NCLT sets aside the order of the ROC, West Bengal to strike off the name of Respondent Company due to non-compliance with section 248(6) by the ROC, West Bengal; orders reinstatement of the name of the Respondent Company in the Register of Companies.
The present appeal under section 252 (3) of the Companies Act, 2013 is filed by the Income Tax Officer Ward-11(2), Kolkata (Appellant) in the capacity of a creditor of the Tenet Commerce Private Limited (Respondent no.2/Struck-off Company), restoration of the name of the said Company in the Register of Companies, West Bengal. Appellant states that ROC West Bengal published a notice in pursuance of section 248(5) of the Companies Act, 2013 by which it has struck off the name of Respondent no. 2 company from the Register of Companies and the said Company was dissolved w.e.f. 09.06.2017. Appellant further states that the Respondent no.2 company has not paid Income Tax dues of Rs. 7,73,660/-for the Assessment year 2012-13 and the recovery proceedings are pending against the Stuck-off Company and proceedings under section 147 of the Income Tax Act is also pending against the Struck-off Company for the Assessment Year 2011-12. Appellant filed the present application for restoration of name of the Struck-off Company to the ROC, West Bengal in order to protect the legitimate interest of the Revenue and being the aggrieved creditor for its pending Income Tax proceedings.
NCLT observes that the ROC, West Bengal in its report states that Struck-off Company has not filed its Balance Sheets and Annual Reports since the Financial Year ending 31.03.2014 with the office of the Respondent 1, so it was struck off on 09.06.2017 after complying with the provisions of section 248 of the Companies Act, 2013 as it had reasonable cause to believe that the Company was not carrying on any business or operation for the last three years. In accordance with the provisions of the Companies Act, 2013 for want of production of proof that the was in operation after issuing notices, as there was no response from the side of the Company , the ROC, West Bengal presumed that the Company was not doing any business and hence struck off its name. However, liabilities of the Company in the form of pending Income Tax dues do not appear to be sufficiently provided for before passing an order under section 248(5). NCLT examines the provisions of section 248(6) which provides that –
“ (6) the Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of all its liabilities and obligations by the company within a reasonable time, and if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies.”
NCLT notes that the provisions of section 248(6) of the Companies Act, 2013 have not been complied with while passing an order of striking off the name of the Struck-off Company. NCLT observes an irregularity and illegality in the order passed by the ROC, West Bengal. Hence, NCLT allows the application and orders the ROC, West Bengal to restore the original status of the Struck-off Company as if the name of the Company had not been struck off from the Register of Companies, with resultant and consequential actions like changing the status of the Company from “Strike off” to “Active”. NCLT adds that the order is confined to the violations, which ultimately leads to the impugned action of striking off the Company, and it will not come in the way of the ROC to appropriate action(s) in accordance with law for any other offence/violation, if any, committed by the Company prior or during the striking off of the Company.