1. ROC has the power to remove the name of companies from Register of Companies under Section 248 of The Companies Act, 2013.

ROC can issue notice for strike off of name of companies on following reasons/ causes:

 

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

(b) The subscribers to the memorandum have not paid the subscription which they

had undertaken to pay within a period of one hundred and eighty (180) days from the date of incorporation of a company and a declaration under section 11(1) to this effect has not been filed within one hundred eighty (180) days 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 of 455.

 

 

Restrictions on making application under section 248 in certain situations: –

(Section 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) is being wound up under Chapter XX, whether voluntarily or by the tribunal.

 

(2) If a company files an application under sub-section (2) of section 248 in violation of sub-section (1), it shall be punishable with fine which may extend to one lakh rupees.

 

(3) An application filed under sub-section (2) of section 248 shall be withdrawn by the company or rejected by the Registrar as soon as conditions under sub-section (1) are brought to his notice.

 

2. ROC 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, against the proposed action within a period of thirty (30) days from the date of notice (as per section 248(1)).

 

3. A company may after extinguishing all its liabilities, by a special resolution or consent of seventy five (75%) per cent. Members in terms of paid-up share capital, file an application in the prescribed manner i.e. STK-2 along with the fee of five thousand

(Rs. 5000) to the registrar (ROC) for removing the name of the company from the register of companies on all or any of the ground specified in sub-section (1) and the registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner (as per section 248(1) read with rule 4.

 

 

4. Undertaking by Directors: Discharge of liability

The registrar, if feels necessary, obtains necessary undertakings from the managing

director, director or other persons in charge of the management of the company that sufficient provision(s) has been made for the realization of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company.

 

 

5. Issue Notice of Striking off and Dissolution of Companies:-

The registrar (ROC) shall cause a notice under sub-section (5) of section 248 of striking off the name of the company from the register of companies if no objections received 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 (as per rule 9).

 

6. Fraudulent Application for Removal of Name:-

 

As per section 251(1), where it is found that an application by a company under subsection (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, be–

 

(a) 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) punishable for fraud in the manner as provided in section 447.

 

As per section 251(2), without prejudice to the provisions contained in sub-section (1), the Registrar may also recommend prosecution of the persons responsible for the filing of an application under Sub-section (2) of section 248.

 

8. Appeal to Tribunal:-

Any person aggrieved by an order of the registrar, notifying a company as dissolved

under section 248, may file an appeal to the tribunal (NCLT) within a period of three years (3 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.

 

 

 

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