R.P. Casting Private Limited vs Registrar Of Companies, Delhi & Haryana

[Arising out of order dated 15.09.2020 passed by the National Company Law Tribunal (Court-V, New Delhi) in Appeal 771/252/ND/2019]

IN THE MATTER OF: R. P. Casting Private Limited CIN:U27101DL1991PTC043109 82/5, Circular Road, Shahdara, Delhi-110032 ....... Appellant. Versus 1. Registrar of Companies NCT of Delhi and Haryana 61, Nehru Place, New Delhi-110019. ....... Respondent No. 1. 2. Union of India Ministry of Finance, Department of Revenue, Through Department of Income Tax, C/o Principal Chief Commissioner of Income Tax, I.P. Estate, New Delhi-110001. ....... Respondent No. 2.

Present: For Appellant: Mr. Ashish Middha, Advocate.

For Respondent:- Mr. Kamal kant Jha, Sr. Panel Counsel for Govt. Of India for R-1.

Mr. Sanjay Kumar, Ms. Esha Kadian, Advocate for R- 2- Standing Counsel for Income Tax Department. 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 Appellant being aggrieved and dissatisfied by the order dated

15.09.2020 passed by the National Company Law Tribunal (Court-V, New Delhi)

in Appeal 771/252/ND/2019 whereby and whereunder appeal filed by the

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,

after hearing the parties the Tribunal passed the following orders:

"5. On perusal of documents, it is observed that applicant has

failed to prove that when the name of the Company was struck

off, it was in operation or that it remained in operations even

after its name was struck off in the register of Companies.

Therefore, in view of the aforementioned conclusion, prayer is

rejected and appeal is dismissed."

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

i) The Appellant Company i.e. R.P. Casting Private Limited was incorporate

under the Companies Act, 1956 on 14.02.1991 limited by shares with the

Registration of Companies, NCT of Delhi and Haryana having its registered office

at 82/5, Circular Road, Shahdara, Delhi-110032. The Authorised Share Capital

of the Appellant Company is Rs. 45,00,000/- divided into 45,000 (Rs. 100/-

each) and Issued, Subscribed and Paid-up Share Capital is Rs. 43,70,000/-. The

Company Appeal (AT) No. 209 of 2020 3

main object of the appellant company was to manufacture steel alloy castings

from iron scrap, therefore, applied for the allotment of industrial land before the

Rajasthan Industrial Development and Investment Corporation) ("RIICO") and

Plot No. 174 & 175, Phase-II, RIICO Indl. Area, Behror, Alwar, Rajasthan was

allotted by to the company for the manufacturing of Steel Casting products

(Annexure- -5 at page 81 to 115 of the Appeal Paper Book). The Company had

set up a Unit of machinery which was financed by Punjab National Bank and

had commenced its commercial production in the month of November, 1994.

ii) Further case is that the Appellant company continued its manufacturing

and trading activities till the end of September 1997, later on the company

became sick and later on the company became sick and could not make payment

of monthly electric energy bills of Rajasthan State Electricity Board and on

30.09.1997, the Electricity Board had disconnected the power supply of unit,

thereby the manufacturing activities of the company had been stopped

permanently. Consequently, the staff of the company had started leaving the unit

site and by the end of 1997 every person had shifted and no one was there in

the premises of the company where unit was set up. After the closure of the unit

the bank had recalled its loan which was repaid to them by disposing of the plant

and machinery installed at the unit and the other sources of the management.

iii) The Appellant Company was manufacturing the steel casting which is

excisable product, as a good practice the management of the company had

intimated all the concerned departments about the closure of the Unit suo-moto.

The several creditors of the appellant company had filed recovery suit against

Company Appeal (AT) No. 209 of 2020 4

the company which were settled by the management of the company

subsequently. The company had received one Show Cause Notice dated

10.09.1998 from the Commissioner, Central Excise, Commissioner, Jaipur-I,

Statue Circle, Jaipur wherein the duty of Rs. 41,12,000/- was claimed which

was replied by the management of the company vide letter dated 17.09.1998

(Annexure- 6 at page 116 to 121 of the Appeal Paper Book). On 01.04.1999 the

Adjudicating Authority i.e. Commissioner, Central Excise, Commissioner,

Jaipur-I, Statue Circle, Jaipur had confirmed the demand of Rs. 41,12,568/-

along with interest @18% per annum against the Appellant Company vide OIO

no. 10/1999 (Annexure- 7 at page 122 to 127 of the Appeal Paper Book). Since

no one was staying gat the unit site, the aforesaid confirmation order of demand

of Rs. 41,12,000/- dated 01.04.1999 passed by the Adjudicating Authority,

could not be served upon appellant. In the year 2007, the management of the

company came to know about that order and an appeal against the order was

filed on 21.05.2008 before Custom, Excise & Service Tax Appellate Tribunal

(CESTAT) which was dismissed as time barred on 03.10.2008 (Annexure- 8 at

page 128 to 129 of the Appeal Paper Book).

iv) The second appeal was preferred against the order of the CESTAT before

the Hon'ble High Court of Rajasthan and the order passed by the CESTAT was

set aside and the matter was remanded back to the Appellate Tribunal on

13.05.2016 (Annexure- 9 at page 130 to 137 of the Appeal Paper Book). During

the pendency of the second appeal, the Centra Excise Department had attached

the Industrial plot allotted to the company by the RIICO and sold it in public

Company Appeal (AT) No. 209 of 2020 5

auction on 05.04.2014 at the price of Rs. 3,01,00,000/-. The first review petition

was filed by the appellant company before the CESTAT, which was granted and

forwarded to the Commissioner, Central Excise, Alwar, Jaipur on 30.09.2016.

