R. Varadharajan, Member - (1.) Cano.103/C-Lll/(Nd) /2017 This is an Application which has been filed by the Petitioners to consider the above Petition which has been filed before this Tribunal in the same format or alternatively to treat the said Petition as an Appeal under the provisions of Section 252(1) of the Companies Act, 2013. A copy in advance it is represented by the Ld. Counsel for the Petitioner has also been served upon the Registrar of Companies (RoC) being the Respondent. In view of non-resistance on the part of RoC, this Application is considered and allowed and the Petition as filed before this Tribunal is taken as an Appeal and even though the Petition/Appeal was posted on 18.1.2018, based on the representation for an early hearing as pressed by the Ld. Counsel for the Petitioner in view of payment of salaries and wages to the workers and other statutory payments required to be made and as the bankers have freezed the accounts, the date of hearing may be advanced from 18.1.2018 to 19.12.2017 as was reposted on 12.12.2017. Respondent RoC as well as Income Tax Department do not have any objection in the matter being taken up today for final disposal. Accordingly, the plea of the Ld. Counsel for the Petitioner is accepted and the matter was heard today.
(2.) This is an Appeal which has been preferred by the Petitioner No.l jointly with its Directors/shareholders namely Petitioner No.2 to 4 in relation to an order of striking off the name of the First Petitioner Company passed by the Respondent with effect from 7.6-2017 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 WZ-247,Village-Dasghera, Todapur, New Delhi-110012. The Company is engaged in the business of providing manpower services and has been carrying on the said business even as of today without any let. Ld. Counsel for the Petitioner also points out that the Company has been filing its income tax returns with the Income Tax Authorities. Further, it is also pointed out that the First Petitioner Company is registered with the Labour Department as labour contractor and manpower supplier and in relation to payments received from its customers, tax is also deducted at source in Form 26-AS in relation to the invoices raised which is evidenced by Form 26-AS for the period 2016-17. It is also submitted by the Ld. Counsel for the Petitioner that the First Petitioner Company is also amenable to service tax and it has been regularly filing returns with respect to service tax as well as making payments of service tax to the concerned authorities. Ld. Counsel for the Petitioner also draws attention to the fact that being a manpower service provider and supplier as also a labour contractor, it has also filed necessary returns with Employees State Insurance (ESI) , provident fund and labour welfare for all these years and as proof of filing returns and making payments towards all of the above, evidences have been enclosed as Annexure filed along with this Appeal. It is further pointed out by the Ld. Counsel that presently the Appellant No.l Company is having more than 3900 employees on its payroll and monthly outflow by way of salaries to the above noted employees comes to approximately anywhere between Rs.3.00 crore to Rs.3.50 crore per month. 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 inadvertence on the part of the professional engaged to carry out the said compliance. However, in view of nonfiling of the returns, the name of the Petitioner Company from the register as maintained by the RoC has been struck off on and from 7.6.2017 and in view of demonstration of continued operation of the Company over the past years and presently and also its business is alive and kicking during all these years 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 it is not restored.
(3.) Upon notice to the Respondent RoC, RoC has filed reply to the above said Appeal. In paragraph 3 and 4 of the reply, the following has been submitted: 3. wIri pursuance of direction issued by the Ministry vide its Office Memorandum No.3/53/2017.CLII 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 for non-filing of statutory documents for financial years ended 31.03.2014 and 31.03.2015. Section 248 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 of notice- (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 ver nacular language in a leading ver nacular 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";