In order to crackdown on the shell Companies which are allegedly used as conduits for illicit funds flows and tax evasion, the government have initiated the action against the non-working companies for striking off of all such Companies under Section 248(1) of the Companies Act, 2013
In the year 2017, names of 2,09,032 companies have been struck off from the register of companies under Section 248 (5) of the Act.
In the year 2018, notices were sent to show cause to around 31,250 Companies. Consequent to this, the ROC has struck off 24,280 Companies vide its notice dated 08.08.2018 from the Register of Companies.
Now the important question comes to our mind or in fact in the mind of Directors of those dissolved companies is How to Revive?
Well Provisions with regard to the Revival of Companies or restoration of Name of Companies are provided under Section 252 of the Companies Act, 2013 read with the National Company Law Tribunal (Amendment) Rules, 2017.
Section 252(3) of the Companies Act, 2013
If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies.
Rule 87A of National Company Law Tribunal (Amendment) Rules, 2017
(1) An appeal under sub-section (1) or an application under sub-section (3) of section 252, may be filed before the Tribunal in Form No. NCLT. 9, with such modifications as may be necessary.
(2) A copy of the appeal or application, shall be served on the Registrar and on such other persons as the Tribunal may direct, not less than fourteen days before the date fixed for hearing of the appeal or application, as the case may be.
(3) Upon hearing the appeal or the application or any adjourned hearing thereof, the Tribunal may pass appropriate order, as it deems fit.
(4) Where the Tribunal makes an order restoring the name of a company in the register of companies, the order shall direct that-
(a) The appellant or applicant shall deliver a certified copy to the Registrar of Companies within thirty days from the date of the order.
(b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette.
(c) The appellant or applicant do pay to the Registrar of Companies his costs of, and occasioned by, the appeal or application, unless the Tribunal directs otherwise.
(d)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.
(5) An application filed by the Registrar of Companies for restoration of name of a company in the register of companies under second proviso to sub-section (1) of section 252 shall be in Form No. NCLT 9 and upon hearing the application or any adjourned hearing thereof, the Tribunal may pass an appropriate order, as it deems fit.
Steps in Revival
An application / appeal shall be filed in Form No. 'NCLT - 9' with NCLT Bench having jurisdiction based on the Registered Office Address of the Company along with the following details and documents:
- Detailed reasons for such restoration along with the evidence and proofs.
- Affidavit verifying the petition in prescribed form duly notarized.
- Demand Draft for payment of fee of Rs. 1,000/- (Rupees One Thousand Only).
- Copy of MOA & AOA.
- Copy of Notice as issued by the concerned ROC for striking off of the Company.
- Copy of Board Resolution for restoration of Name.
- Authorization in favour of any director and appointment of Professional to appear on behalf of the Company.
- Memorandum of appearance with copy of the Board Resolution or the Vakalatnama, as the case may be.
- Latest audited financials.
- Proof of service of application on ROC.
- Any other documents in support of the case.
On getting the order for Restoration of the Name, Company shall file the copy of order with the concerned Registrar of Companies with in a period of 30 days from the date of the order in Form INC-28.
As per the directions of the NCLT the company shall file all pending financial statements and annual returns with the Registrar and comply with the requirements of the Companies Act, 2013. The Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette after restoration of the name of the Company in his records.
- The petition has to be filed in 3 copies in NCLT.
- A copy of the same shall be served on the Registrar of Companies, not less than 14 days before the date fixed for hearing of the application.
- The appellant would pay to the Registrar of Companies his costs of, and occasioned by, the appeal or application, unless the Tribunal directs otherwise.