Science Pyramid Publications Pvt. Ltd vs Registrar Of Companies, Delhi & Haryana

[Arising out of Order dated 28.08.2018 passed by National Company Law Tribunal, New Delhi Bench - III in Appeal No.244/252/ND/2018]

IN THE MATTER OF: Before NCLT Before NCLAT

Science Pyramid Original Appellant Appellant Publications Private Limited (Through Mr. Ravindra Kumar Pal, Director), Registered Office: 632, Ground Floor, Mirza Wali Gali, Lado Sarai, New Delhi - 110030

Versus

The Registrar of Companies, Original Respondent Respondent Delhi & Haryana, 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi

For Appellant: Shri Karanveer Jindal, Advocate

For Respondent: Shri Vijay Chandra Joshi, Advocate

JUDGEMENT

(14th February, 2019)

A.I.S. Cheema, J. :

1. The Appellant Company has filed this Appeal being aggrieved by

the Judgement dated 28.08.2018 passed by the National Company

Law Tribunal, New Delhi Bench - III ('NCLT', in short) in Appeal 2

No.244/252/ND/2018. By the Impugned Judgement and Order, the

learned NCLT dismissed the Appeal filed by the Appellant under Section

252 of the Companies Act, 2013 ('Act', in short) for restoration of the

Company, which had been struck off on 7th June, 2017 vide STK - 7 (Page

- 160).

2. We have heard learned Counsel for the Appellant and the learned

Counsel for ROC and gone through the Appeal and Reply filed by the ROC.

3. The learned Counsel for the Appellant referred to Annexure - A1

as the copy of the Appeal, which was filed in NCLT with Diary No.2299 of

NCLT. Referring to the Index, the Counsel stated that at Annexure - A5,

the Appellant had inter alia, attached true copy of other records of the

Company "depicting that it was carrying on its business". In this, it is

stated that the Appellant had attached certified true copy of the Bank

Account with Punjab National Bank and the Rent Agreement dated 16 th

October, 2017. While Rent Agreement got referred, the Bank Account

extract was not considered. The learned Counsel referred to the following

observations of the learned NCLT:-

"4. We have considered the plea of the Appellant and the representations of RoC. It is evident from the plea of the Appellant that it admits the default and does not question the due process undertaken by the RoC in striking off the name of the Appellant Company as envisaged under Section 248 of the Companies Act, 2013. The Appellant is seeking restoration of its name in the register as mentioned by RoC relying on the ground that the Appellant as of date is carrying on the business for which it was incorporated. In order

Company Appeal (AT) No.355 of 2018 3

to sustain the said plea, the Appellant has placed before us the following evidences:

i. Acknowledgement of Income Tax payments made and returns filed for the assessment year 2016 - 17 and 2017 - 18.

ii. Certified true copy of annual accounts for the financial year ended 31st March 2012 upto 31st March, 2017.

iii. Rent agreement for the registered office premises from 01.10.2017 upto 31.08.2018.

5. A perusal of the documents filed by the Appellant Company and the arguments made by the counsel indicate that the Company has not filed that annual accounts with the ROC from the inception of the Company. Though the Company has averred in its petition that the Company has filed income tax returns regularly, it is argued by the Learned Standing counsel for IT that the Company has not filed the IT returns from the inception of the Company and has filed the tax returns for the AY 2016-17 and 2017-18 only on 03.03.2018 i.e. well after the Company has been struck off from the rolls of the ROC.

The lease rental documents for the registered office is only from 01.10.2017 to 31.08.2018. There is no indication about the lease details for the period prior to 01.10.2017. Though this is said to be a publishing company, the appellant has not produced sufficient evidence to prove its publication of books including scientific literature.

In view of the above reasons the Tribunal is not inclined to order revival of the Company and the appeal is dismissed."

It is submitted by the learned Counsel that while the learned NCLT

took note of the financial statements and Income Tax Returns and also

Rent Agreement dated 16th October, 2017, NCLT missed out on material

Company Appeal (AT) No.355 of 2018 4

document, which was from the record of Punjab National Bank, showing

statement of account of the Appellant Company which related to the period

- 8th March, 2014 to 8th October, 2017. It is argued that if the Bank Account

had been considered, it would show that throughout this period, the

Company was in operation and was also doing business. The learned

Counsel submitted that the learned NCLT observed that there was no

sufficient evidence to prove that the Appellant was actually doing

publishing. It is argued that the Appellant proceeded on the basis that the

Bank Statement should be sufficient to show that the Company was in

business and in operation and thus, did not go for filing published

documents which according to the Counsel, was in error of the Appellant.

However, it is stated that the Appellant has now filed with this Appeal,

Annexure A-4 - Rent Agreement, which is of 2010 and also filed with it,

copy of relevant pages of a publication which was done in 2017. The

Counsel referred to document at Page - 178 as part of publication titled

"Permutations and Combinations Probability". The Book is stated to be

worth Rs.300/-. The learned Counsel submitted that the Rent Agreement

attached with Annexure - A4, was with the land owner - Bhajpal Yadav

entered into, in 2010 and the Bank Statements have entries showing

payment of rents to this property owner and address of the property in the

Rent Agreement is also registered address of the Company. The learned

Counsel submitted that the Appellant should be given opportunity to rely

on these additional documents.

Company Appeal (AT) No.355 of 2018 5

4. The Counsel for ROC submitted that the ROC had followed all due

procedures and as the Appellant did not respond to Notices, the Company

was struck off.

5. The learned Counsel for the Appellant submitted that the

Appellant, although it is registered publishing Company, is in small

business but the same is reflected from the documents he filed in NCLT

and which he has now tendered here in Appeal. He prayed for opportunity

to Appellant Company to rely on such documents and grant of relief.

6. Going through the material on record, there is bank statement

which appears to have been filed in NCLT, but which skipped attention.

The Appellant has now tendered additional document with Annexure - A4

as Rent Agreement dated 22nd February, 2010 and a document, pages from

what is stated to be book "Permutations and Combinations Probability". It

would be in interest of justice and appropriate that the matter is remanded

back to the learned NCLT so that there is the benefit of the views of learned

NCLT with regard to the Bank Account and these additional documents

which have been now filed. It appears to us that the Bank Account - which

is actually passbook entries filed in NCLT, skipped reference and analysis

before NCLT. It would be appropriate to have the views of NCLT with regard

to this document, which the Appellant claims is vital document to show

that the Appellant Company was in business and in operation at the

relevant time.

Company Appeal (AT) No.355 of 2018 6

7. For above reasons, the Impugned Judgement/Order is quashed

and set aside. Appeal No.244/252/ND/2018 is restored to file of NCLT,

New Delhi Bench - III. The matter is remanded to NCLT. NCLT is requested

to give opportunity to the Appellant to file further documents to support

the Appeal which was filed in NCLT. The Appellant is directed to file copies

of the documents as have been field before us at Annexure - A4, before the

NCLT. NCLT is requested to rehear the parties and take a fresh decision

considering the documents being relied on by the Appellant.

The Appeal is disposed accordingly. No Orders as to costs of

present Appeal.

Parties to appear before NCLT on 05.03.2019.

[Justice A.I.S. Cheema] Member (Judicial)

[Balvinder Singh] Member (Technical) /rs/nn

Company Appeal (AT) No.355 of 2018