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Cs. Aruna Kannan      Company Law No Comments

Removal of Name / Winding Up of Companies

REMOVAL OF NAME FROM REGISTER OF COMPANIES

Section 248 of the Companies Act, 2013 was notified on 26/12/2016 replacing the FTE scheme prevalent under Companies Act 1956 for removal of name from register of companies. Registrar can strike off the name of a Company subject to the provisions of section 248 to 250 and The Companies (Removal of names of companies from the register of companies) Rules, 2016
According to Section 248 (1) where the Registrar has reasonable cause to believe that—
(a) a company has failed to commence its business within one year of its incorporation
(c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455
Aforementioned companies can strike off its name from register of companies. In case of company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application.
Registrar after processing the application shall publish, in the prescribed manner and also in the Official Gazette for the information of the general public and only at the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies,
The Registrar, before passing an order), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company.
Assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies.
In case of liability subsisting after strike off the liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved.
According to section 248 of Companies Act, 2013 , a Company cannot make application under section 248 if the Company at any time in previous 3 months has :-
249. (1) An application under sub-section (2) of section 248 on behalf of a company shall not be made if, at any time in the previous three months, the company—
(a)has changed its name or shifted its registered office from one State to another;
(b) has made a disposal for value of property or rights held by it, immediately before cesser of trade or otherwise carrying on of business, for the purpose of disposal for gain in the normal course of trading or otherwise carrying on of business;
(c)has engaged in any other activity except the one which is necessary or expedient for the purpose of making an application under that section, or deciding whether to do so or concluding the affairs of the company, or complying with any statutory requirement;
(d) has made an application to the Tribunal for the sanctioning of a compromise or arrangement and the matter has not been finally concluded; or
(e) being wound up under Chapter XX of this Act or under the Insolvency and Bankruptcy Code, 2016.
Following categories of companies shall not be removed from the register of companies under these provisions:
(i) listed companies;
(ii) companies that have been delisted due to non-compliance of listing regulations or listing agreement or any other statutory laws;
(iii) vanishing companies;
(iv) companies where inspection or investigation is ordered and being carried out or actions on such order are yet to be taken up or were completed but prosecutions arising out of such inspection or investigation are pending in the Court;
(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 or Inspector and reply thereto is pending or report under section 208 has not yet been submitted or follow up of instructions on report under section 208 is pending or where any prosecution arising out of such inquiry or scrutiny, if any, is pending with the Court;
(vi) companies against which any prosecution for an offence is pending in any court;
(vii) companies whose application for compounding is pending before the competent authority for compounding the offences committed by the company or any of its officers in default;
(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.
Fraudulent Application :
According to section 251 where it is found that an application by a company under sub-section (2) of section 248 has been made with the object of evading the liabilities of the company or with the intention to deceive the creditors or to defraud any other persons, the persons in charge of the management of the company shall, notwithstanding that the company has been notified as dissolved—
(a) be jointly and severally liable to any person or persons who had incurred loss or damage as a result of the company being notified as dissolved; and
(b) be punishable for fraud in the manner as provided in section 447.

PROCEDURE FOR REMOVAL OF NAME
1. The company shall pass Board Resolution approving application to be made under section 248, authorising one or more directors to sign application/ documents as required and to call for general meeting to get shareholder approval for the same.
2. The company shall fulfil all its liabilities.
3. Hold General meeting and get approval of 75% of the members for making such application.
4. File MGT-14 for special resolution passed in the General Meeting.
5. File application in form STK-2 with
a. Indemnity bond in form STK3 which is notarised by the Directors.
b. Statement of account made not more than 30 days before application duly certified by chartered accountant
c. Affidavit by all the directors of the company in form STK4.
d. Copy of the Special resolution passed in the General Meeting
e. Statement regarding pending litigation

APPEAL TO TRIBUNAL FOR RESTORATION OF NAME
According to section 252(1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:
Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned.
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.

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