RESTORATION/REVIVAL OF NAME OF COMPANY STRIKED OFF UNDER SECTION 248 OF THE COMPANIES ACT, 2013

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.