Dr. P.S.N. Prasad, Member (Judicial); Umesh Kumar Shukla, Member (Technical)
1. This Company Appeal has been filed on 04.07.2022 by Vikas Kumar, Member and Director (DIN No.07570536) of Wayfast IT Solution Private Limited having registered office at Dukan No. 27, Sector 14, Pocket C, Opposite Side of Bille Ka Dhabha, District Hisar-125001, Haryana (hereinafter referred to as the “Company”) under Section 252(3) of the Companies Act, 2013 seeking restoration of the name of the company on the register of companies maintained by the Registrar of Companies, NCT of Delhi and Haryana (hereinafter referred to as ‘RoC’) against its order dated 20.04.2022 of striking off the name of the Company from the Register of Companies, maintained in the Office of the RoC.
2. The registered office of the Company is situated in the District Hisar in the State of Haryana. Thus, the matter of the Appeal is within the jurisdiction of this Tribunal.
FACTS OF THE CASE
3. The facts of the case, as stated in the Appeal are summarised below:
(i) The Wayfast IT Solution Private Limited (hereinafter referred to as the “Company”) was incorporated under the Companies Act, 2013 on 08.08.2017 vide CIN: U72200HR2017PTC070239 as a private company limited by shares with the RoC. The Authorized Share Capital of the Company is Rs.10,00,000/-(Rupees Ten Lakh only) divided into 1,00,000 (One Lakh) equity shares of Rs.10/- (Rupees Ten) each and the Issued, Subscribed & Paid Up Capital of the Company is Rs.1,00,000/- (Rupees One Lakh only) divided into 10,000 (Ten Thousand) equity shares of Rs.10/- (Rupees ten) each. The copy of Certificate of Incorporation and Memorandum & Articles of Association of the Company are annexed with the Appeal as Annexure-1 & Annexure-2 respectively.
(ii) As per Master Data of the Company, attached with the Appeal as Annexure-10, the Company has two directors namely Vikas Kumar (DIN-07570536) since 08.08.2017 and Kapil Dev (DIN-09473241) since 19.01.2022 and as per list of shareholders, attached with the Appeal as Annexure-11, these two directors alongwith Debasmita Biswal are its equity shareholders holding 7500, 1000 and 1500 equity shares respectively.
(iii) The RoC initiated proceedings under Section 248 of the Companies Act, 2013 due to defaults in statutory compliances, namely, failure to file financial statements & annual returns for the periods 2018-2019, 2019-2020 & 2020- 2021 and suo moto, struck off the company's name from the register of companies maintained by it. A copy of the notification striking off the name of the Company along with the relevant extract of the list has been annexed with the Appeal as Annexure-9.
(iv) The RoC has not followed the procedure prescribed, as the notices required under Section 248(1) were not received and it has proceeded to issue notice publishing the name of the Company in the Official Gazette under Section 248(5) of the Companies Act.
(v) The Company has been active since incorporation and has also been maintaining all the requisite documentation, as per the provisions of the Companies Act, 2013 and convened its Annual General Meeting regularly. Its turnover shows that it cannot be concluded that the Company is a defaulter or non-functional or a defunct Company. The copy of the audited balance sheets for the year ended 31 Mrach, 2019, 2020 and 2021 have been annexed with the Appeal as Annexure-3, Annexure-4 and Annexure-5 respectively.
(vi) The Company inadvertently missed to file the financial statement & annual returns with the RoC, but has complied with all other statutory formalities within time.
(vii) The company has also obtained the GST Registration Certificate, which is annexed with the Appeal as Annexure-6, and has been duly filing its statutory returns within time.
(viii) The Company has filed its Income Tax Return with the Income Tax Department, which clearly shows that the Company was active and carrying business at the time of striking off by the ROC. The acknowledgement of return has been annexed with the Appeal as Annexure-7.
(ix) The bank transactions clearly state that the company was in operations regularly. The copy of the bank statement of the Company has been annexed with the Appeal as Annexure-8.
