sr. Standing Counsel. Mr. Pratyaksh Gupta, Jr. Standing Counsel, for R-2.

JUDGMENT

(06th January, 2023)

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

14.10.2021 passed by the National Company Law Tribunal (New Delhi Bench-V)

in Appeal 76/252/ND/2021whereby and whereunder appeal filed by the

Company Appeal (AT) No. 07 of 2022 3

Appellant Company for restoration of the name of the 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 No. 1, namely NCSC Healthcare Private Limited (CIN:

U85100DL2012PTC229593) is a Company incorporated on 03.01.2012 having

its registered office at Laxmi Nagar New Delhi-110092 as a private company

limited by shares and the business of the appellant company is to carry on the

business or to establish, promote, subsidies, encourage, provide, maintain,

organize, undertake, manage, build, construct, equip, develop, recondition,

operate, conduct and consultants to run in India or abroad Hospitals Nursing

homes, Health centres, fitness centres, clinics, medical pharmacy, social welfare

and industry other establishment for the health care, body care and to

manufacture, sale of all types of drugs, medicines, natural & artificial human

body parts and allied activities.

ii) The Appellant Company has not filed its Annual Returns and Annual

Financial Statements since its inception due to lack of professional advice. Owing

to non-filing of Annual Returns and Annual Financial Statements, the Registrar

of Companies had reason to believe that the Appellant Company has either- a)

Failed to commence its business within one year of its incorporation, or b) Is not

carrying on any business or operation for a period of two immediately preceding

financial year and has not made any application within such period for obtaining

the status of a dormant Company under Section 455. Consequently, its name

Company Appeal (AT) No. 07 of 2022 4

was struck off by the Respondent No. 1 from the register of companies under

Section 248 of the Companies Act, 2013 vide Notification dated 07.06.2017.

iii) Further case is that the Appellant company has also made investment

worth INR 18,57,00,000/- in the shares of the other company(ies) and the same

can be traced from the audited financials for the financial year ending 31st

March, 2017. The Appellant company has also made allotment of 4,90,000 equity

shares of INR 10/- each at a premium of INR 990/- each in the year 2012, but

the same was not filed and updated with the Respondent No. 1 due to lack of

professional guidance.

iv) Being aggrieved the Appellant company filed Appeal against the

Notification dated 07.06.2017 before the Tribunal. The Respondent No. 1 in its

reply dated 16.04.2021 to the Appeal stated that it has issued notice in the form

STK-1 in the month of March, 2017 intimating the Company and the Director of

the Company about non-filing of the financial statements and Annual Returns

and its basis to form opinion that the company is not carrying on any operation

in the last two financial years. Further, public notice in the form of STK-5 dated

24.08.2017 was also issued and published in Hindustan Times newspaper on

24.04.2017 by the Respondent No. 1 and then after, the name of the company

was struck off as per the provisions of Section 248(1)(c) of the Companies Act,

2013 vide notice in the form of STK-5 dated 07.06.2017. After hearing the

parties, the Tribunal dismissed the aforesaid Appeal vide order dated 14.10.2021

which led to filing of this Appeal.

Company Appeal (AT) No. 07 of 2022 5

3. CS Santosh Pandey appears on behalf of the Appellants, during course of

argument and in his memo of Appeal submitted that the Tribunal while passing

the impugned order has erred in law and fact by not considering that they have

not received any Notice-I under Section 248(1) of the Act, nor public notice in

Form No. STK-5 before the aforesaid action was taken by the Registrar of

Companies. Also, the Appellant company has been in continuous business

operation and is regular in filing its Income Tax Returns along with the copy of

acknowledgement till the date of assessment year 2019-2020 and is regularly

conducting its meetings and has been regular in preparing its annual return and

balance sheets and also has held and convened its Annual General Meeting

regularly and has certain assets. Further, the Tribunal did not consider the facts

correctly and have not paid heed to the facts that in the financial year 2014-15,

the Company has generated revenue from operation amounting to INR

3,04,000/- and also holds an investment of INR 18,57,00,000/- in other entities

shares.

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, details of signatories

associated with the Appellant Company were found namely i) Amarjit Nayak and

ii) Sumit Shriwastav. The Appellant company has not filed Annual Return and

Balance sheet since its date of incorporation. 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, 1956. Hence,

the ROC had reasonable cause to believe that the company was not in operation

Company Appeal (AT) No. 07 of 2022 6

and therefore, the name of company was considered for striking off from the

Register of Companies. Further, it is stated that neither the Appellant company

was carrying out any operation for a period of 2 immediately preceding financial

years, nor the company was able to produce any supporting 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

appeared and during the course of argument submitted that as per record, no

demand is pending against the Appellant's Company and no such income tax

proceedings are pending as on date in Ward, therefore, the Income Tax

Department has no objection with regard to restoration of "NCSC Healthcare

Private Limited" 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 Appellants have placed the following

document/evidence before the NCLT:

i. Copy of Financial Statements, Auditor Reports, Notice of AGM and

Annual Return from Financial Year ended 31.03.2012 to Financial Year

ended 31.03.2019.

ii. Copy of the list of employees in whose account the salary is credited by

the Appellant No. 1 Company and copy of share certificates showing

the investments made by the Appellant No. 1 Company.

iii. Copy of Statement of Profit & Loss reflecting Revenue from Operations

is NIL for the Financial Years ending 31st March, 2019. Copy of the

Company Appeal (AT) No. 07 of 2022 7

Balance Sheet as on 31st March, 2019 reflecting current assets

including current investments, inventories, Cash and Cash Equivalents

and other current assets and liabilities including other current

liabilities.

In view of the above, 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 Bench-V) 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

14.10.2021 passed by the National Company Law Tribunal (New Delhi Bench-V)

in Appeal 76/252/ND/2021. The name of the Appellant Company be restored to

the Register of Companies subject to the following compliances.

i) Appellants shall pay costs of Rs. 1,00,000/- (Rupees one Lakh) to

the Registrar of Companies, NCT Delhi & Haryana within 08 (Eight)

weeks from passing of this Judgment.

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, within 08 (Eight) weeks

thereafter.

iii) Inspite of present orders, RoC will be free to take any other steps

punitive or otherwise under the Companies Act, 2013 for non-

Company Appeal (AT) No. 07 of 2022 8

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.

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 Bench-V), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 06th January, 2023 R. Nath.

Company Appeal (AT) No. 07 of 2022