Striking off the name of Company under Companies Act, 2013
1. Power of Registrar to remove the name of Company Section 248
On the basis on following that-
1. Company has failed to commence its business within one year from its incorporation.
2. Its not carrying on business or operation for a period of 2 immediately previous financial years and it has not made any application for obtaining the status of the Dormant Company-
Then Registrar shall sent a notice to the Company and to all the Directors of the company, of his intention to remove the name of the company from registrar of companies and requesting them to send their representation along with copies of the relevant documents, if any within a period of 30 days from the date of the notice,
3. In case of subscriber have not paid the subscription which they had undertaken to pay at time of the Incorporation and declaration to this effect has not been filed within 180 days of its incorporation under section 10A(1); or
4. The company is not carrying on any business, operations,
2. Application to ROC
Section 248(2) and Rule 4 of the Companies (Removal of name of Companies from the Register of Companies) Rules 2016
After extinguishment of all its liabilities, by SR or consent of 75% members in terms of paid-up share capital, The Company shall file an application to the Registrar in form STK-2 along with fees of Rs. 10,000 for striking off the name of the company from ROC on all or any of grounds specified and on receipt of such application Registrar cause a public notice in Form STK-5 & STK-6, as the case may be and be-
a. placed on the website of MCA;
b. Published in 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, which shall be in form STK-5A.
d. ROC also intimate to the Tax authorities and seek their objections.
Unless it has filed overdue AOC-4, AOC4-XBRL, MGT-7, to up the end of the financial year in which company ceased to carry on business, no application in STK-2 shall be filed by the Company.
Annexure to application
The Application (STK-2) shall be accompanied by indemnity bond duly notarized by the director in Form STK-3, STK-3A in case of Govt. Companies.
A statement of accounts in Form No. STK-8 not more than 30 days before the date of application and certified by the CA.
An affidavit in STK-4 by ever director of the Company;
A statement regarding pending litigation, if any.
3. Approval of Regulatory bodies in NOC form Proviso to section 248(2)
In case where a company registered under the Special Act, then approval of the regulatory body established under that act shall also be obtained. This NOC shall also attached with application
4. Non Applicability of Section 248(2) Section 248(3)
Section 8 Company
5. Publication of the Notice Section 248(4)
The notice issue under section 248(1), (2) shall be published in the official Gazette for information of general public.
6. ROC to remove the name of the Company Section 248(5)
After the time period mentioned in the notice, unless the contrary shown by Company, the Registrar strike off the name of the Company from register of companies and a Public notice for the same to be issued in such manner as may be prescribed, by the ROC.
7. Points to be considered by the ROC Section 248(6)
Before passing of any order under section 248(5), ROC shall consider the following factors and satisfy himself that sufficient provisions has been made for the realization of all amount due to the company and for payment of its liabilities and obligations by the Company within a reasonable time and if necessary, ROC shall obtain necessary undertakings from the MD, director or other persons in charge of the management of the company.
8. Proviso to section 248(6)
The asset 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 Register of the Company.
9. Liability of the Director Section 248(7)
Every Director, Manager, or other officer who exercising any power of management and every member of the company, shall continue and may be enforced as if the Company had not been dissolved.
10. Restriction on making application Section 249 (1)
The application under section 248 of the Company shall not be made;
If in the last three months;
a. Company has changed its name; or
b. Changed its registered office from one state to another state;
c. Disposal for value of property or rights held by it, immediately before cease of trade or otherwise for carrying on business;
d. an application has been made to the tribunal for sanctioning of a Compromise or arrangement and matter has not been finally disposed off. Or
e. Has wound up under the provisions of the Act or IBC code 2016;
11. Fine in case of contravention of section 249(1) Section 249(2)
Company shall be liable for fine which may extend to Rs. 1 Lakh.
12. Appeal to NCLT Section 252
1. Any person aggrieved by an order of the Registrar may make an application to the NCLT within a period of 3 years from the date of order.
2. If the NCLT is of the opinion that the removal of the name of the Company is not justified in view of absence of any grounds on which the order was passed by ROC, it may order the restoration of the name of the Company.
13. Proviso to Section 252(1)
Before passing any order the NCLT shall give a reasonable opportunity of being heard to the ROC, and the company and all the person concerned;
14. Application by ROC 2nd Proviso to section 252(1)
Where ROC is satisfied that the name of the company has been struck off from the Register of Companies on the basis of any false information furnished by the Company or its Directors, which requires restoration in Register of Company, then ROC may within a period of 3 years from the date of passing order under section 248, file an application to NCLT restoration of name of Company.
15. Copy of Order of NCLT to ROC Section 252(2)
Within 30 days from the receipt of order in Form INC-28.
16. Application by the stakeholders Section 252(3)
The NCLT on application made by Company, Members, creditors, or workman before the expiry of 21 years from the publication in the Gazette of notice under section 248(5), if satisfied that, at the time of its name being struck off, carrying of business, or in operation or otherwise it is just that the name of the company be restored to Register of Companies, may order the order the name of the company be restored to the Register of the Companies, and the NCLT may, by the order, give such other, give such other direction as deemed just for placing 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.