Pankaj Kumar Mishra vs Roc Mumbai & Anr

In the matter of: Mr. Pankaj Kumar Mishra Through his Power of Attorney Holder, Mr. Utkarsh Mishra .......Appellant Versus

1. Registrar of Companies, Mumbai Everest Bldg., 100 Marine Drive, Mumbai- 400002. 2. The Principal Commissioner of Income Tax-15, Aayakar Bhavan, M.K. Road, Mumbai- 400020 .......Respondents Present: For Appellant:- Mr. Saurabh Agarwal, Mr. Komal Mundhra and Mr. Shantanu Singh, Advocates. For Respondent :- None

JUDGEMENT

Justice Jarat Kumar Jain.J

The Appeal has been filed under Section 421 of the Companies Act, (In

Brief 'The Act') against the Order dated 11.11.2019 passed by the National

Company Law Tribunal, Mumbai Bench, Mumbai (In Brief 'Tribunal') in C.P. No.

364/252/(MB)/2019, whereby allowed the Appeal filed by the Principal

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Commissioner of Income Tax-15 Mumbai (Respondent No. 2 herein) and thereby

restored the name of Viking Ship Managers Pvt. Ltd. in the Register of

Companies.

2. Brief facts of this case are that the name of the Viking Ship Mangers Pvt.

Ltd. Company was struck off by ROC Mumbai from the Register of Companies.

The Principal Commissioner of Income Tax-15, Mumbai (Respondent No. 2

herein) challenged the order of ROC before the Tribunal under Section 252 of the

Act. It is stated before the Tribunal that the Company has certain Financial

transactions that have been entered into by the Company for the Assessment

year 2011-12 and information regarding this were received from the office of ITO

Income Tax Officer 15 (3) (2) Mumbai. However, no return of income has been

filed. Therefore, notice under Section 148 of the IT Act, 1961 has been issued for

Assessment year 2011-12 proposing to assess/reassess the income. The

Company has been struck off from the Register of Companies. Therefore, it is

difficult to assess the defunct Company and it will cause huge loss of revenue of

the Government of India. Hence, it was prayed that the name of the Company be

restore in the Register of Companies.

3. The Authorized representative for the Registrar of Companies submitted

before the Tribunal that they do not have any objection to restore the name of

the Company in the Register of Companies. Ld. Tribunal by the Impugned Order

allowed the Appeal and directed to restore the name of the Company in the

Company Appeal (AT) No. 121 of 2020 3

Register of Companies. Before passing of Impugned Order no notice has been

served on the Company, however, the Company was arrayed as the Respondent.

4. Being Aggrieved with the order passed by the Tribunal, the Appellant Ex-

Director and Majority Shareholder and Power of Attorney Holder of the Company

has filed this Appeal.

5. Notice of this Appeal has been duly served on the Respondents i.e.

Registrar of Companies and the Principal Commissioner of Income Tax-15,

Mumbai through Speed Post, however, nobody appeared on behalf of the

Respondents on date of hearing i.e. 04.09.2020 and 22.09.2020. Therefore, we

proceed ex-parte against the Respondents.

6. Learned Counsel for the Appellant submitted that Section 252 (1) of the

Act, provides that before passing any order under this Section, the Tribunal shall

give a reasonable opportunity of making representations and of being heard to

the Registrar, the Company and all the persons concerned. Rule, 37 of the

National Company Law Appellate Tribunal also provides that the Tribunal shall

issue notice to the Respondent to show cause against the Application or Petition

on date of hearing to be specified in the notice. Admittedly, before the Tribunal

Company was arrayed as Respondent, However, no notice has been served on

the Respondent. Thus, the Impugned order is bad in law and deserves to be set

aside on this ground alone.

7. Learned Counsel for the Appellant further submits that the Assessment

for the year 2011-12 has already been completed. Therefore, there is no tenable

Company Appeal (AT) No. 121 of 2020 4

reasons to revive the strike of Company. It is further submitted that even after

striking off the name from the Register of Companies under Section 248 (5) of

the Act. As per Section 248 (6) the Assets of the Company shall be made available

for the payment or discharge of all its liabilities and obligations, even after the

date of order removing the name of the Company from the Register of Companies.

8. Learned Counsel for the Appellant also submits that there is no business

activity carried out by the Company as on the date and also in the year 2018.

There is no employee available to look out for the affairs of the Company and

such restoration would lead to an unreasonable amount of burden and penalties

on the Appellant as Company is no position to comply with any of the provisions

under the Act. Thus, the Impugned Order deserves to be set aside.

9. After hearing the Learned Counsel for the parties, we have perused the

record.

10. In the Impugned Order it is not mentioned that before passing the

Impugned Order, Learned Tribunal has served the notice on the Company or its

Directors. Learned Tribunal has passed the Impugned order under Section 252

of the Act, which reads as under:-

"252. Appeal to Tribunal- Any person aggrieved by an order of the Registrar, notifying a company as dissolved under Section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that he date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the

Company Appeal (AT) No. 121 of 2020 5

Registrar, if may order restoration of the name of the Company in the register of companies.

Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned:

Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under Section 248, file an application before the Tribunal seeking restoration of name of such company."

11. Rule, 37 of the National Company Law Tribunal Rules, 2016 also provides

that the Tribunal shall issue notice to the Respondent to show cause against the

Application or Petition on the date of hearing to be specified in the notice. Such

notice shall be accompanied by a copy of the Application with supporting

documents. The Tribunal has not issued such notice to the Appellant.

12. In such a situation, we are of the view that without giving any opportunity

of hearing Learned Tribunal has passed the Impugned Order. The order is not

sustainable in law. Thus, the Impugned order hereby set aside and the matter is

remitted back to the Tribunal with the direction that after hearing the parties

decided the Appeal under Section 252 of the Act, as per law without influence

by its earlier Order.

13. The Appellant is directed to remain present before the National Company

Law Tribunal, Mumbai Bench, Mumbai on 2nd November, 2020.

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The Registrar is directed to transmit the copy of the order to the concerned

Tribunal forthwith.

(Justice Jarat Kumar Jain) Member (Judicial)

(Balvinder Singh) Member (Technical)

New Delhi 30th September, 2020.

SC

Company Appeal (AT) No. 121 of 2020