R. Varadharajan, Member - (1.) This is an Appeal/ Application/ Petition which has been preferred by the Petitioner Company in relation to an order of striking off the name of the Petitioner Company passed by the Respondent with effect from 07.06.2017 under the provisions of Section 248 of the Companies Act, 2013. Ld Counsel for the Petitioner represents that the Petitioner Company was incorporated under the provisions of Companies Act, 1956 and has its registered office at 50/1, First Floor, Jawala Heri Market, New Delhi - 110063. The Company is primarily into the business of trading of computers/ hardware/ accessories/ mobile phones and other related peripherals and ancillary business relating to the field of computers and electronics and has been carrying on the said business even as of today. Ld. Counsel for the Petitioner represents that the Company has been filing its income tax returns with the Income Tax Authorities. It is also submitted by the Ld. Counsel for the Petitioner that the First Petitioner Company is also amenable to Sales Tax/VAT and it has been regularly filing returns with respect to the Sales Tax/VAT as well as making payments to the concerned authorities and proof of filing returns and making payment towards all of them have been enclosed as Annexure filed along with this Appeal. It is further pointed out by the Ld. Counsel that presently the Petitioner Company is having 18 number of employees on its payroll. It is also submitted by the Ld. Counsel that the bank account of the Petitioner Company has been freezed and marked as 'No Debit', as a result, the Petitioner is not in a position to issue cheques towards expenses, salaries and purchases. However, despite all these compliances with the various regulatory authorities, compliance in relation to the provisions of Companies Act, 2013 with the Respondent RoC by filing annual returns and financial statements has been omitted to be complied with and that the said omission is not mala fide and according to Ld. Counsel for the Petitioner has occasioned due to the death of one of the Directors of the company who was responsible to carry out the said compliance. However, in view of non-filing of the Annual returns and Financial Statement, the name of the Petitioner Company from the register as maintained by the RoC has been struck off on and from 07.06.2017 and in view of demonstration of continued operation of the Company over the past years and presently also its business is being alive and running it will seriously prejudice the interest of the Company and the Petitioners and that taking into consideration the compliances made by the Petitioner in relation to other statutory authorities and since no one will be prejudiced if the Appeal is allowed, but on the other hand, the interest of all concerned including shareholders/creditors, employees of the Company will be seriously affected if the appeal is not allowed and the name of the company in the register of the RoC is not restored.
(2.) Upon notice to the Respondent RoC, RoC has filed its reply to the above said Appeal. In paragraph 3 and 4 of the reply, the following has been submitted: "3. "In pursuance of direction issued by the Ministry vide its Office Memorandum No.3/53/2017.CUi dated 07.02.2017, this office identified 53312 Companies for initiating action for striking off their names in terms of provision of section 248 (1) (c) of the Companies Act, 2013 which is reproduced as under: Section 248(1) (C) of Companies Act, 2013 provides "Where the Registrar has reasonable cause to believe that- (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice." 4. Pursuant to sub-section (1) and sub-section (4) of section 248 of the Companies Act, 2013 and Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 (reproduced herein below for kind reference) in the first phase 27291 companies were shortlisted. Section 248(4) of the Companies Act, 2013 provides "A notice issued under sub-section (1) or sub-section (2) shall be published in the prescribed manner and also in the Official Gazette for the information of the general public. Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 provides - "Manner of publication ofnotice- (1) The notice under sub-section (1) or sub-section(2) of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be- Placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard; Published in the Official Gazette; Published in English language in a leading English newspaper and at least once in verna cular language in a leading verna cular language newspaper, both having wide circulation in the State in which the registered office of the company is situated. (2) The Registrar of Companies shall, simultaneously intimate the concerned regulatory authorities regulating the company viz. the Income-tax authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking off the names of such companies and seek objections, if any, to be furnished within a period of thirty days from the date of issue of the letter of intimation and if no objections are received within thirty days from the respective authority, it shall be presumed that they have no objections to the proposed action of striking off or removal of name"
(3.) Pursuant to the above provisions and rules, it is represented by the Ld. Company Prosecutor for RoC that the procedure in relation to striking off was adopted in relation to Companies numbering 22864 out of 27291 Companies in which list the Petitioner Company also figures and hence was struck off. It is also evidenced from the report/observations as filed by the Respondent as represented by the Ld. Company Prosecutor that Appellant had not filed its Annual Returns and Balance Sheets since financial year ended on 31.03.2013 due to which the Respondent had reasonable cause to believe that the petitioner company was inactive. It is also pointed out on behalf of the Respondent that due process of law prior to striking off was strictly complied with and in view of the Respondent not having received any communication from the Petitioner Company in response to the notice issued under sub-Section 1 and sub-Section 4 of Section 248 of the Companies Act, 2013 and Rule 7 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016, the Respondent was forced to follow the procedure for striking off and in the circumstances the decision for restoration is being left to this Tribunal for its consideration.;