Revival of 'Struck Off' Companies under Companies Act, 2013
The struck-off companies are those companies which have been removed from the Register of Companies by the concerned Registrar of Companies (ROC). The Section 248 of the Companies Act of 2013, gives the Registrar the authority to strike off the defunct or defaulting companies from the Register of Companies, including the companies which have not done their statutory filings for 2 years or more. The reasons for removal of a company from the Register of Companies may be diverse or numerous; the following are some of the most common or cogent reasons for striking off:
- Failure to start business/service within one year of incorporation.
- Failure to carry on any business or operation for two immediately preceding financial years.
- Non-receipt of the financial statements and annual returns for a continuous period of three years.
- Failure in filing the Form DIR-8 by the company Directors
- And, non-compliance under the relevant provisions and rules associated with the Companies Act of 2013, and other concerned legal Acts and Statutes.
The Ministry of Corporate Affairs (MCA), Government of India, has recently (by June 2017) removed over one Lakh defunct or defaulting companies from the Register of Companies in India. Hence, making strict and perfect compliances under all rules and regulations concerned, has now become inevitable. This webpage offers very informative and useful information about revival of 'struck off' companies under companies act, 2013, to help the concerned companies of all types located in entire India. The Section 252 of the Indian Companies Act of 2013 contains provisions about the restoration of the name of a struck off company, through help of the NCLT (National Company Law Tribunal). The entire revival process of the name of a struck-off company under companies act, 2013, is being described separately under the section below.
Revival Process of the Name of A Struck-off Company under Companies Act, 2013
Any aggrieved company (which has been struck off from the register of companies) may file an appeal/petition to the NCLT within a period of three years from the date of the order of the relevant Registrar, for restoring the company into the Register of companies in India. Any responsible member or creditor of the removed company may also apply to the Tribunal for initiation of the revival process. However, as per Section 252 (3) of the Act, an appeal or petition to the NCLT seeking restoration of the name of the removed company, may be filed within a period of 20 years counted from the date of publication of the removal notice in the official Gazette. The various steps/tasks involved in the entire restoration process are the following:
A. Filing an Application/Appeal before the NCLT
The application for restoration of the struck off company, is to be filed with the NCLT in the Form No. NCLT-9, in accordance with the Section 252(1) of the Companies Act of 2013, and the Rule 87A of the NCLT (Amendment) Rules, 2017. After submitting the original copy of the application/petition to the NCLT, serve a copy of the same to the relevant ROC and the Income Tax Department, and any other person(s) as directed by the NCLT, at least 14 days before the fixed date of hearing over the filed appeal/petition.The petition or appeal must contain sufficient and convincing grounds in favor of revival of the struck off company, repudiating the claims of the ROC. The following pieces of information/documents are to be attached with the petition:
- Certified copies of the MOA and AOA of the company
- List of the Directors of the company
- Certified True Copy (CTC) of the Registrar's Order for removal
- Signed Balance Sheets of the company
- CTC of the Board Resolution passed in favor of restoration
- Appeal against Registrar's Order
- Affidavit verifying the petition
- Copy of the Bank Draft evidencing payment of the prescribed application fee [Rs. 2500/-, at present]
- Memorandum of Appearance
- And, other documents in support of restoration/revival of the company.
- B. Service of Application/Appeal
After hearing from the applicant, the concerned ROC, and any other associated, on the fixed date of hearing at the NCLT, the NCLT may order restoration of the name of the removed company in the Register of Companies after being satisfied in the Form No. INC-28.
- C. Importance and Impact of Tribunal's Order
- The appellant has then to deliver the certified copy of the Tribunal's Order to the concerned Registrar within Thirty days of passing of the same.
- On receipt of the Tribunal's Order for restoration, the Registrar shall publish the Order in the official Gazette in his official name and seal.
- All costs of the proceedings are to be borne by the applicant/appellant.
- Then, the appellant is required to file all overdue Financial Statements and Annual Returns with the ROC within the period directed by the NCLT.
- Finally, the ROC will change the status of the company from 'Struck Off' to 'Active', issuing a fresh certificate of incorporation to the company.