Surender Kumar Singh vs Registrar Of Companies

[Arising out of order dated 21.12.2020 passed by the National Company Law Tribunal (New Delhi, Special Bench, Court-II) in Appeal 389/252/(ND)/2020]

IN THE MATTER OF: 1. Surender Kumar Singh S/O Mr. Raghav Singh Residence of RZ-1/57, Street-1, Tuglakabad Extn, Kalkaji, South Delhi, New Delhi-110019. ....... Appellant No. 1. 2. Sidhi Singh Residence of Industrial Area, Buxar, Bihar-802101. ....... Appellant No. 2.

Versus 1. Registrar of Companies NCT of Delhi and Haryana 4th Floor, IFCI Tower, 61, Nehru Place, New Delhi-110019. ....... Respondent No. 1. 2. Income Tax Department DCIT, 428-429, Lawyers Chamber, Block-I, Delhi High Court, Shershah Suri Marg, New Delhi 110003. ....... Respondent No. 2.

Present: For Appellant: Mr. Mr. Ashutosh Gupta, Mr. Gaurav Rana and Mr. Yatharth Jain, Advocates. For Respondent:- Present but not marked appearance. 2

JUDGMENT

(09th December, 2022)

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

21.12.2020 passed by the National Company Law Tribunal (New Delhi, Special

Bench, Court-II) in Appeal 389/252/(ND)/2020 whereby and whereunder appeal

filed by the Appellant Company for restoration of the name of the Appellant

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 Company is a private limited Company was incorporated

under the Companies Act, 1956 on 22.02.2002 and is involved in the field of

power Generation and Related business having its office at New Delhi. The

Appellant Company is having following assets and Liabilities as on 31st March

2017.

Sr. No. Particulars Amount (INR) 1. Long term borrowings Rs. 33,98,098/- 2. Other current liabilities Rs. 13,00,000/- 3. Long term loans and advances - 4. Cash & Cash equivalents Rs. 3,72,176.21/-

ii) The Appellants Company is being continuously operative and the directors

were administrating the functions of the business right since incorporation. The

Company Appeal (AT) No. 53 of 2021 3

Company sustained to operate till date and no lag in pursuing operations was

made by the management.

iii) The Appellant Company has been approached with the new project as well

and the board of directors after analyzing the project feels that the project is in

the best interest of the shareholders as well as the society and have agreed to

take the same for further endeavours. The Appellant Company will start the new

project on the land that was taken on lease by the Appellant Company which

was issued to the Appellant Company by Bihar Industrial Area Industrial

Development Authority (BIADA) in Bihar measuring 3.50 Acre bearing Plot No.

H-4, 5, 6 & 7, C-17(P), C-18, 19, 20, 21, 22 & C-23 on 7th August 2007 for the

establishment of power electricity Industry for a lease of 90 years. Thus, it

categorically reflects that, Company is in operation and carrying its business

effectively from past several years. The Order itself records, the Appellant

submitted various documents showing the company was in operation from the

date of its incorporation. The latest audited financial statements for immediate

three preceding Financial Year ending 31.03.2015, 31.03.2016, 31.03.2017 are

also annexed as Annexure-E of the Appeal Paper Book.

iv) The Respondent No. 1 struck off the name of the Appellant Company from

the registrar of companies due to default in statutory compliance and failure to

file return since 31.03.2013. The Respondent initiated proceedings under

Section 248 of the Companies Act, 2013 and finally struck off the name of the

Appellant Company from its register vide its Notice No. ROC/DEL/248(5)/STK-

7/2879 dated 30th June 2017 and vide serial no. 14919 of the list of companies,

Company Appeal (AT) No. 53 of 2021 4

whose name were sought to be struck off due to default in Statutory

Compliances. Thereafter, being aggrieved by the notice of the Respondent No. 1

of striking off, the Appellant Company approached the Tribunal under Section

252 of the Companies Act, 2013 for revival of the Appellant Company and after

hearing both the parties, the Tribunal passed the impugned order which led to

filing of this Appeal.

