SHYAM SEL AND POWER LIMITED AND RAHUL GADODIA & ORS. v. THE REGISTRAR OF COMPANIES, WEST BENGAL

background, the petitioners have filed this application seeking quashing of the impugned notice and all proceedings connected therewith.

#3. On behalf of the petitioner, it is contended that the impugned notice is ex facie barred by limitation. All the financial statement and accounts were readily available with the respondent authorities. There is no case of fraud nor negligence of the directors or any other officer of the company. The company and its directors have all acted bonafide and in good faith. In support of such contentions, the petitioner relies on the decisions in Bhagwati Foods P. Ltd vs. Registrar of Companies, West Bengal (2008) 143 Comp Cas 531, Girdhar Tracom Private Limited vs. Registrar of Companies, 2024 SCC OnLine Cal 1671 and AI Champdany Industries Ltd. vs. Registrar of Companies 2011 SCC Online Cal 2296.

#4. On behalf of the respondent it was submitted that the clarification and queries sought for were in good faith and the petitioners always had the option of approaching the respondent authorities for filing applications for compounding of the offences complained of.

#5. The relevant sections of the Act are set out below:

#129. Financial statement.—(1) The financial statements shall give a true and fair view of the state of affairs of the company or companies, comply with the accounting standards notified under section133 and shall be in the form or forms as may be provided for different class or classes of companies in Schedule III: Provided that the items contained in such financial statements shall be in accordance with the accounting standards: Provided further that nothing contained in this sub-section shall apply to any insurance or banking company or any company engaged in the generation or supply of electricity, or to any other class of company for which a form of financial statement has been specified in or under the Act governing such class of company: 4 Provided also that the financial statements shall not be treated as not disclosing a true and fair view of the state of affairs of the company, merely by reason of the fact that they do not disclose— (a) in the case of an insurance company, any matters which are not required to be disclosed by the Insurance Act, 1938 (4 of 1938), or the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999); (b) in the case of a banking company, any matters which are not required to be disclosed by the Banking Regulation Act, 1949 (10 of 1949); (c) in the case of a company engaged in the generation or supply of electricity, any matters which are not required to be disclosed by the Electricity Act, 2003 (36 of 2003); (d) in the case of a company governed by any other law for the time being in force, any matters which are not required to be disclosed by that law.

#206. Power to call for information, inspect books and conduct inquiries.—(1) Where on a scrutiny of any document filed by a company or on any information received by him, the Registrar is of the opinion that any further information or explanation or any further documents relating to the company is necessary, he may by a written notice require the company— (a) to furnish in writing such information or explanation; or (b) to produce such documents, within such reasonable time, as may be specified in the notice 206 (4): If the Registrar is satisfied on the basis of information available with or furnished to him or on a representation made to him by any person that the business of a company is being carried on for a fraudulent or unlawful purpose or not in compliance with the provisions of this Act or if the grievances of investors are not being addressed, the Registrar may, after informing the company of the allegations made against it by a written order, call on the company to furnish in writing any information or explanation on matters specified in the order within such time as he may specify therein and carry out such inquiry as he deems fit after providing the company a reasonable opportunity of being heard: Provided that the Central Government may, if it is satisfied that the circumstances so warrant, direct the Registrar or an inspector appointed by it for the purpose to carry out the inquiry under this sub-section: Provided further that where business of a company has been or is being carried on for a fraudulent or unlawful purpose, every officer of the company who is in default shall be punishable for fraud in the manner as provided in section 447. 207(3)(b): (3) Notwithstanding anything contained in any other law for the time being in force or in any contract to the contrary, the Registrar or inspector making an inspection or inquiry shall have all the powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:— (b) summoning and enforcing the attendance of persons and examining them on oath; and 463(2) Power of court to grant relief in certain cases (2) Where any such officer has reason to apprehend that any proceeding will or might be brought against him in respect of any negligence, default, breach of duty, misfeasance or breach of trust, 5 he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a court before which a proceedings against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub-section (1).

#6. For convenience, a chart showing the respective queries raised by the respondent authorities and the response of the company are set out below: SI Allegations contained Company's Response (dated 11th August 2023 @ Reference In the Order under Page 119 of the CP) NO Section 206 (4) @ of the Petition

#1. Section 129(1) read The Company has shown an amount of Rs. Balance with Schedule- III, 4,89,78,50,000/- as “Other Expenses”. Further Sheet Division- II, 7 (c) of the Company has disclosed the other expenses Part II under General separately in notes to accounts in the note no. 39 Instruction of the Financial Statement of the Company as at preparation

31.03.2020. the expenses which are more than statement of profit 1% of the Revenue from Operations or Rs. and loss under the 10,00,000/- whichever is higher, are clearly Companies Act, 2013 disclosed, hence, the true and fair view of the state of affairs of the Company are not effected

#2. Section 129 (1) read The Company has shown financial Balance Schedule-III, statements of the Company as on 31st March, Sheet 6F(III)(c) of Division-II 2021 amount of Rs. 56,09,00,000/- as “Other the Companies Payables” under the head “Other Current Act, 2013 Liabilities” in note no. 29. Therefore, Company had properly disclosed the details of “Other Current Liabilities” financial statements

#3. Section 129 (1) read The Company has submitted the “Statement of Reply with Schedule III, Change in Equity” as an attachment in the dated 11th Division-II, 6F (I) (ii) financial statement for the year 31.03.2022. August, the Companies Further all the necessary details have been clearly 2023 Act, 2013 disclosed in such statement attached as per Balance Schedule III, Division II, Part I, A of the Sheet Companies Act, 2013. Hence, the true and fair 6 view of the state of affair of the Company was not affected

#7. A perusal of the impugned notice would show that the alleged contraventions were purely technical in nature and the explanation for each of them were easily available on scrutiny of the financial records of the company. The petitioners had satisfactorily responded to each and every allegation contained in the notice dated 20 July, 2023, issued under section 206 (4) of the Act. The allegations under section 129(1) of the Act claimed that the company had wrongly classified items like ‘Other Expenses', ‘Other Payables’, 'Other Current Liabilities’ and ‘Statement of Charge in Equity’ in its Balance Sheet. In response, the company clarified that all details were available in the Notes to Accounts, which identified that these amounts were fully disclosed and available from the accounts.

