Condonation of Delay for Delayed Filing of Form 8 / Form 17 Procedures under The Companies Act
Now condonation of delay for late filing of Form 8 and form 17 under the Companies Act, 1956, requires a petition to be filed with Regional Director, Ministry of Corporate Affairs and earlier the same was required to be made to Company Law Board. The procedure for making the petition for condonation of delay under Section 141 of the Companies Act, 1956 is given below.
1. Call for a board meeting to decide to file a petition under Section 141 for condonation of delay in respect of form 8 and form 17 filed after due date. Form 8 can be filed within 30 days from the date of creation or modification and if it is not possible additional period of 30 days is allowed that is within 60 days and in case of Form 17 within 30 days from the dated of satisfaction of charge.
2. In the Board meeting authorize the Practicing Company Secretary / Practicing Chartered Accountant to appear on behalf of the company.
3., File 8 / Form 17 with ROC. One time filing fees will be required to be paid and remark will be appearing challan of the Form 8 / Form 17 regarding number of delays.
4. Prepare a petition for condonation of delay. A format of the petition is annexed.
5. Reason for the delay must be specific. Don’t mention that mistake is made inadvertently. Please specify that the officer entrusted with the work left the company or some other specific reason.
6. Prepare the petition and file it with form 24AAA. Form 24AAA is filing of form with Regional director. The charges for filing form is Rs. 1000/-
7. File Form 61 and file it with ROC. The charges for filing form is depending upon the Authorised Share Capital of the Company varying from Rs. 200 to Rs. 500
8. The petition is required to be enclosed with the following documents. There is no need to file any demand draft along with the petition.
9. The petition has to be filed with the Regional Director with the Regional Office of the Ministry of corporate Affairs in the jurisdiction where the existing registered office is situated. The following are the jurisdiction of Regional directors.
|(i) Regional DirectorNorth Region Directorate Headquarter at Noida (Gautam Budh Nagar)||North Region Directorate Headquarter at Noida (Gautam Budh Nagar)States of Jammu and Kashmir, Punjab, Himachal Pradesh, Haryana, National Capital Territory of Delhi, Uttar Pradesh, Uttarakhand and Union Territory of Chandigarh.|
|(ii) Regional DirectorSouthern Region Directorate Headquarter at Chennai||Tamil Nadu, Union Territory of Andaman and Nicobar Islands and Puducherry|
|iii) Regional DirectorSouthern Eastern Region Directorate Headquarter at Hyderabad||States of Andhra Pradesh, Karnataka, Kerala and Union Territory of Lakshadweep,|
|(iv) Regional DirectorWestern Region Directorate Headquarter at Mumbai||States of Maharashtra, Goa and Union Territory of Daman and Diu.|
|(iii) Regional DirectorEastern Region Directorate Headquarter at Kolkata||States of Bihar, Jharkhand, Orissa, West Bengal.|
|Regional DirectorNorth Western Region Directorate Headquarter at Ahmedabad||States of Gujarat, Rajasthan, Madhya Pradesh, Chhattisgarh and Union Territory of Dadra and Nagar Haveli|
|Regional DirectorNorth Eastern Region Directorate Headquarter at Guwahati||State’s of Meghalaya, Assam, Arunachal Pradesh, Nagaland, Mizoram, Manipur and Tripura.”|
10. Petition should not be prepared in the letter head.
11. A hearing will not take place at the Regional Director office normally and order will be despacted after one or two weeks. However if the delay is more than one year the hearing may be held at RD office.
12. The entire process will take approximately two weeks and it also requires follow up with Regional Director Office.
Flow chart of the procedure under condonation of delay:
Board Resolution for filing petition for Condonation of Delay and authorizing Practicing professional / Director to file the petition.
