IN THE HIGH COURT OF JUDICATURE AT PATNA Company Petition No.6 of 2011 M/S Jihuli Constructions Pvt. Ltd., through its Director, Awadhesh Kumar Singh, Resident of Anandpuri- Belbanwa, Motihari, P.O. Motihari, P.S. Motihari Town, District- East Champaran (Motihari) Versus 1. The Union of India through the Registrar of Companies, Bihar & Jharkhand 2. The Registrar of Companies, Bihar & Jharkhand, Maurya Lok Complex, A Block, 4th Floor, Western Wing, Dakbunglow Road, Patna-800001, Bihar ---------- 6. 3.11.2011 Heard learned counsel for the petitioner and learned counsel for the Registrar of Companies. The petitioner has approached this Court for setting aside the Gazette notification dated 21.7.2007, at Sl. No. 8 of which the name of the company has been shown as one of the companies whose names have been struck off from the Register of Companies and for further consequential relief. The petitioner-company was incorporated on 6.11.2002. Admittedly since its incorporation it never filed any statutory return or other annual returns as required under the provisions of the Companies Act. The stand taken is that the same was due to negligence of the Auditor of the Company. Thereafter the Registrar of Companies treating the company as a defunct company took action under Section 560 of the Act and the name of the company has been struck off from the Register of Companies by the impugned Gazette 2 notification dated 21.7.2007. Learned counsel for the petitioner-company submits that the company has been carrying on its business continuously since its incorporation and in support of the same he has filed audited Balance Sheet and Profit and Loss Account of the company for the financial year ending 31.3.2010 and also the Income Tax Returns for the assessment years 2008-09 till 2010-11. Forms No. 16A showing deduction of tax at source under Section 203 of the Income Tax Act, 1961 for the year 2007-08 onwards have also been filed. It is submitted on the strength of the same by learned counsel for the petitioner-company that the company has been carrying on its business continuously since its incorporation and even now. It is further submitted by learned counsel for the petitioner-company that the provisions of Section 560 (1), (2) and (3) of the Companies Act has not been complied with by the Registrar of Companies before finally striking off the name of the company under Sub-Section (5) of the said Section. In the counter affidavit filed on behalf of the Registrar of Companies, it is stated that the action was taken against the present company along with similarly situated Companies which were not filing the returns for a number of 3 years and thus treating the company as a defunct company under Section 566 of the Companies Act and after complying with the due formalities the name of the company was struck off. It is however, the stand in the counter affidavit that if the petitioner-company satisfies the Court that it was carrying on its business at the time of its name being struck off then the Registrar of Companies has no objection if the name of the petitioner-company is ordered to be restored to the Register of Companies provided the necessary statutory Returns and other Annual Returns are filed along with requisite fees and additional fees in accordance with the provisions of the Act and the Rules. On a consideration of the materials on the record it is evident that this is a case where the company has failed to comply with the statutory provisions of filing statutory Returns as also the Annual Returns and other documents in terms of the provisions of the Companies Act right since its inception. However, from the other materials on the record there appears to be sufficient force in the submission of learned counsel for the petitioner that as a matter of fact, the company has been carrying on its business at least in the year when its name was struck off and continuously thereafter. Taking into consideration the aforesaid facts, this Court is of the view that the name of the company ought to 4 be restored to the Register of Companies. It is accordingly ordered, subject to the petitioner-company complying with the requirements of the Companies Act regarding filing of the different returns along with fees and additional fees within a period of two months from today. Since there has been default by the company from its very inception in complying with the provisions of the Companies Act, it would be open to the Registrar of Companies to take appropriate action under Section 162 of the Companies Act against the concerned Officers and Directors of the Company. The application is accordingly allowed with cost payable to the Registrar of Companies quantified at Rs. 15,000/- (Rupees fifteen thousand). S.Pandey (Ramesh Kumar Datta, J.)