Provisions of Active Form & Consequence of non filing with FAQs

To get status of updated compliances (Detection of Shell Companies) of Companies. MCA has introduced on 21^st February, 2019, Companies (Incorporation) Amendment Rules, 2019. These rules shall come into force from 25^th February, 2019. A new Rule 25A inserted after Rule 25. A New Form 22A (e-form Active) Introduced.

In this Flash Editorial author begins by discussion on the provisions of e-form Active (its Applicability, Exemptions, Consequences of Non filing, Details required to file etc.) and FAQ’ s on e-form Active.

Short Summary:

Every Company incorporated on or before 31^st December, 2017 shall file Particular of Company, Directors, KMP’s, Auditors and Registered Office in e-form Active (i.e. e-form 22A) on or before 25.04.2019.

♠ Companies which are exempted to file e-form 22A (e-form Active)?

• Struck off Companies (Whether by ROC or sue motto)
• Companies under process of Strike off
• Companies under amalgamation
• Companies Dissolved

IMPORTANT NOTE:

a. In case of any Company (Private / Public) having paid up share Capital of Rs. 50,000,000/- or more required to appoint Company Secretary. And mandatory need to file form. Otherwise such Company shall not allow filing e-form Active.

b. If any director of Company is disqualified. Company required file e-form DIR-12 for their vacation as per Section 167. Otherwise such Company shall not allow filing e-form Active.

c. Company has to maintain proper registered office and have to affix proper Board at Registered office by mentioned information as per Section 12.

d. Company properly have to appoint CEO, CFO, CS, if Applicable on Company.

e. Completion of Annual Filing I.e. AOC-4 / MGT-7 up to date till f.y. ended 31.03.2018 is mandatory. Otherwise such Company shall not allow filing e-form Active.

FAQs on Filing of E-Form- Active Active Company Tagging Identities and Verification

A. Whether it is mandatory to show picture of Board containing information as per section 12 in photograph or What are information required to mentioned on Board of Company at Registered office?

As per Section 12(3)(A), Every company must painted or affix following details outside the registered office.

1. Name of Company (mandatory in local language)

2. Address of registered office (mandatory in local language)

3. GSTIN of Company (As per CGST Rule 18)

However, therefore it is mandatory to show picture of Board in the picture to be attached in active form.

B. If on the Board of Office details are mentioned in English Language, whether it is proper compliance of Section 12?

As per Section 12(3)(a) “(3) Every company shall—

(a) paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in a conspicuous position, in legible letters, and if the characters employed therefor are not those of the language or of one of the languages in general use in that locality, also in the characters of that language or of one of those languages;”

However, one can opine that it is mandatory to have details in “Local” Language. Details in English language are not a proper compliance of Section 12.

C. If a Company having more than one GST No. then whether all the GST no. required to mention outside registered office?

Company has to mention GSTIN take at registered office of Company. If company have not taken GSTIN at registered office address then no need to display same out side the office.

D. Whether “Latitude and Longitude” are required to show on Photograph?

As per Active form and rules, it is mandatory to mention Latitude and Longitude in the Form. However, no where it is mentioned that it should show on Photograph. Therefore, Photograph can be without Latitude and Longitude.

E. Whether it is mandatory to click photograph from GPS Camera?

As per Active form and rules, no where it is mentioned that picture should take from GPS Camera. However, one can opine that photograph from normal camera shall also work and shall be considered as compliance of law.

F. Whether it is mandatory to cease disqualified director to file Active Form?

As per Companies Act, 2013 Section 167, disqualified director shall consider as vacant from all the Companies from the date of disqualification.

Therefore, in case there is any disqualified director appearing in master date of Company, Legally he can’t continue as director due to Section 167. All the work done by him during disqualified periods shall be considered as void and he was not allowed to sign any documents as director.

Therefore, one can opine that Company have to First file e-form DIR-12 for cessation of disqualified Director and then company shall be allowed to file e-form ACTIVE.

G. Whether Company needs to complete annual Filing of Company before filing of ACTIVE Form?

As per provisions of Active Form and rules “If Company has not filed its due Financial Statement (AOC-4) or Annual Return (MGT-7) or both with ROC. Such Company shall not allow filing e-form ACTIVE”

Therefore, Companies are required to complete its Annual Filing before filing of e-form Active (i.e. 22A).

H. Whether there is any limit that a particular office can have maximum no. of company as registered office?

As per Companies Act, 2013 nowhere it is prescribed that how many Companies can use a property as its registered office.

