Strike Off of Company- Regulatory & Procedural Aspect

PROJECT REPORT ON STRIKE OFF THE NAME OF COMPANY

Strike Off means removing the name of the Company from the Register of Companies maintained by Registrar of Companies. Section 248 of Companies Act, 2013 consists of the provision relating to strike off the name of the Company. Now there are two modes of Strike off name of the Company:

Section 248(1) of the Companies Act, 2013 states that where the Registrar has reasonable cause to believe that:

a) Company has not commenced its Business within one year of its incorporation

b) company is not carrying on any business or operation for a period of two immediately preceding financial years and the Company has not made any application for obtaining the status of Dormant Company

c) Subscriber to the MOA has no paid the the subscription and INC-20A has not been filed within 180 days of incorporation of Company

d) Registrar has carried out verification of Registered office (12[9] of Companies Act, 2013) of the Company and has found that company is not carrying on any business or operations

And when the aforesaid ground exist the Registrar may issue notice to all the Directors of the Company in Form STK-1 mentioning therein his intention to remove the name of the Company, the reason for the removal and allowing the directors to file the Reply within a period of 30 days from the date of notice.

It is further stated that that the following class of Companies shall not be removed from the register of companies under Suo Motu basis i.e, 248(1)

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.

Section 248 (2) states that Company may on its own by extinguishing all its liabilities by passing Special Resolution, may make an application to the Registrar of Companies in Form STK-2. Provided that the no such Form shall be filed unless AOC-4, AOC-4 XBRL and MGT-7 has been filed by the Company up to the end of the financial year in which the company ceased to carry its business operations.

Provided further that once the notice is issued under STK-7 under Section 248(1), the Company shall not be allowed to make an application under Section 248(2)

Provided also that if the Company is regulated by the Separate Regulatory Authority like RBI, SEBI then NOC from such Regulatory Authority should also be Annexed with the Application under 248(2.

The following documents should also be annexed with the e-form STK-2:

a) indemnity bond duly notarised by every director in Form STK 3, Format Attached

b) a statement of accounts 2[in Form No. STK-8]containing assets and liabilities of the company made up to a day, not more than thirty days before the date of application and certified by a Chartered Accountant, Format Attached

c) An affidavit duly notarised in Form STK 4 by every director of the company, Format Attached

d) a copy of the special resolution duly certified by each of the directors of the company, Format Attached

e) a statement regarding pending litigations, if any, involving the company, Format Attached

f) Notice of EGM along with Explanatory Statement, Format Attached

Once the aforesaid Form is filed then Registrar will issue Notice in Form No. STK-6 and in STK-5 in case of Section 248(1) and placed on its MCA website, publish it in Official Gazette and English Newspaper and one Vernacular Language newspaper. Further the Registrar will inform the other concerned regulatory authorities and seek objections within a period of 30 days.

Once the aforesaid procedure is followed Registrar will issue 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.

The draft of the aforesaid Documents is as Follows:

1. BOARD RESOLUTION

CERTIFIED TRUE COPY OF THE RESOLUTION PASSED AT THE MEETING OF BOARD OF DIRECTORS OF THE ____________________________PRIVATE LIMITED HELD ON__________, 8TH ____________2021 AT ITS REGISTERED OFFICE AT ___________________AT ___________P.M

STRIKING OFF THE NAME OF COMPANY UNDER SECTION 248(2) OF COMPANIES ACT, 2013

“RESOLVED THAT pursuant to the provisions of Section 248 of the Companies Act, 2013 (including any amendments thereto or re-enactment thereof) (the “Act”) read with rule 4 and 5 of the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016 (the “Rules”) and subject to such other approvals, permissions and sanctions, as may be required under the provisions of the said Act or under any other law for the time being in force the consent of Board of Directors be and hereby accorded to make an application to the Registrar of Companies, Delhi under the provisions of section 248 of Companies Act, 2013 for striking off the name of the Company from the Register of Companies, Delhi.

RESOLVED FURTHER THAT Directors of the Company be and is hereby severally authorised to make an application and to give necessary affidavits and indemnity bond under section 248 of Companies Act, 2013, as per the draft of the same as placed before the meeting duly initialed by the Chairman for the purpose of identification in order to get the name of Company struck off from the Register of Companies maintained by the Registrar.

RESOLVED FURTHER THAT notice of Extra-ordinary General Meeting of members of the Company as placed before the Board, be and is hereby approved.

RESOLVED FURTHER THAT all the Directors of the Company be and is hereby severally authorised to file requisite e-form with the Registrar of Companies, Delhi for striking off the name of the Company from the Register of Companies.

RESOLVED FURTHER THAT Directors of the Company be and is hereby severally authorized to sign and give any information, clarifications , explanations and to do all such acts and deeds as may be required under the Act, to implement the above said resolutions.”

2. SPECIAL RESOLUTION

CERTIFIED TRUE COPY OF THE RESOLUTION PASSED AT THE EXTRAORDINARY GENERAL MEETING OF MEMBERS OF THE _________________ PRIVATE LIMITED HELD ON_________, 5TH __________2021 AT ITS REGISTERED OFFICE AT __________________ AT _____________P.M

STRIKING OFF THE NAME OF COMPANY UNDER SECTION 248(2) OF COMPANIES ACT, 2013

RESOLVED THAT the consent of the members of the Company be and is hereby accorded to the Board of directors to make an application to the Registrar of Companies, Delhi under the provisions of Section 248(2) of the Companies Act, 2013 for striking off the name of the Company from the Register of Company and the Board of directors of the Company be and is hereby authorised to do all such, matters, deeds and things as may be required under the provisions of the Companies Act, 2013 and the rules made there under.

