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2025 Supreme(Online)(NCLT) 1584
NATIONAL COMPANY LAW TRIBUNAL
Shammi Khan, J, Sanjeev Kumar Sharma, T
Chandra Shekhar Bajaj – Appellant
Versus
RoC Gwalior MP – Respondent
Company Petition No. 5 (MP) of 2024
For the Appellants/Petitioners: Mr. Vinit Nagar, PCS
For the Respondents: None
For Income Tax Dept.: Ms. Yashika Bondwal, Proxy Adv.
The Tribunal established that non-filing of statutory returns does not imply cessation of business, allowing restoration of the company's name based on evidence of ongoing operations.
Headnote:(A) Companies Act, 2013 - Section 252(3) - Restoration of company name - The petitioner sought restoration of the name of Sainath Colonizers Private Limited, struck off for non-filing of statutory returns, asserting ongoing operations evidenced by tax filings and project activities - The Tribunal found that the company was a going concern at the time of strike-off, emphasizing that non-filing does not equate to cessation of business - The Tribunal exercised discretion to restore the company’s name, subject to compliance with statutory obligations. (Paras 1, 18, 23, 25)
(B) Section 248(1)(c) - Striking off of company name - The Tribunal noted that the Registrar of Companies acted on an incomplete assessment regarding the company's operational status, ignoring evidence of business activities and tax compliance - The Tribunal concluded that the ROC could have pursued alternative measures rather than striking off the company. (Paras 4, 20)
Facts of the case:
The petitioner, an equity shareholder, filed for restoration of the company name after it was struck off for alleged non-operation. The company was involved in real estate and had ongoing projects, with evidence of tax filings confirming its active status despite non-filing of returns. (Paras 2-6)
Findings of Court:
The Tribunal found that the company was operational at the time of the strike-off and ordered the restoration of its name, subject to compliance with statutory requirements. (Paras 23, 25)
Issues: The main issues were whether the company was operational at the time of strike-off and if the ROC's action was justified based on the absence of statutory filings. (Paras 4, 18)
Ratio Decidendi: The Tribunal held that the company’s non-filing of returns does not equate to cessation of business, and the ROC's conclusion of non-operation was flawed due to the existence of operational evidence. (Paras 18, 20)
Result: The Company Petition No. 5 (MP) of 2024 stands allowed and disposed of, restoring the name of the company to the register. (Para 25)
| Table of Content |
|---|
| 1. petition for restoration of company name. (Para 1 , 2 , 3 , 4) |
| 2. circumstances leading to company strike-off. (Para 5 , 6 , 10) |
| 3. evidence of company's operational status. (Para 7 , 8 , 9 , 12 , 13) |
| 4. responses from roc and income tax department. (Para 14 , 15 , 17) |
| 5. court's analysis on operational status. (Para 18 , 19 , 20) |
| 6. justification for restoration of company. (Para 21 , 22 , 23) |
| 7. order for restoration and compliance requirements. (Para 24 , 25 , 26) |
ORDER
1. The present petition has been filed on 04.04.2024 by Mr. Chandra Shekhar Bajaj being the equity shareholder of Sainath Colonizers Private Limited (Company), under Section 252(3) of the Companies Act, 2013 (Act) against the order of striking off the name of the company, passed by the Respondent/RoC under Section 248 of the Act, issued vide bearing No. ROC-G/248(5)/2017/2949 published in the Official Gazette dated 14.06.2017 by Registrar of Companies, the respondent herein seeking the following reliefs:-
A. The Petitioner prays for the order of restoration of the name of the Company i.e., Sainath Colonizers Private Limited in the register of Companies maintained by the office of Registrar of Companies, Gwalior in the best interest of the Company and its Stakeholders; and
B. Such order by which the Registrar of Companies, Gwalior change the status of the Company from ’Strike off to ’Active’ so that the Company can comply with the due compliance and can able to file its Financial Statements and Annual Returns for all the preceding financial years; and
C. To give such directions and make such provisions as it deems fit which has the effect of putting the Company and all other persons in the same position as if the name of the Company had not been struck off from the register of companies; and D. Pass any other order or issue any other direction as may be necessary in terms of Secon 252(3) of the Companies Act, 2013.
2. It is stated that the Company, Sainath Colonizers Private Limited, was incorporated on 31.01.2008, under the Companies Act, 1956, with Corporate Identity Number (CIN) U45200MP2008PTC020268, as a private limited company. Its registered office was at 183, Ratnagiri, Raisen Road, Bhopal, Madhya Pradesh. The authorised and paid-up share capital of the Company was Rs. 5,00,000/- and Rs.1,00,000/- respectively.
3. The Company was established to engage in real estate development in the business of construction, reconstruction, and development of residential and commercial properties. The Petitioner submits that the Company was actively involved in managing and developing several projects, including a residential project named "Green Villa," comprising 45 bungalows, initiated in the financial year 2013-14. The project received a completion certificate prior to the enforcement of the Real Estate (Regulation and Development) Act, 2016 (RERA), and possession of several units was handed over to allottees, though some units remain unsold.
4. The Petitioner asserts that the Company remains operational, managing unsold units and related activities. However, the name of the Company was struck off from the register of companies by the ROC, Gwalior, under Section 248(1)(c) of the Act, on the ground that the Company had not carried on any business or operations for two immediately preceding financial years and had not applied for dormant status under Section 455 of the Act.
5. The ROC initiated the strike-off process by issuing a notice in Form STK-5 on March 10, 2017, inviting objections to the proposed action. No objections were received, and subsequently, the ROC struck off the Company‟s name, publishing a notice in Form STK-7 on June 14, 2017, in the Official Gazette.
6. The Petitioner avers that the fact of the strike-off came to his knowledge only when the Company‟s bank account was frozen, preventing transactions necessary for ongoing operations. Upon inquiry with the RoC, the Petitioner learned of the action taken under Section 248 of the Act. The Petit
