Striking off the Company under section 248 of the Companies Act is one of the easiest method for winding up.In this article author has tried to explain the procedure of strike off the company in FAQ manner  answering the question like What are the conditions under which the registrar can strike off the name of the company via giving notices, Mention the companies which cannot be removed from Registrar of companies, Manner to file an application to the registrar for removing the name of the company, Can Section 248 (2) of companies act, 2013 is applicable on section 8 company also, What are the conditions in which no application in Form No. STK-2 shall be filed by a company, Attachments to be attached alongwith the form STK – 2, Manner of filing of application, Who is eligible to certify the form STK – 2, Manner to publish the notice, To whom the registrar of companies have to give an intimation,  Manner of notarisation, appostilisation or consularisation of indemnity bond and  Notice of striking off and dissolution of company.

1 What are the conditions under which the registrar can strike off the name of the company via giving notices As per section 248 (1) of companies act, 2013 if the Registrar has reasonable cause to believe that

(a)  a company has failed to commence its business within one year of its incorporation

(b)  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 of the Companies Act,2013

or

he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice.

(c)  the subscribers to the memorandum have not paid the subscription which they had undertaken to pay at the time of incorporation of a company and a declaration to this effect has not been filed within 180 days of its incorporation under sub section (1) of section 10A

(d)  the company is not carrying on any business or operations, as revealed after the physical verification carried out under sub-section (9) of section 12.

The registrar shall send a notice in Form STK – 1 to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of 30 days from the date of the notice.

2 Mention the companies which cannot be removed from Registrar of companies. The following are the categories of companies which cannot be removed from the register of companies under this rule and rule 4, namely:-

(a)  listed companies;

(b)  companies that have been delisted due to non-compliance of listing regulations or listing agreement or any other statutory laws;

(c)  vanishing companies;

(d)  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;

(e)  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;

(f)   companies against which any prosecution for an offence is pending in any court;

(g)  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;

(h)  companies, which have accepted public deposits which are either outstanding or the company is in default in repayment of the same;

(i)  companies having charges which are pending for satisfaction; and

(j)  companies registered under section 25 of the Companies Act, 1956 or section 8 of the Act.

3 Manner to file an application to the registrar for removing the name of the company. As per section 248 (2) of companies act, 2013 a company may, after extinguishing all its liabilities, by a special resolution or consent of 75 % of. members in terms of paid-up share capital, file an application in the Form STK – 2 along with fee of Rs. 10,000 / – to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in sub-section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued.
4 Can Section 248 (2) of companies act, 2013 is applicable on section 8 company also. No, As per section 248 (3) of companies act, 2013 Section 248 (2) shall not apply to a company registered under section 8.
5 What are the conditions in which no application in Form No. STK-2 shall be filed by a company No application in Form No. STK-2 shall be filed by a company unless

  • it has filed overdue returns in Form No. AOC-4 (Financial Statement) or AOC-4 XBRL, as the case may be,
  • Form No. MGT-7 (Annual Return), up to the end of the financial year in which the company ceased to carry its business operations:

In case if the company intends to file Form No. STK-2 after the action under sub-section (1) of section 248 has been initiated by the Registrar, it shall file all pending overdue returns in Form No. AOC-4 (Financial Statement) or AOC-4 XBRL, as the case may be, and Form No. MGT-7 (Annual Return) before filing Form No. STK-2:

6 Attachments to be attached alongwith the form STK – 2 The application in Form STK 2 shall be accompanied by –

  • indemnity bond duly notarised by every director in Form STK 3
  • a statement of accounts in Form No. STK-8 containing assets and liabilities of the company made up to a day, not more than 30 days before the date of application and certified by a Chartered Accountant;
  • An affidavit in Form STK 4 by every director of the company;
  • a copy of the special resolution duly certified by each of the directors of the company or consent of 75 % of the members of the company in terms of paid up share capital as on the date of application;
  • a statement regarding pending litigations, if any, involving the company
7 Manner of filing of application (a)  The application in Form STK 2 shall be signed by a director duly authorised by the Board in their behalf.

(b)  Where the director concerned does not have a registered digital signature certificate, a physical copy of the form duly filled in shall be signed manually by the director duly authorised in that behalf and shall be attached with the form while uploading the form.

8 Who is eligible to certify the form STK – 2 The form shall be certified by

(a)  Chartered Accountant in whole time practice

(b)  Company Secretary in whole time Practice

(c)  Cost Accountant in whole time practice,

9 Manner to publish the notice The notice under sub-section (1) or sub-section (2) of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be –

(a)  placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard

(b)  published in the Official Gazette;

(c)  published in English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper, both having wide circulation in the State in which the registered office of the company is situated.

In case of any application made under sub-section (2) of section 248 of the Act, the company shall also place the application on its website, if any, till the disposal of the application.

[“Provided further that the publications of notice under clause (iii) of this sub-rule, in respect of cases falling under sub-section (1) of section 248 shall be in Form No. STK 5A”.]

10 To whom the registrar of companies have to give an intimation. The Registrar of Companies shall, simultaneously intimate the concerned

(a) regulatory authorities regulating the company

(b) the Income-tax  authorities,

(c)  central excise authorities and

(d) service-tax authorities  having jurisdiction over the company,

about the proposed action of removal or striking off the names of such companies and seek objections, if any, to be furnished within a period of 30 days from the date of issue of the letter of intimation and if no objections are received within 30 days from the respective authority, it shall be presumed that they have no objections to the proposed action of striking off or removal of name.

11 Manner of notarisation, appostilisation or consularisation of indemnity bond If the person is a foreign national or non-resident Indian, the indemnity bond, and declaration shall be notarised or appostilised or consularised.
12 Notice of striking off and dissolution of company The Registrar shall cause a notice under subsection (5) of section 248 of striking off the name of the company from the register of companies and its dissolution to be published in the Official Gazette in Form STK 7 and the same shall also be placed on the official website of the Ministry of Corporate Affairs.

*****

About Author: CS Richa Mittal, a workaholic in nature, is an associate member of the Institute of Company secretaries of India since 2016. She is an independent corporate consultant. She possesses good professional experience for more than 4 years in secretarial field. She likes to research over different topics and pen them down. Recently love to post all the upcoming notification and circulars to keep the viewers updated.

Disclaimer: The content of this article are for information purposes only and does not constitute advice or a legal opinion and are personal views of the author. It is based upon relevant law and/or facts available at that point of time and prepared with due accuracy & reliability. Readers are requested to check and refer to relevant provisions of statute, latest judicial pronouncements, circulars, clarifications etc. before acting on the basis of the above write up.  The possibility of other views on the subject matter cannot be ruled out. By the use of the said information, you agree that Author / TaxGuru is not responsible or liable in any manner for the authenticity, accuracy, completeness, errors or any kind of omissions in this piece of information for any action taken thereof. This is not any kind of advertisement or solicitation of work by a professional.

Author Bio

Qualification: CS
Company: Bhupesh Mittal & Associates
Location: Gurgaon, Haryana, IN
Member Since: 18 May 2020 | Total Posts: 4

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