SECTION 249 (Restriction on making application u/s 248 in certain cases)
Updated: Oct 7, 2022
Section 248(1)
Where the registrar has a reasonable cause to believe that:
(a) The Company has failed to commence its business within one year of its incorporation,
Or
(b) 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 dormant Company u/s 455.
DISQUALIFICATIONS (as per Rule 3)
Listed Companies
De-listed Companies due to non Compliance of listing agreement or any other statuary laws
Section 8 (or Section 25) Companies
Companies having charges which are pending satisfaction
Vanishing Companies
Companies where investigation/inspection has been ordered and is pending.
Companies, where order u/s 234 of Companies Act, 1956 (power of Registrar to call for information or explanation) has been issued by ROC and reply, is pending.
Companies whose compounding application is pending in a competent authority.
Companies against which any prosecution for an offense is pending in any court
Companies accepted public deposits & which are outstanding for payment.
Section 248(2)
A Company may after extinguishing all liabilities, also make an application in Form No. STK-2 which shall be signed by the director duly authorized by the Board and certified by a PCA/PCS/PCWA along with the fee of 5000/- rupees for the purpose of removing the name of the Company from the register of members after abolishing all of its liabilities, by passing a special resolution or obtaining the consent of 75% members in terms of paid-up share capital.
SECTION 249
Restriction on making application u/s 248 in certain cases
An application u/s 248(2) by a Company shall not be made if at any time in the previous 3 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 the 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 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) An application to the Tribunal for sanctioning of compromise or arrangement is pending.
(e) The Company is being wound up under Chapter XX whether voluntarily or by the Tribunal.
Rule 4(2) read with 1st Proviso to Section 248(2)
Every application made by the Company in Form STK-2 u/s 248(2) shall accompany a no-objection certificate from the appropriate regulatory authority concerned in respect of Companies namely.
(i) Non-Banking financial companies and Investment Companies as
(ii) housing financing Companies
(iii) Insurance Companies
(iv) Capital market Intermediaries
(v) Companies engaged in a collective investment scheme
(vi) Asset Management Companies
(vii) Any other Companies which is regulated under any other law for the time being in force
Rule 4(3) of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016
The application in Form STK-2 shall be accompanied by:
(i) Indemnity bond duly notarized by every director in Form STK-3.
(ii) a statement of accounts duly certified by a CA containing the assets and liabilities of the Company made not more than 30 days before the date of application.
(iii) Affidavit in form STK-4 by every director
(iv) CTC of a resolution duly certified by every director
(v) a statement regarding pending litigation Rule 7 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016
Manner of Publication of Public notice:
The Notice under sub-section (1) or sub-section (2) of section 248 shall be in form STK-5 or STK-6, as the case may be-
(i) Placed on the official website of MCA on a separate link established on such website in this regard;
(ii) Published in the Official Gazette;
(iii) Published in English Newspaper and one in Vernacular language.
(iv) Placed on Company’s website
Section 248 (6), (7), and (8)
Before passing the final order, the ROC shall satisfy himself that sufficient provisions have been made for the realization of all amounts due to the company and for the payment of all the liabilities of the Company.
The Assets of the company shall be made available for the payment of its liabilities even after the striking of the name.
Liabilities of the Director, manager, or other officers and members shall continue even after the striking of the name.
Nothing in this section shall affect the power of the tribunal to wind up a company, the name of which has been struck off from the Register of Companies. Rule 9 of Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016
The ROC shall cause notice under section 248(5), for striking off the name of the Company from the Register of Companies and its dissolution to be published in Official Gazette in form STK-7 and the same will be placed on MCA Portal.