Petition shall be prepared explaining reason for delay along with affidavit verifying petition by the director, MOA, AOA, Form 8 or 17, Challan paid for Form 8 or 17 and Memorandum of Appearance
File Form 61 with petition and all other attachment
File Form 24AAA with petition and all other attachments
File the original Petition with ROC along with enclosures
Order will be issued by Regional Director mentioning prescribed fees for delay
After paying the fees as directed by RD in miscellaneous payment with reference of Form 8 SRN number, File Form 21 within 30 days of passing order by paying requisite fees
While filing Form 21, MCA will show a remark to file the original order with ROC. And therefore file the original order along with copy of Form 21 and Challan copy of payment of fees as mentioned in the order
After few days Check whether Form 8 is approved by entering the SRN no in track transaction status, otherwise follow up with ROC
Once Form 8 is approved, Charge ID will appear for Form 8 in the Index of Charges
FORMAT OF PETITION:
|BEFORE THE REGIONAL DIRECTOR, SOUTHERN REGION, DEPARTMENT OF CORPORATE AFFAIRS,5TH FLOOR, SHASTRI BHAWAN, 26, HADDOWS ROAD, CHENNAI|
|COMPANY PETITION NO. OF 2013|
|IN THE MATTER OF THE COMPANIES ACT, 1956|
|IN THE MATTER OF SECTION 141 OF THE COMPANIES ACT, 1956 AND|
|IN THE MATTER OF XYZ PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA|
|IN THE MATTER OF XYZ PRIVATE LIMITED|
|THE REGISTRAR OF COMPANIES, TAMILNADU|
1. DETAILS OF THE PETITIONER
XYZ PRIVATE LIMITED is the petitioner company (hereinafter referred to as “the Company”) was incorporated as a Private Limited Company vide Certificate of Incorporation No. X00000XX0000XXX00000 dated ……… issued by The Registrar of Companies, Tamil Nadu, in the name of XYZ PRIVATE LIMITED.
The Registered Office of the company is at present situated at NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA
The Authorized share Capital of the Company as on date is Rs. 5,00,00,000 /- divided into 50,00,000 equity shares of Rs. 10/- each and the paid-up capital as on date is Rs.500,00,000 / -divided into 50,00,000 equity shares of Rs. 10/- each.
2. THE OBJECTS FOR WHICH THE COMPANY WAS INCORPORATED
1. To carry on the business of hoteliers, restaurants, café, tavern, beer house, subject to the law of the State, refreshment rooms and lodge house keepers, motels, auto courts, vehicle hirers, holiday camps and apartment house keepers, licensed victuallers, manufacturers of and dealers in aerated, mineral artificial waters and other drinks, purveyors and caterers for public amusements and to the extent permitted by law, wine, beer and spirit merchants, brewers, malters and distillers.
2. To carry on the business of bakers, confectioners, milk sellers, dairy men, grocers, butchers, poulterers, farmers, ice merchant and ice cream makers, and to buy, sell, import, and produce, manufacture or otherwise deal in food and food products, meat, groceries, fruits, biscuits, confectionery, linen, furniture and furnishings and other articles required in connection with the main business and to the extent permitted by law in wine, spirit, beer and alcoholic beverages.
3. To build, make, construct, purchase, equip, maintain and improve, alter, lease and work concert halls, bail rooms and music halls, cinema theatre, lodging restaurant house, chattels cottages, etc., and provide them with television, radio, gramophone and other amusements.
4. To carry on the business of travel agents, recognized dealers of foreign exchange and as proprietors and managers of motors and other vehicles, garage proprietors, dealers in curios etc, and to develop and promote tourism.
5. To carry on, either in connection with the business aforesaid or as distinct and separate business, the business of ice makers, ice vendors, manufacturers, hirers of and dealers in refrigerators, Air-conditioners, refrigerating chambers and apparatus relating thereto, warehouse keepers and stores of all commodities, good articles in refrigerators, ice chambers, or otherwise.
3. PARTICULARS OF THE PETITIONER
Petitioner viz. XYZ PRIVATE LIMITED is a Company registered under the provisions of the companies Act, 1956 and having its Registered Office at NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA .
4. PARTICULARS OF THE RESPONDENT
The Registrar of Companies, Tamil Nadu is the Respondent.
5. JURISDICTION OF THE REGIONAL DIRECTOR
The petitioner declares that the subject mater of the petition is within the jurisdiction of the REGIONAL DIRECTOR, Southern Region, Chennai as the Registered Office of the Company is situated in the State of Tamilnadu.
The Petitioner Company further declares that section 141 of the Companies Act, 1956 has not laid down any limitation for filing petition under the said section.
7. FACTS OF THE CASE
XYZ PRIVATE LIMITED is the petitioner company (hereinafter referred to as “the Company”) was incorporated as a Private Limited Company vide Certificate of Incorporation No. X00000XX0000XXX000000 dated ……… issued by The Registrar of Companies, Tamil Nadu, in the name of XYZ PRIVATE LIMITED.
a. Power to borrow and charge the assets
Sub Clause 29 of Clause III (B) of the Memorandum of Association of the Company provides necessary powers, inter alia to borrow or raise or secure the payment of money by mortgage or charge the properties of the Company towards security against such borrowing as the company may think fit.
