Sark Infraprojects Private Limited vs Registrar Of Companies, West Bengal

[Arising out of Order dated 25th November, 2019 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in CP (Appeal) No.947/KB/2019]

IN THE MATTER OF: M/s Sark Infraprojects Private Limited A Private Limited Company Registered under Companies Act, 1956 CIN: U70109WB2009PTC134443 Registered Office at: 1st Floor, 1 Crooked Lane, Kolkata - 700069 ...Appellant

Versus

Registrar of Companies, West Bengal Registered Office at: Nizam Palace, 2nd MSO Building 2nd Floor, 234/4, Acharya Jagdish Chandra Bose Road Kolkata - 700020 ...Respondent

Present: For Appellant : Mr. Jai Anant Dehadrai and Ms. Adrita B., Advocates

For Respondents : Mr. Sanjib Kumar Mohanty, Sr. Panel Central Govt. Counsel with Mr. Subesh Kumar Sahoo, Advocates

(20th December, 2022)

KANTHI NARAHARI, MEMBER (TECHNICAL)

Preamble:

The Present Appeal is filed by invoking provisions of Section 421 of the

Companies Act, 2013 against the order dated 25th November, 2019 passed by

the National Company Law Tribunal, Kolkata Bench, Kolkata in CP (Appeal)

No. 947/KB/2019 under Sections 252(3) of the Companies Act, 2013 whereby Company Appeal (AT) No. 72 of 2020 1 of 8 the National Company Law Tribunal (in short 'NCLT') dismissed the

Application filed by the Appellant herein.

Brief Facts:

Appellant's Submissions:

2. The Learned Counsel for the Appellant submitted that aggrieved by the

aforesaid order, the Appellant preferred the present Appeal and narrated the

brief facts.

3. It is submitted that the Appellant filed the Application before the NCLT

under Section 252(3) of the Companies Act, 2013 for restoration of name of

the Appellant Company in the Register maintained by the ROC, West Bengal.

4. It is submitted that the ROC, West Bengal issued notice under Sub-

section (1) and (4) of Section 248 of the Companies Act, 2013 in Form STK-5

dated 29.06.2018 whereby it is stated that the companies as mentioned in

Annexure-A have not been carrying on any business or operation for a period

of two immediately preceding Financial Years and have not made any

application within such period for obtaining the status of dormant company

under Section 455 of the Companies Act, 2013. Further it is stated that it

proposes to remove/strike off the name of the companies as mentioned in

Annexure-A from the Register of Companies and will be dissolved unless a

cause is shown to the contrary within 30 days from the date of notice.

5. It is submitted that in Annexure-A to the aforesaid notice, the name of

the Appellant Company stands at Sl. No.7090.

Company Appeal (AT) No. 72 of 2020 2 of 8

6. It is submitted that thereafter the ROC, West Bengal issued Form No.

STK-7 under sub-section (5) of Section 248 of the Companies Act, 2013 dated

24.08.2018 stating that the companies as per the list attached as Annexure-

'A' have this day i.e. 24.08.2018, been struck off from the Register of

Companies and the said companies are dissolved. The name of the Appellant

Company stands at Sl. No. 4510 of Annexure-'A'. The reasons shown for

striking off from the Register of Companies is that the Appellant Company

and the similarly placed companies have not been carrying on any business

or operation for a period of two immediately preceding years.

7. It is submitted that the NCLT observed that there is not just reason to

restore the name of the Company on the Register of Companies for the reason

that the Company is not an active company and not carrying on any business

for which it was incorporated. Accordingly, the application of the Appellant

was dismissed.

8. It is submitted that the Company was incorporated as a Private Limited

on 01.04.2009 and as per the provisions of the Companies Act, 1956, the

company acquired its prime assets viz. Real Estate unit in Kolkata and the

Company is in operation since its incorporation as per the objectives of the

Appellant's Articles of Association. The Company duly filed the Annual

Returns, Balance Sheet and Income Tax Returns for the Financial Years prior

to and till 31.03.2013. However, due to unavoidable circumstances the

Appellant Company inadvertently delayed in performing statutory

compliances in accordance with the Companies Act for the Financial Years

2015-16 and 2016-17.

Company Appeal (AT) No. 72 of 2020 3 of 8

9. It is submitted that the Appellant Company is a functional and carrying

out operations and activities and also paid Income Tax Returns for the

Financial Year 2017-18 prior to issuance of notice under sub-section 4 of

Section 248 dated 29.06.2018. The Company also filed balance sheets for the

FY 2016-17, 2017-18 and 2018-19 and also filed Income Tax Returns for the

aforesaid Financial Years.

10. It is submitted that the NCLT has not considered the documents filed

there at, to establish that the Appellant Company had filed the Annual

Returns, Balance Sheets and Income Tax Returns for the Financial Years

2015-16, 2016-17 and 2017-18, thereby it complied the statutory

requirement as per law.

11. The Learned Counsel further submitted that there is no other reason

for striking off the name of the Appellant Company except as stated in the

notice that the Company is not in operation for a period of two immediately

preceding Financial Years.

