REVIVAL OF COMPANIES STRUCK OFF CS. Devendra V Deshpande Practicing Company Secretary

History of striking off Section 560 of Companies Act, 1956 20 Years time High Court Application Cases where bulk Companies were struck off and revived Simplified Exit Scheme 2003 and Fast Track Exit Scheme 2011 Probable applicants – No apeal

INCOME TAX, CHARGE, PROSECUTION Present Situation ROC issued Notices for non filing via email upto 2015 STK 1 notice issued – 30 days given STK 5 Published – 30 days given STK 5A published – 30 days given STK 7 will be Published – Few ROC already issued INCOME TAX, CHARGE, PROSECUTION

VARIOUS REPLIES: Strike off Do not stike off we will file in some time Company is in operations Company has already filed Strike off with relevant documents No reply

Present Situation STK 2 is available STK 6 will be issued LLP Striking off is also notified with a simplified process by filing the last financial statement wherein Company did not carry any activity.

Section 248 Striking off By ROC: If it has a cause to believe Not operational since incorporation Not in operations for two Financial Years and not obtained dormant status under section 455 30 days notice with relevant documents 30 days Public Notice and official gazette 30 days Official Gazette – Dissolved

Section 248 Application can be made by obtaining a Special Resolution / consent of 75 % of shareholders Liabilities should be NIL Application in STK 2 and with annexures Notice by ROC – 30 days STK 6 Striking off by publication in official Gazette – Stands dissolved

Section 248 ROC shall before issuing final notice make sure that the assets are sufficient for paying of liabilities as well as relevant declarations are received from Directors etc Directors Liability continues Assets are available for disposal even after the dissolution NCLT may pass a order of winding up of struck off company.

248 – roc action can not be taken against i) listed companies; (ii) companies that have been delisted due to non-compliance (iii) vanishing companies; (iv) inspection or investigation is ordered and being carried out; (v) companies where notices under section 234 of the Companies Act, 1956 (1 of 1956) or section 206 or section 207 of the Act have been issued by the Registrar

248 – roc action can not be taken against (vi) companies against which any prosecution for an offence is pending in any court; (vii) companies whose application for compounding is pending (viii) companies, which have accepted public deposits which are either outstanding or the company is in default in repayment of the same; (ix) companies having charges which are pending for satisfaction; and (x) companies registered under section 25 of the Companies Act, 1956 or section 8 of the Act.

249 – Company can not go for striking off if If in last three months: Company has shifted registered office from one state to another Change of name Have disposed off majority of the assets Into merger / winding up / bankruptcy Violation penalty Rs. 1,00,000/-

250 – effect of striking off Dissolved Certificate of Incorporation is deemed to be cancelled Except for the realisation from assets and payment of obligations / liabilities. 251 – Fraudulent Application – 447

252 – VIMP 3 ROUTES POSSIBLE: Appeal in 3 years by any person – aggrieved and feels grounds were not justified Appeal by ROC within 3 years Application by a company, or any member or creditor or workman thereof feels aggrieved for restoration of name

252 - VIMP In appeal Fresh Certificate is issued In application – positions are restored In appeal one must prove grounds were not justified In application one must prove that the company was in operations / company was carrying on business / it is just and equitable to restore the name Appeal in 3 years Application in 20 years

Procedure NCLT 9 – APPLICATION with supportings Copy to ROC 14 days before hearing NCLT will pass: Order as it may deem fit Direct ROC to publish in official gazette about restoration Pay Cost File pending documents within prescribed time

Cases so far No order by Mumbai bench so far – 2 CASES FILED Principal Bench have heard few cases and usually decided as (APPLICATIONS UNDER 560 ORDER UNDER 252): 25000 cost to be paid to PMRF Liberty to ROC for taking action – Prerequisit - Filing in 8 weeks No compounding specified (High Court in almost all cases ordered compounding)

CS. Devendra Deshpande +91 – 9823239397 devendracs@gmail.com Thank You very much !!! CS. Devendra Deshpande +91 – 9823239397 devendracs@gmail.com