Strike Off provides an opportunity to Defunct Company get their name struck off from the Register of Company (ROC).
There are 2 Modes of Striking off:
By ROC itself under Section 248(1) of Companies Act 2013; and
By way of filing an application by Company under Section 248(2) of Companies Act 2013.
Section 248(2) - Strike off By ROC Suo Moto:
ROC may remove the name of the company on following grounds :
A Company has failed to Commence its Business within 1 Year of incorporation; or/and
A Company is not carrying on Business from preceding 2 Financial Year and has not sought the status of Dormant Company under Section 455.
Procedure to be followed by ROC for Striking off:
A. Serving of Notice:ROC Shall Send Notice in Form No STK -1 to Company and all the Directors containing the reason for removal of Name of Company. B. Representation of Company: Company shall send representation within 30 days from the Date of Notice.
ROC Shall consider the representation of Company
If ROC Is Not Satisfied then it may proceed with Striking off of Name of Company
C. Publish of Notice: Notice of Removal off Name in Form No STK-5 is published on the:
a) Official website of MCA
b) Official Gazette
c) English and one vernacular language Newspaper at a place where the registered office of Company is situated.
D. Intimation to regulatory Authorities:ROC Shall inform other regulatory authorities regulating the Company and seek objection (if any) to be furnished within 30 Days of Notice. E. Strike off the Name and Publish Notice of Dissolution of the Company: If no Cause Contrary is shown by the company, ROC may on expiry of time period mentioned in the notice strike off Name off the Company and shall be published in Official Gazette.
Procedure to be followed by Company for Striking off:
A company may by its own by passing Special Resolution (SR) Strike off the Name of the company on the grounds mentioned in Section 248(1):
A. Board meeting:Company shall hold the Board Meeting for Strike off the Name off the Company and shall approve the Notice of Extra Ordinary General Meeting. B. Special Resolution:Company shall take the approval of Shareholder by passing Special Resolution in General Meeting. C. Approval of Authority: Company regulated by any other authority shall take the approval of them. D. After Approval file Form no STK-2 Along with following Documents:
Form No STK-3: Indemnity Bond of every Director duly notarized;
Form No STK-4: Affidavit of every Director of the Company;
Statement of Accounts: Statement of Accounts of the Company not more than 30 Days before the Date of application and certified by the Chartered Accountant;
Copy of Special Resolution: Copy of SR duly certified by each of the Director of the Company OR Consent OF 75% OF Members of the Company regarding Paid-up Share Capital as on the Date of Application;
Statement of Pending litigation (if any) involving the Company;
Public Notice: After receiving of application ROC Shall publish a public Notice STK-6, Any Objection shall be sent within 30 Days.
After Complying all the Process, ROC Shall strike off the Name and dissolve the Company by sending Notice in the official gazette in Form STK-7.
Section 249 (Company cannot make application on its own if following transactions are made at any time before 3 months of making application):
Any change in the Name of the company;
Change in registered office from one state to another;
The Company has to make a disposal of the value of property or rights held before it, immediately before cesser of trade business;
The Company has engaged in any other activity except one which is mandatory for the purpose of making application;
The application has been made by the Company to NCLT for sanctioning the scheme of compromise and arrangement and the matter has not been finally concluded; and
The Company has been wound up under Chapter XX by the tribunal.
Section 250 (Effect of Company Notified as a Dissolved):
Company shall stand Dissolved on and from the Date mentioned in the Notice and Certificate of incorporation issued to it shall be deemed to be Cancelled from such Date except for the purpose of realising the amount due to the company and for payment and Discharge of Liability or obligation of the Company.
Section 251(Fraudulent Application for removal of Name):
Application made by the Company with an object with an object to evade liability of the company, deceive the Creditor or to defraud the other person, the Person incharge of Management of the company shall
Be jointly and severally liable to any persons who had incurred loss or damage as a result of which Company has Notified Dissolved;
Be punishable for fraud in a manner provided in Section 447; and
ROC may recommend Prosecution of Person responsible for filling Application under section 248(2).
Section 252(Appeal to Tribunal):
Any person aggrieved by order registrar may appeal to the tribunal within a period of 3 year from the date of the order of registrar;
If the tribunal is statisfied that removal of Name of Company is not justified, it may by order restore the Name of the Company in the register of companies;
If Registrar is Satisfied that the Name of the Company has been struck off from the registrar of company either inadvertently or on the basis of incorrect information furnish by Company or Director, which requires restoration in register of companies he may within 3 year from the Date of passing of order dissolving the Company file application to tribunal restroration of name of such Company;
A Copy of order passed by the tribunal shall be filled by the Company with Registrar within 30 Days from the Date of order.
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