12. In view of the submissions as made above the Learned Counsel prayed

this Bench to allow the Appeal by setting aside the impugned order.

Respondent's Submissions:

13. The Learned Counsel appearing for the ROC filed its Reply among other

pleas it is also stated at para 7 of the Reply, that the name of the Company

which is struck off from the Register of ROC can be allowed to be revived

under Section 252 of the Companies Act, 2013. However, the Appellant may

be directed to file all the pending statutory returns with the additional fees

Company Appeal (AT) No. 72 of 2020 4 of 8 within 30 days from the date of passing of the order, failing which the ROC

may be directed to strike off the name of the Company again without giving

any notice to the Appellant.

Analysis / Appraisal:

14. Heard the Learned Counsel appeared for the respective parties, perused

the pleadings and documents. The short point for consideration is whether

the Appellant has made out any ground to allow the Appeal as prayed for.

15. On the facts relating to incorporation and filing of statutory

compliances till 31.03.2015, it is not in dispute. The ROC, West Bengal issued

notice under Section 248(1) of the Companies Act, 2013, by which almost

10,650 companies are shown that they are in default. Further, as per the said

Annexure-'A' the only reason shown that the Companies as mentioned in

Annexure-A have not been carrying on any business or operation for a period

of two immediately preceding Financial Years and have not made any

application within such period for obtaining the status of dormant company

under Section 455 of the Companies Act, 2013. However, the ROC provided

30 days' time from the date of notice for showing a cause contrary to the

reason as mentioned in the aforesaid notice. However, the ROC vide its Form

STK-7 dated 24.08.2018 struck off the names of 7145 Companies from the

Register of Companies and stated to be dissolved w.e.f. from the said date.

16. From the notice dated 29.06.2018, it is seen that there is no specific

charge made against the Appellant Company except non-compliances of

statutory requirement. Neither the case of the ROC nor NCLT that there are

certain complaints against the company with regard to its activities and it is

Company Appeal (AT) No. 72 of 2020 5 of 8 carrying on business which is prejudicial to the public interest. The only

ground for striking off the name of the Appellant Company is that the

Appellant Company is not in operation for two years immediately preceding

Financial Years.

17. From the records, it is seen that the Appellant Company filed its

statutory compliances as per law. Whilst the NCLT though in its order at para

3 observed that the Appellant Company enclosed/annexed with the Appeal

the copies of the Annual Returns, Balance Sheet and Income Tax Returns for

the Financial Years 2015-16, 2016-17 and 2017-18 and 2018-19. Despite

sufficient evidence placed before it, the NCLT failed to consider the same on

merits.

18. Even though the law provides for striking off the name of the Company

for non-complying the statutory requirement as stipulated under Section 248

Companies Act, 2013, the statute also provides Section 252 of the Act to prefer

an Appeal to the Tribunal by the aggrieved person against such dissolution of

the Company. The Appellant rightly exercised its jurisdiction under Section

252 of the Companies Act, 2013 before the NCLT. This Tribunal is of the

opinion that the removal of the name of the company from the Register of

Companies is not justified. Under Section 252 of the Act, the NCLT can

exercise its power to restore the name of the Company, upon considering that

the ROC passed the order striking off the name of the company from the

Register, in absence of any sufficient grounds as specified in Section 248,

provided an opportunity to be afforded to the Registrar and the Company and

all the concerned persons thereto.

Company Appeal (AT) No. 72 of 2020 6 of 8 Conclusion

19. As stated, (supra) there is no other ground except as mentioned in the

notice dated 29.06.2018 for striking the name of the Appellant Company suo

motu. The reasons for not restoring the company and dismissing the

application of the Applicant is in our view not a sound ground.

20. Viewed in the perspective this Tribunal comes to a resultant conclusion

that the impugned order dated 25.11.2019 passed by the NCLT, Kolkata

Bench, Kolkata is set aside.

21. Accordingly, the Appeal is allowed. No order as to costs. Applications, if

any, stands disposed of.

Directions

22. The ROC, West Bengal is hereby directed to restore the name of the

Appellant Company to the Register of Companies, West Bengal subject to the

following compliances:

(i) Appellant Company shall pay a costs of Rs.50,000/- (Rupees

Fifty Thousand) to the Registrar of Companies, West Bengal

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 the

requisite charges/fee as well as late fee/charges as applicable

within 08 (Eight) weeks thereafter.

Company Appeal (AT) No. 72 of 2020 7 of 8

(iii) Notwithstanding the order of this Tribunal, the ROC is liberty to

take any other steps punitive or otherwise under the Companies

Act, 2013 for non-filing/late filing of statutory

returns/documents against the Appellant Company and its

Directors as applicable.

23. Registry of this Tribunal is directed to upload the Judgment on the

website of this Appellate Tribunal and also send a copy of this Judgment to

the National Company Law Tribunal, Kolkata Bench, Kolkata, forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Kanthi Narahari] Member (Technical)

[Ms. Shreesha Merla] Member (Technical) pks

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