RESTORATION/REVIVAL OF
THE NAME OF THE COMPANY
There were a lot of companies who
did not file their financial statements and Annual Return for many years and in
some cases since its incorporation. And for Registrar of Companies, this is
reasonable cause to believe that those companies are inactive.
As per Section 248(1) of the
Companies Act, 2013, If Registrar has reasonable cause to believe that:
1. A
company has failed to commence its business within one year of its
incorporation, or
2. A
company is not carrying on any business or operation for a period of 2
immediately preceding financial years,
Shall send the notice to the
company and its directors for striking off the name of the company from
register of companies and requesting them to send representation along with the
relevant documents within a period of 30 days from the date of notice.
If no such representation is
received or after expiry of the period of 30 days, ROC shall strike off the
name of company from the register of companies and publish notice in the
official gazette.
However, a lot of Companies name
were strike off from the register of companies as per section 248 of the
Companies Act, 2013.
But the name of the company can be restored in the register of
companies. As per section 252 of the Companies Act, 2013, an application or
appeal can be filed to the National Company Law Tribunal (NCLT) for restoring
the name of the company in manner prescribed below.
WHO CAN FILE APPLICATION OR APPEAL FOR RESTORING THE NAME OF THE
COMPANY
1.
A
COMPANY, MEMBER, CREDITOR OR WORKMEN – application within 20 years from the
date of publication in the Official Gazette of notice of strike off the name of
the Company under section 248 (5) of the Companies Act, 2013.
Reason to restore the Company: Company
was in operation or carrying on its business or such other justified or valid
reasons.
The Tribunal, if
satisfied, may order the name of Company to be restored to the Registrar of
Companies or give such other direction as it deems fit.
2.
ANY
PERSON: Appeal to Tribunal within 3 years from the date of order of ROC.
If the Tribunal
is of the opinion that the removal of the name of the company from the register
of companies is not justified in view of the absence or lack of any grounds on
which the order was passed by the registrar, it may order restoration of the
name of the company in the register of companies.
But before
passing the order, an opportunity of making representation and of being heard
shall be given to the ROC, the Company and all other person concerned.
3.
THE
REGISTRAR: If the registrar is satisfied, that the name of the company has
been struck off from the register of companies either inadvertently or on the
basis of incorrect information furnished by the company or its directors, may
file an application before the Tribunal seeking restoration of name of such
company within 3 years from the date of passing of the order of dissolving the
company under section 248 of the Companies Act, 2013.
FILING OF COPY OF ORDER OF TRIBUNAL TO ROC: Within 30 days
from the date of the order.
After filing the order of
Tribunal to ROC, the ROC shall restore the name of the company in the register
of Companies and shall issue a fresh Certificate of Incorporation.
PROCEDURE:
1. An
Application or Appeal shall be filed to the Tribunal in Form NCLT-9.
2. A
copy of Appeal or Application shall be served to ROC and such other persons as
the Tribunal may direct not less than 14 days before the date fixed of hearing.
3. In
hearing the Tribunal may pass appropriate order as it deems fit.
4. Where
the Tribunal makes an order for restoring the name of the company in the
register of companies, the order shall be filed to the ROC within 30 days for
the date of the order in Form INC-28 along with the prescribed fees.
5. The
Registrar of Companies publish the order in the Official Gazette in his
official name and seal.
6. The
applicant or appellant do pay to the ROC his costs of, and occasioned by, the
appeal or application, unless the Tribunal directs otherwise.
7. The
Company shall file pending financial statements and annual returns with the
Registrar and comply with the requirements of the Companies Act, 2013 and rules
made there under within such time as may be directed by the Tribunal.
List of documents to be attached with Petition or Application:
1. MOA
and AOA of the Company
2. List
of Directors
3. List
of Shareholders
4. Copy
of Notice of Striking off the name of the Company
5. Affidavit
verifying the petition in Form NCLT-6
6. Bank
Draft evidence regarding payment of Fee
7. Memorandum
of Appearance in form NCLT-12 with copy of Board Resolution or the Vakalatnama,
as the case may be.
8. Last
three years Audited financial statements
9. Evidence
that company was carrying on its business. Prepare a file of the transactions
company have done in previous one year including bank statement, Bills or
invoices.
10. Any
other document in support of the case.
11. Prepare
three copies of Petition or Application.
CONCLUSION:
Before filing an application or
appeal to the Tribunal, make sure that company should have proper documentary
proof to prove that the company was in actually active and was carrying on its
business activity.
Contact Details:
VISHAL SHARMA
Company Secretary
Mob: 9716763754
Email: csvishalpbs@gmail.com
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Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
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