The above-mentioned sub clause is reproduced below:
“To borrow money at interest or otherwise from any person or persons company, local authority or government and advance, lend or deposit any such money or other moneys of the company for the time being, on such securities or otherwise as the company may deem expedient”.
b.Creation of Charge
Based upon such powers, ABC FINANCE LIMITED, having REGISTERED OFFICE AT NO 21, PATTULLOS ROAD, CHENNAI – 600002, TAMILNADU a Non-Banking Financial Company from the State of Tamil Nadu constituted under The Companies Act, 1956, sanctioned secured loan of Rs. 5,00,00,000 (Rupees Three Crores only) on 30/06/2012 and Form 8 for creation of charge was filed on 12/03/2013 with Registrar of Companies, Tamil Nadu, vide SRN No. B69972628 dated 12/03/2013 and payment was deposited through credit card for registration of Creation of charges with Registrar of companies, Tamil Nadu.
c. Delay in filing the particulars of Creation of Charge
As per the provisions of Section 138 of the Companies Act, 1956, the Petitioner Company ought to have sought the registration of memorandum of the above mentioned charge dated 30.06.2012 with The Registrar of Companies, Tamil Nadu on or before 30/07/2012 i.e. within the statutory period of 30 days from the date of the above said creation of charge.
The petitioner company actually filed the particulars of charge in Form 8 with Registrar of Companies, Tamil Nadu on 12/03/2013 vide SRN No. X00000000 dated 12/03/2013 and payment was made through credit card on 12/03/2013 in AXIS Bank, Chennai resulting in a delay of 225 days.
The delay in filing the particulars of charge was occasioned due to the reason that the officer of the company looking after company affairs left the services of company without informing the status of various jobs assigned to him. And also the company was in dormant status and by filing the Annual Forms upto date which took time to bring the company from active in progress to active status. Hence the company could not file the form with in due date. The company file this petition wit the Regional Director for obtaining necessary order for condonation of delay and extension of time for filing the particulars of charge up to and inclusive of the actual date of filing on 12-03-2013.
Certified true copy of the relevant Form 8 and filing fee receipt in SRN No. X000000000 dated 12/03/2013 are enclosed and marked as annexure A1 and A2 respectively.
8. NO CHARGE CREATED AFTER FILING THE ABOVE CHARGE
The company has not created any further charge with any bank or company after filing the above charge from 12/03/2013 to till date.
9. MATTERS NOT PREVIOUSLY FILED ARE PENDING WITH ANOTHER COURT
The petitioner further declares that the company has not previously filed any application, writ petition or suit regarding the matter in respect of which this petition has been made before any other Court of Law or in any other Authority or any other Bench of the Board or Regional Director and no such application, writ petition, suit is pending before any of them.
10. RELIEF SOUGHT
In view of the facts mentioned in paragraph 8 above, the petitioner prays for an order that:-
The delay of in filing of Memorandum of Charge in Form 8 is condoned.
Extension of time for filing the particulars of creation of charge up to and inclusive of the actual date of filing on 12-03-2013.
Instruct the Registrar of Companies, Tamil Nadu to take on record the creation of Charge in Form 8.
The Hon’ble Director may pass such further order or orders as it may deem fit in the circumstances of the matter.
XI. LIST OF ENCLOSURES
|A 1||Certified true copy of Form No.8|
|A2||Certified true copy of Filing Fee Receipt in SRN Challan No. X000000000 dated 12/03/2013.|
|A3||Affidavit verifying Petition|
|A4||Board Resolution authorizing Mr. AAA, Managing Director and/or Mr. BBB, Company Secretary to appear before the Regional Director.|
|A5||Memorandum of Appearance of Mr.|
|A6||A certified copy of Memorandum and Articles of Association.|
FORMAT OF BOARD RESOLUTION:
XYZ PRIVATE LIMITED
6, GANDHIJI STREET,TIRUVANNAMALAIDD
TIRUVANNAMALAI-DD, TAMIL NADU – 606601, INDIA
TRUE EXTRACT OF THE RESOLUTIONS PASSED BY THE DIRECTORS AT THEIR MEETING HELD ON Tuesday, 12-03-2013 AT 10.00 A.M AT THE REGISTERED OFFICE OF THE COMPANY
RESOLVED THAT the consent of the Board of Directors be and is hereby given to Mr. AAA, Managing Director or Mr. BBB Practicing Company Secretary, having his Office at Flat B, Brindha Flats, Old No. 27 New No. 67, Nethaji Street, West Mambalam Chennai – 600033 who shall be severally authorized to do the following:
For XYZ PRIVATE LIMITED
Email – firstname.lastname@example.org
Mobile : 97907 91965, 94447 71442