Thereafter, the appellant company had filed its reply on 04.11.2016 to the Show

Cause Notice No. V (72)235/DEM/98 dated 10.09.1998 before the

Commissioner, Central Excise, Alwar and after perusing the reply, the Order in

Original No. ALW-EXCUS-000-CDOM-032-17-18 was passed on 23.01.2018

wherein he had confirmed the duty of Rs. 39,12,568/- and Penalty of Rs.

40,00,000/- (Annexure-11 of the Appeal Paper Book). Thereafter, the appellant

company had preferred an appeal against the aforesaid order before the CESTAT,

Principal Bench, Court No. 1, New Delhi who set aside the impugned order and

allowed the appeal and also treated the auction sale worth Rs. 3.01 Crore as Pre-

Deposit under Section 35F of the Excise Act vide its Final Order No.

A/53321/2018-EX[DB] dated 27.11.2018 (Annexure-12 of the Appeal Paper

Book).

v) Further case is that the Appellant Company was struck off by the

Respondent No. 1 by issuing two notices dated 24th August, 2007 and 28th

December, 2007. The Appellant company filed appeal bearing Appeal No.

771/252/ND/2019 before the Tribunal for restoration of the name of the

Company in the Register maintained by the Registrar of Companies (RoC), NCT

of Delhi and Haryana, after hearing the parties the Tribunal dismissed the appeal

filed by the Appellant. Hence this Appeal.

Company Appeal (AT) No. 209 of 2020 6

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

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

failed to appreciate that the Appellant Company had filed refund claim for Rs.

3,01,00,000/- with the office of Sh. Rajthan Jat, Assistant Commissioner,

Central Goods & Service Office, Alwar, Rajasthan on 27.02.2019. Thereafter, the

Assistant Commissioner ordered that the appellant company is entitled for the

consequential refund claim of Rs. 1,79,20,377/- and interest of Rs. 50,50,910/.

The total refund of Rs. 2,29,81,287/- is confirmed by the Assistant

Commissioner which would be paid in cash through RTGS, therefore, it is just

and equitable to restore the name of the company in the register of companies

as the Hon'ble High Court of Delhi has held in the case of Siddhant Garg & Anr.

Vs. Registrar of Companies & Ors. (Co. Pet. 200/2011).

4. It is further submitted that that the company had filed Income Tax Returns

for the Assessment Year 1995-96, 1996-97, 1997-98 and 1998-99 and also

submitted its financial statements with the Respondent No. 1 till the financial

year ended 31st March 1998 which was duly laid and adopted in the respective

Annual General Meeting of the appellant company under the relevant provisions

of the Companies Act, 1995. The company was having the bank account with

Bank of India and the account statement for the period from 19.07.2006 to

30.09.2014 and 06.01.2014 to 23.05.2020 which are evident at Annexures 16 &

17 of the Appeal Paper Book. Based on the submissions, the impugned order is

fit to be set aside and the Appeal be allowed.

Company Appeal (AT) No. 209 of 2020 7

5. On the other hand, the Respondent No. 1 / Registrar of Companies in his

reply stated that the Appellant Company has not filed its Financial Statements

and Annual Returns since its Incorporation, due to which the Respondent No.

1/ROC 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. The Appellant company has been issued STK-1

on 21st March, 2017. Further, in terms of Section 248(4) of the Companies Act,

2013 public notices in form STK-5 were issued to 27291 Companies including

the Appellant company by making publication in official Gazette on 13.06.2017

and these notices have also been places on the website of Ministry of Corporate

Affairs.

6. It is further stated that 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 21.08.2017

was published on the website of Ministry of Corporate Affairs on 01.09.2017.

Further, it is stated that since the Company was neither able to prove that it was

carrying any business before it was strike off nor have produced 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 with

exemplary cost.

Company Appeal (AT) No. 209 of 2020 8

7. On the other hand, the Respondent No. 2/ Income Tax Department in his

reply stated that the Appellant Company was incorporated on 14.02.1991 with

Authorized Capital of Rs. 20,00,000/- and Paid Up capital of Rs. 5,000/-. The

details of the Income Tax Returns filed by the Appellant Company are as follows:

Assessment Year Date of filing Income/(Loss) Taxes Paid Returned 2012-13 No return file - Nil 2013-14 No return file - Nil 2014-15 No return file - Nil 2015-16 No return file - Nil 2016-17 No return file - Nil 2017-18 No return file - Nil 2018-19 No return file - Nil 2019-20 No return file - Nil

The Appellant company has not filed its return of income since inception,

thereby violating the mandatory provisions under Section 139 of the Income Tax,

1961.

8. After hearing the parties and having gone through the pleadings made on

behalf of the parties, we are of the considered view that there is no illegality

committed by the Ld. Adjudicating Authority while passing the impugned order

and also there is no cogent reason to interfere. Therefore, we do not need to

interfere in the impugned order. The impugned order dated 15.09.2020 passed

by the National Company Law Tribunal (Court-V, New Delhi) in Appeal

Company Appeal (AT) No. 209 of 2020 9

771/252/ND/2019 is hereby affirmed. There is no merit in the Appeal. The

Appeal is hereby dismissed.

9. 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

(Court-V, New Delhi), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 06th January, 2023 R. Nath.

Company Appeal (AT) No. 209 of 2020