Life always started to death. Company can be created and wind up. Sometimes, Idea of a company conceives, but fail to take life.
MCA issued a Notification dated 26th December, 2016 notifying Section 248, 249, 250, 251 and 252 of Companies Act, 2013, deals with the powers of ROC to remove the name of company from Register of Companies and procedure of restoring the same.
In this Article we going to brief you the related provisions of companies act 2013.
Manner of removal of name
- By Registrar of Companies on suo-moto basis.
- By Application of Company for removal of the name.
On Suo-moto basis.
- A Company has failed to commence its business within one year of its incorporation or
- A Company is not carrying on any business or operation for a period of two immediately preceding financial years.
Application by Company
File an application in form SK-2 (after extinguishing all its liabilities, by a special resolution or consent of seventy-five percent members) on the basis of grounds listed above.
Restriction on making application by Company
An application by the company shall not made if in the previous three months, the Company –
- has changed its name or shifted its registered office from one state to another
- 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 otherwise carrying on of business
- has engaged in any other activity except the one which is necessary or expedient for the purpose of making an application under that section.
- has made an application to the Tribunal for the sanctioning of a compromise or arrangement and the matter has not been finally concluded.
- is being wound up under the Chapter XX, whether voluntarily or by the Tribunal.
Effect of company notified as dissolved (Section 250):
Where a company stands dissolved under section 248 of The Companies Act, 2013, it shall on and from the date mentioned in the notice cease to operate as company and the certificate of incorporation issued to it shall be deemed to have been cancelled.
Application to Tribunal for Restoration
- Any person aggrieved by an order of the Registrar, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar.
- 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 ground. it may order restoration of the name of the company in the register of companies.
- The Tribunal shall give a reasonable opportunity for making representation to both the parties and all the persons concerned.
- If Registrar is satisfied that the name of the company has been struck off from the register either inadvertently or in the basis of incorrect information, he may within a period of three years may file an application before seeking restoration of such company.
Filling order to ROC
Copy of the order passed by the Tribunal shall be filed by with the Registrar within thirty days from the date of the order.
On receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation.
Hence, there is lot of clarity and strictness in the new procedures for removal of the name of companies from Register of Companies maintained by Registrar of Companies. This will lead to more transparency, accountability and governance in implementing the entire process of removal and restoring of names of companies.