#8. Upon examination of the records, all the alleged violations and the particulars sought were explained and would be apparent from the financial statements submitted by the company. In any event, the queries raised were minor, trivial, and technical in nature which comprised of typographical errors or simple omissions and were ascertainable upon examination of the accounts of the company. The petitioners have throughout acted reasonably and complied with all acceptable norms of accountancy and this had been specifically drawn to the attention of the respondent authorities. If the respondents were of the view that any further clarification or verification was necessary, it was open for them to 7 inspect the books of accounts of the company. Strangely, there has been no attempt to even deal with the responses on merits which had been submitted by the company. The alleged non-compliances do not appear to be wilful nor deliberate in nature. There is no allegation of malafides attributable to the petitioners. A person seeking to be excused under section 463(2) of the Act for contravention of any provision of the Act is required to satisfy the Court that he or she acted honestly and reasonably and that there was no malafide intent of the petitioners. There is not even an allegation of falsity or suppression or dishonest or misfeasance conduct against the petitioners. (Deba Prasad Roy & Another vs. Regional Director, Department of Company Affairs (2008) 141 Company Cases 140).

#9. Admittedly, the company has no borrowings from any bank or financial institutions and all funds deployed in the business had been introduced by the promoters. There is no case of infusion of capital from any third party. Matters of accounting are always open to interpretation and divergence of opinion. There has been no substantive violation of the provisions of the Act by the petitioners. The only fault of the petitioners is that they failed to elaborate on certain entries. No palpable nor malafide intention can be attributed to the petitioners. There is no question of any misrepresentation nor prejudice which could have been possibly caused to any of the shareholders. The directors have at all times acted in good faith, honestly and reasonably.

#10. In any event, there is inordinate and undue delay in issuing the impugned notice. The period of limitation when the offence is punishable with 8 imprisonment is one year. The date of the knowledge of an aggrieved person would be the date from when limitation is to be computed. In view of the chronology of events, the alleged contravention of section 129(1) read with Schedule III Division II 7(c) of Part II expired on 8 February,

#2022. Similarly, the limitation period in respect of the alleged offence under section 129(1) read with Schedule-III 6F(III) (c) of Division-II expired on 14 October, 2022 and section 129(I) read with Schedule III Division II Part I expired on 24 November 2023. Section 514 of the Bhartiya Nagarik Suraksha Sanhita 2023 provides as follows: “514. Bar to taking cognizance after lapse of period of limitation.— (1) Except as otherwise provided in this Sanhita, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Explanation.—For the purpose of computing the period of limitation, the relevant date shall be the date of filing complaint under section 223 or the date of recording of information under section 173.”

#11. In this context, a chart reflecting that any action was ex facie barred by limitation is set out below: 9 Alleged Contravention Date of knowledge of the Expiration of Limitation Respondent, i.e., date when balance sheet was filed by the Company with the ROC Section 129(1) read with 8th February, 2021 8th February, 2022 (Documents annexed as Annexure- A) Schedule- III, Division- II, 7 (c) of Part II under General Instruction for preparation of statement of profit and loss under the Companies Act, 2013 Section 129 (1) read with 14th October, 2021 14th October, 2022 Schedule-III, 6F(III)(c) Division-II of the Companies Act, 2013 (Documents annexed as Annexure- B) Section 129 (1) read with 24th November, 2022 24th November, 2023 Schedule III, Division-II, Part I, A of the Companies Act, 2013 (Documents annexed as Annexure- C)

#12. As such, the respondent had knowledge of the commission of the alleged offences beyond a period of one year and have been sleeping over their rights (AI Champdany Industries Limited and Ors. -v- Registrar of Companies and Ors., 2011 SCC OnLine Cal 2296 and Bhagwati Foods P. Ltd vs. Registrar of Companies, West Bengal (2008) 143 Comp Cas 531).

#13. In summary, the impugned order has been prepared mechanically and without any application of mind. This would be apparent from the notice dated 20 December 2024 issued by the respondents which records that no response had been received to the letter dated 31 December 2020. This is factually incorrect and a glaring error by the respondents which goes to the foundation of the impugned order. In issuing the impugned notice, the 10 respondent authorities have failed and ignored the representations and responses of the petitioners dated 25 June, 2021 and 11 August, 2023 respectively. The alleged violations could have been easily resolved on a proper scrutiny of the financial statements and records of the company. An infraction of such technical and trivial nature does not warrant issuance of the impugned notice. [Girdhar Tracom Private Limited and Narendra Dhanuka and Ors. -v- Registrar of Companies, West Bengal, 2024 SCC OnLine Cal 1671].

#14. In conclusion, the role of the Registrar of Companies as a watchdog cannot be undermined. However, it is important to bear in mind that such powers should not be exercised in a light, casual or cavalier manner. Any reply to a notice of the kind impugned requires deployment of manpower, time and resources. The underlying object being one of public interest and not of harassment. The mantra is one of ease of doing business and not unease of doing business.

#15. With the above directions, CP/2/2025 stands allowed. There shall be an order in terms of prayers (a) to (d) of the Notice of Motion. The petitioners are absolved of all liabilities in respect of the alleged offences complained of in the impugned notice and the proceedings connected therewith. In view of the above, CP/2/2025 alongwith any connected application stands