Dear Professionals,
Can you please share me the procedure of Retrieval of Name from ROC.
The strikeoff date is 29.04.2008
🌴 CODS SCHEME
*December, 2017, the government gave one- time opportunity to the defaulting companies and their directors who were disqualified few months back by introducing the Condonation of Delay Scheme, 2018* and permitting them to comply with statutory filing requirements by temporarily activating the DIN of disqualified directors.
🥌However, as of now the said scheme is not available to struck off companies.
🎈If the struck-off companies or their directors want to avail the benefit of this scheme, then they will have to first obtain a restoration order from the tribunal by following the statutory process explained in this article.
🍫After this massive striking-off of the names of the companies from statutory registers, various companies had approached the tribunal for restoration of its name.
🍸NCLT REQUIREMENTS OF DOCUMENTS
In order to establish that a company is carrying out bona fide business operations, Tribunal (NCLT) has appreciated evidence in the form of:
(i) details of salary payments to its employees;
(ii) provision of services to its clientele and receiving payments thereof;
(iii) availing services from various agencies;
(iv) lease documents for office space for running its operation;
(v) reflection of assets in its books of accounts;
(vi) reflection of turnover in its books of accounts;
(vii) income tax/ service tax filings;
(viii) purchase orders;
(ix) bank statements;
(x) TDS returns;
(xi) software installation certificate;
(xii) electricity bill, etc.
🍂 It is pertinent to mention that the above factors may not work on a standalone basis but a combination of them which satisfies the Tribunal of existence of operations of the company are being taken into account
💋 ONUS ON COMPANY TO PROVE BONAFIDE INTENSIONS
While dealing with these cases, the tribunals have allowed restoration of the company where the company has been able to establish and satisfy the tribunal that
- it was at the time of its name being struck off, carrying on business (or was in operation)
and
- have only missed out on filing the annual returns and balance sheets with the registrars and the same was a serious lapse on the part of the companies which resulted in triggering of the whole process. Accordingly, the tribunals have also levied fines on such companies, along with the restoration order.
🍬 FINES
While ordering *restoration of the name of the company, in many a cases, the tribunal has also, acknowledged* that there was no reasonable explanation as to why these companies have not filed its annual returns and balance sheets before the registrars and the same was a serious lapse on the part of the companies which resulted in triggering of the whole process.
🍹Accordingly, the tribunals have also levied *fines* on such companies, along with the restoration order
🥝In addition to levying fines, in certain cases, the tribunal has also made the restoration order conditional upon the company filing all the pending statutory returns along with the fees as required under the Companies Act, filing of all the income tax returns.
🍬 IN CASES WHERE BANK ACCOUNTS ARE FROZEN
Further, in cases where the bank accounts of the company were frozen by the department of financial services, the tribunal has ordered that the company would be entitled to operate its, *bank account* only after obtaining clearance from the department.
👞The tribunal seems very particular about the documentation and information provided by the applicant companies as part of its restoration application so that the government’s crackdown on shell companies is not jeopardized by allowing revival of non-operative companies.
☂ After ORDER OF NCLT
Upon obtaining the restoration order and undertaking certain procedural reporting formalities, the registrar will restore the name of the company on the register of the companies and also issue a fresh certificate of incorporation.
🚿Thereafter, the company would be deemed to have come back on the register as if it was never struck off. The restoration, as and when it happens shall be reflected by change in the status of the company from ‘struck off’ to ‘active’.
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