Therefore, one can opine that an office can be use by multiple companies as Registered office without any restriction.

However, professionals/ directors have to make sure that board of all the Companies as per Section 12 affix outside such registered office.

I. Whether Same e-mail ID can be use for more than one Company?

Yes it is no where mentioned under Act that how many company can use one email ID. Therefore one can opine that an email id can be use for multiple Companies.

However, practically if we are using same mail id for multiple companies. Companies are properly receiving the OTP.

J. If Company incorporated on or after 01^stJanuary, 2018. Then whether Companies need to file this form 22A?

As per Amendment Rules, Only companies incorporated on or before 31^st December, 2017 are required to file e-form 22A.

Therefore, one can opine that Companies Incorporated on or after 1^st January, 2018 not required to file e-form 22A.

K. What is due date for e-form 22A?

Due date for filling of e-form 22A is 25^th April, 2019.

L. Consequences if Company fails to file e-form 22A till 25^th April, 2019?

There are two types of consequences:

1. After 25^th April, 2019 if any Company will file e-form 22A. Company have to pay Fees of Rs. 10,000/-.

2. Status of Company in Master Data shall be changed as “Active- Non Compliant” w.e.f. 26^th April, 2019.

3. Barred of Filing of Forms:Once status of Company changes as ‘Active Non-Compliant” It will be restricted to file following below mentioned forms:

• Sh-7 (Increase in Authorized Capital)
• PAS-3 (Allotment of Shares)
• DIR-12 (Appointment and Resignation of Director (Except Cessation))
• INC-22 (Change in Registered Office)
• INC-28 (For purpose of Amalgamation or de-merger)

4. Action by ROC: Company shall be liable for action under Section 12(9). ROC may remove the name of Company from its record.

M. Companies which are exempted to file e-form 22A (e-form Active)?

• Struck off Companies (Whether by ROC or sue motto)
• Companies under process of Strike off
• Companies under amalgamation
• Companies Dissolved

N. If Company is under Management Dispute due to this not able to file Financial Statement or Annual Return. Whether allowed to file e-form Active.

If there is any management dispute and company has informed the same to ROC. In such case even without completion of Annual Filing (AOC-4 or MGT: 7) Companies are allowed to file e-form ACTIVE.

O. Whether LLP or Branch office also required to file e-form 22A?

As per Language of Rule 25A “Every Company”, therefore, one can clearly opine that Only Companies are required to file this Form.

LLP and Branch offices are out of preview of e-form 22A. They don’t require filing this form with ROC.

P. If a Place having more than 1 registered office or in other words whether there is any restriction on No. of Registered office on single premises?

As per Companies Act, 2013 nowhere limit of registered office at single premises is prescribed. Therefore, it is very clear that single premises can have any number of registered offices.

Q. If a Company obtained status of ‘Dormant’ Whether required to file e-form Active (22a)?

Answer- Only above mentioned 4 category Companies are exempted from filing of e-form Active. Therefore, one can opine that yes Dormant Companies are also required to file e-form Active.

Features of e-form 22A (ACTIVE)

i. Initial Details Required to Mention in e-form 22A:

• Name and Registered Office of Company
• Latitude & Longitude of (RO)
• Mail ID & OTP Verification

ii. Whether any OTP shall be generate to file e-form 22A.

Whatever email ID of Company mentioned in e-form 22A shall receive OTP. That OTP is mandatory to file form 22A.

iii. Address Proof of Registered Office.

Photo of Registered Office

• Showing external building and
• Inside Building
• Inside office also showing therein atleast one director/KMP who has affixed his/her DSC on e-form 22A.

iv. Details of DIRECTORS required being mention in e-form 22A.

• Serial No DIN
• Name of Director Status of DIN

NOTE:

Company has to ensure that DIN of Directors are Active. DIN are not De-activated due to non-filing of DIR-3KYC or Disqualified u/s 164(2)

v. Details of AUDITORS (Statutory / Cost) required being mention in e-form 22A.

• Category PAN
• Name of Auditor/ Firm Membership No.
• Period of Account for which appointed

vi. Information about KMP:

> Details of MD/CEO/ WTD (DIN/ PAN, Name, Designation)

> Details of Company Secretary

> Details of CFO

vii. One more important Information:

> SRN of AOC-4 and MGT-7 filed for Financial Year 2017-18

Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com).

(Republished with Amendments)