(x) As the Company is in full operation and carrying on business, it has a number of monthly liabilities as salaries, rent, creditors, which are pending. Because of non-payments of pending dues, the creditors started demanding dues from the Company.
(xi) The object of section 252(3) of the Companies Act, 2013 is to give a chance to the Company, its members and creditors to revive the Company and give them an opportunity of carrying on the business.
(xii) In the event of revival and restoration of the name of the Company in the Register maintained by the RoC, it shall file all outstanding statutory documents i.e. the financial statement & annual returns from the year 2019 till up to date along with the filing fees and the additional fee, as applicable on the date of actual filing and the certified copy of the Tribunal Order for the restoration of the name of the Company to the Register maintained by the RoC etc.
(xiii) The present Appeal is within the limitation period stipulated by Section 252(3) of the Companies Act, 2013, i.e. 20 years.
(xiv) It has not previously filed any application, writ or suit regarding the matter in respect of which this petition is being made before any Court of law or any other authority or any other Bench or Board and no such application, writ or suit is pending before any of them.
(xv) If the name of the Company is not restored on the Register of Companies maintained by RoC, the Appellant, as well as its shareholders shall suffer irreparable loss and hardship and the Appeal is made bonafide and in the interest of justice.
(xvi) It has been prayed that this Hon'ble Tribunal may issue notice to the RoC and after hearing the parties allow the Company Appeal directing the RoC to restore the name of the Company in the register of companies maintained by it and pass such other order(s)/ direction(s), as may deem just and proper in terms of Section 252(3) of the Companies Act, 2013.
4. This Tribunal in its hearing held on 22.07.2022 directed to issue the notice of the petition to the RoC and the Income Tax Department.
Report of RoC
5. The RoC has submitted its report vide Diary No. 01458/01 dated 29.12.2022, vide which it has submitted that:
(i) As per the available records on MCA-21 portal, the Appellant is the Director of the Company and last directors of the Company are Vikas Kumar and Kapil Dev. The copy of the Master Data has been enclosed with the report as Annexure-I.
(ii) The Company has not submitted any documents since the financial year ended on 31.03.2019, before it was considered to be struck off and no subsequent documents had been filed by the Company to obtain the status of a "Dormant Company" under Section 455 of the Companies Act, 2013. Hence, this office had reasonable cause to believe that the Company was not in operation, and therefore, its name was considered for striking off from the Register of Companies.
(iii) The Notice STK-1 were sent to the Company along with its Director namely Vikas Kumar and Satish Kumar on 19.11.2021 under section 248(1) of the Companies Act, 2013 through BNPL (Book Now Pay later) service of Department of Post vide dated 13.12.2021. The copy of notices have been enclosed with the report as Annexure-II.
(iv) Thereafter, the public notice in form STK-5 was issued for companies containing name of the subject Company published on the website of the Ministry of Corporate Affairs on 30.01.2022.
(v) Thereafter, the name of the Company was struck off as per the provision of Section 248(1)(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 vide Notice in STK-7 dated 20.04.2022 published in the Official Gazette.
(vi) The action of striking off of the Company was legal and justified, as the Company was not carrying on any operations for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the Company for two or more years).
6. The RoC, in its report, has prayed that:
a) The appellant may be directed to prove that at the time of striking off, the Company was carrying on business or was in operation.
b) If the name of the Company is restored, the appellant may be directed to file all the pending Annual Returns and Balance Sheets of the Company with the RoC within such time as may be specified.
c) The cost may be awarded in favour of RoC, as the Company deliberately failed to file its statutory returns with RoC under the Companies Act, 2013.
Report of Income Tax Department
7. The Income Tax Department filed its report vide Diary No.01458/2 dated 15.09.2023 through Rajender Singh, Income Tax Officer, Ward 1, Hisar, in which it has stated that the above Company having PAN No. AACCW0570A is assessed with Ward-1, Hisar and the Company has been filing its Return of Income for the F.Y. 2017-18 relevant to A.Y. 2018-19 and 2019-20 relevant to A.Y. 2020-21 only. As of now a demand of Rs.1020/- for the assessment year 2018-19 is outstanding against the Company.