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

while passing the impugned order has erred in law and fact by not considering

that the Appellant Company long term borrowings of Rs. 33,98,098/- which are

still to be paid back to the Creditors. The Tribunal also failed to consider the fact

that the Appellant Company has fixed assets worth Rs. 43,10,069.45/- which

are still lying with the Company and the same cannot be utilized or disposed off

while the Company is struck off. Further, the Tribunal has also not considered

the fact that the huge cash & cash equivalents of Rs. 3,72,176.21 and Financial

Statements for the year 2014-15, 2015-16, 2016-17 which shows that the

Company was in operation. The Tribunal has erred in fact and law by not

appreciating the fact that the Company had taken land admeasuring 3.50 Acre

bearing Plot No. H-4, 5, 6 & 7, C-17(P), C-18, 19, 20, 21, 22 & C-23 on lease of

90 years in Bihar on 7th August, 2007 for establishing of power electricity

Industry which in itself is ample to corroborate that the company was in

operation at the time of alleged Strike Off by the Respondent No. 1/Registrar of

Companies. The Ld. Counsel for the Appellants relied on several judgments

Company Appeal (AT) No. 53 of 2021 5

passed by this Tribunal wherein this Tribunal directed the restoration of the

Appellant Company in the Register maintained by the RoC, which are hereunder:

• Khetan Granite Private Limited Vs. Office of Registrar of Companies,

Jharkhand, MANU/NL/0017/2020.

• Culcutta Rubbar Factory Pvt. Ltd. and Ors. Vs. V Registrar of Companies,

Delhi and Haryana, MANU/NL/0602/2019.

• Insuflex Ind Private Ltd. Vs. Registrar of Companies, Maharashtra and Ors.,

MANU/NL/0622/2019.

• Basant Kumar Berlia and Ors. V Registrar of Companies, West Bengal

Nizam Palace and Ors., MANU/NL/0031/2019.

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, the last Directors of

the Company namely Surender Kumar Singh and Sidhi Singh, filed its financial

statements till financial year 31.03.2012, 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 in March 2017 by invoking the

provisions of Section 20 of the Companies Act, 2013. 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 07.06.2017

was published on the website of Ministry of Corporate Affairs on 07.06.2017.

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 Company Appeal (AT) No. 53 of 2021 6

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 in his

reply stated that in connection with the case of M/s Poorvanchal Urja Pvt. Ltd.

(PAN: AACCP7429D) is assessed to tax in Ward 20(1), New Delhi. In the case, as

per ITBA portal, the following demands are outstanding:

Sl. No. Assessment Year Demand Outstanding (in Rs.)

1. 2013-14 860/-

2. 2017-18 39,260/-

3. 2019-20 1000/-

Further, the assessee company has filed its ITR up to assessment year

2020-21 and as per record, no such income tax proceedings are pending as on

date in Ward, however, proceeding may be pending before the faceless

assessment unit which cannot be ascertained by the Income Tax Office. The

Income Tax Department has no objection with regard to restoration of M/s

Poorvanchal Urja Pvt. Ltd. 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 Financial Statements for the year

2014-15, 2015-16, 2016-17 and Income Tax Return of the Appellant Company

shows that the Appellant Company is having substantial movable as well as Company Appeal (AT) No. 53 of 2021 7

immovable assets. Therefore, 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, Special Bench,

Court-II) 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

21.12.2020 passed by the National Company Law Tribunal (New Delhi, Special

Bench, Court-II) in Appeal 389/252/(ND)/2020. The name of the Appellant

Company be restored to the Register of Companies subject to the following

compliances.

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

Registrar of Companies, NCT Delhi & Haryana within 30 days.

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.

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

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

filing of statutory returns/documents against the Company and

Directors.

The instant Appeal is allowed to the above extent.

Company Appeal (AT) No. 53 of 2021 8

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, Special Bench, Court-II), forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

New Delhi 09th December, 2022 R. Nath.

Company Appeal (AT) No. 53 of 2021