RESOLVED FURTHER THAT any director of the Company be and is hereby severally authorized to do all necessary acts, deeds, things necessary and incidental thereto to give effect to the above resolution.”

3. STATEMENT OF ACCOUNTS_STK-8

Form No. STK-8

[See rule 4(3)(ii)]

Statement of Account

Name of the Company: __________PRIVATE LIMITED

CIN :

Statement of Account as on date:

PARTICULARS: (Brief Break up in respect of each item need to be given)  Amount (Rs.)

I. Sources of Funds

(1) Capital ……….

(2) Reserves & Surplus(Including balance in Profit and Loss Account) ……

(3) Loan Funds

Secured loans from Financial Institutions ………..

Secured loans from Banks …..

Secured loans from Govt. ………

Other Secured loans ………

Debentures ……….

Unsecured Loans ……

Deposits & interest thereon …..

Total Loan Funds ….

Total of (1) to (3) …….

II. Application of Funds

(1) Fixed Assets ….

(2) Investments …..

(3) (i) Current Assets, loans and Advances ……

Less: (ii) Current Liabilities & provisions

Creditors ……..

Unpaid Dividend …….

Payables …………

Others ……..

Total Current Liabilities & Provisions ……..

Net Current Assets (i-ii) ……..

(4) Miscellaneous expenditure to the extent not written off or adjusted …..

(5) Profit & Loss Account (Debit Balance) ……..

Total of 1 to 5 ……..

Date:

Place:

Certified & Verified by
For ______________________
Chartered Accountants
Firm Reg. No. ______________

____________
PARTNER
FCA –__________

4. AFFIDAVIT_STK-4

FORM No. STK -4

AFFIDAVIT

[Pursuant to sub section (2) of section 248 read with clause (iii) of sub-rule (3) of Rule 4]

—————————————————————-

1. I, ____________, Director of _______________PRIVATE LIMITED (hereinafter called “the Company”), incorporated on ____________under the Companies Act, _________having its registered office at _______________ and having CIN _____________do solemnly affirm and state as under:

(i) I, _______________, S/o Shri ______________Holder of DIN _______________ am Director of the Company stated above since_____________.

(ii) My present residential address is __________________________(copy of documentary evidence duly attested by a whole time practicing Company Secretary) is enclosed.

(iii) My permanent address is ________________(copy of documentary evidence duly attested by a whole time practicing Company Secretary) is enclosed.

(iv) The Company does not maintain any bank account as on date.

(v) The Company does not have any assets and liabilities as on date.

(vi) The Company commenced business/operations/commercial activity after incorporation but has been inoperative for the past One year as the Company doesn’t have any revenue generating business as it could not find adequate business opportunities in the market.

(vii) As on date, the Company does not have any dues towards Income Tax/Sales Tax/Central Excise/Banks and Financial Institutions; and other Central or State Government Departments/Authorities or any Local Authorities.

2. I further affirm that –

(i) No inquiry, technical scrutiny, inspection or investigation is ordered or pending against the company;

(ii) No prosecution or any compounding application for any offence under the Act or under any of the other Acts is pending against the company or against the undersigned;

(iii) The company is neither listed nor delisted for non-compliance of listing agreement;

(iv) The company is not a company incorporated for charitable purposes under section 8 of the Companies Act, 2013;

(v) The company does not have any management disputes or there is no litigation pending with regard to management or shareholding of the company;

(vi) No order is in operation staying filing of the documents by a court or tribunal or any other competent authority;

(vii) The company is not prevented from making the applications for strike off as mentioned in section 249 of the Act.

I solemnly state that the contents of this affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false

Signature:
____________
(Deponent)

Verification:-

I verify that the contents of this affidavit are true to the best of my knowledge and belief.

Signature:
____________
(Deponent

Date: ___________
Place: __________

5. INDEMNITY BOND_STK-3

Form No. STK-3

INDEMNITY BOND

[Pursuant to clause (i) of sub-rule (3) of rule 4 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016]

To,
The Registrar of Companies

Delhi

1. I, ___________, the Director of M/s _____________Private Limited a company incorporated on __________under Companies Act, 2013 having its Registered Office at 10, Babar Road New Delhi 110001 do hereby declare that:

i. I, __________S/o Sh._____________, am the Director of this Company.

ii. That I have made an affidavit confirming that the Company does not have any assets and liabilities as on date.

iii. Further the Company commenced business/operations/commercial activity after incorporation but has been inoperative for the past one year. Thus the Company is defunct and I request the Registrar of Companies, Delhi to strike off the name of the Company from the register of companies under Section 248 of the Companies Act, 2013.

2. I do hereby undertake to indemnify:

i. to the claimants for all lawful claims against the company arising in future after the striking off the name of the Company.

ii. to any person for any losses that may arise pursuant to striking off the name of the Company.

iii. the claimants for all lawful claims and liabilities, which have not come to our notice up to this stage, and if any claim arises or observed even after the name of the Company has been struck off in terms of Section 248 of the Companies Act, 2013.

Place: ______
Date: _______

Signature:
Name:
Father’s Name:
Address:

Witnesses:

1. Name:
Father’s name:
Address:
Occupation:

Signature:

2. Name:
Father’s name:
Address:
Occupation:

Signature

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