8. It has been prayed in the report that the appropriate order may be passed and the interest of the revenue be protected and the Company may also be directed to discharge the demand, if any, found later on against the company.
ANALYSIS AND FINDINGS
9. The Notice STK-1 was issued on 19.11.2021 and the name of the company was struck off vide notice dated 20.04.2022 published in Official Gazette.
a. The Institute of Chartered Accountants (ICAI) has envisaged the concept of Unique Document Identification Number (UDIN) to counter misrepresentation of Chartered Accountants and forgeries of signatures of CA’s that mislead the authorities and stakeholders relying upon such documents or certificates and has made it mandatory to generate the UDINs for all the certificates, reports and documents issued/ certified by them w.e.f. 1st July, 2019. However, it is noted that the financial statements for the years 2018-19, 2019-2020 and 2020-2021, submitted by the appelleant as an evidence of carrying on business by the company, which has been audited by CA Mayank Goyal, Mayank Goyal & Co. Chartered Accountant vide auditors certificate dated 15.06.2019, 30.05.2022 and 30.05.2022 respectively, but the same does not have UDIN and therefore cannot be relied upon. Further, the above financial statements would cover the period up to March, 2021 and would not be the sufficient evidence of carrying on business by the company in 2022.
b. The income tax return for the assessment years 2018-19 submitted with the appeal, which shows Gross total income as nil, would relate to the financial years 2017-18 covering the period up to March, 2018 and may not be construed as sufficient evidence of carrying on the business by the company in 2022.
c. The GST registration certificate issued on 03.02.2022 submitted by the appellant, in the absence of GST returns, also does not establish the fact of carrying on the business by the company.
d. However, the petitioner has submitted bank statement of ICICI Bank from 26.12.2021 to 31.03.2022 showing transactions during the period, which shows the continuation of business.
10. We have heard the submissions of the Ld. Counsel of the appellant and Respondent and also perused the paper book of the case file. After careful consideration of the report of RoC and other documents, this Tribunal is of the view that it would be just, equitable, and fair in the interest of justice to provide an opportunity to the Company to rectify its defaults and continue the business. Accordingly, this Tribunal, in the exercise of the powers conferred on it under Section 252 of the Companies Act, 2013, orders that:
a. The RoC, subject to payment of costs of ₹1,00,000/- (Rupees one lakh only) to be paid by the Appellant in favour of “Prime Minister National Relief Fund” is directed to restore the original status of the Company, as if the name of the Company had not been struck off from the register of companies with the resultant and consequential actions like changing status of Company from ‘struck off’ to ‘active’.
b. The appellant is directed to deliver a certified copy of this order to the RoC, within thirty days of the receipt of this order.
c. On such delivery and after due compliance with the above directions, the RoC is directed to publish the order in the official gazette under his office, name and seal.
d. The appellant/ company is directed to file all the pending documents including all the due annual returns and balance sheets along with the requisite fee and additional fee, as prescribed in the Rules and fines/ penalty, as decided by RoC, within 45 days from the date, on which name of the Company is restored on the register of companies maintained by the RoC.
e. This order is confined to the violations, which ultimately led to the impugned action of striking off the name of the company. It will not come in the way of the RoC, to take appropriate action in accordance with the law for any other violations/offences, if any, committed by the appellant/ company prior to or during the period when the name of the company remained struck off.
f. The Income Tax Department is granted the liberty to proceed against the appellant/ Company for non-filing/belated filing of the return of income/other default(s) under the provisions of the Income Tax Act, 1961 and the appellant/Company is directed to discharge the outstanding demand and the demand, if any, found later on against the Company.
11. The CP(IB)l No. 64/Chd/Hry/2022 is allowed and disposed of accordingly.
12. The Registry is directed to send/ e-mail copies of the order forthwith to all the parties including the Counsel.
