Through E-mail/Speed Post
Dated: 04.09.2021
Shri Rajesh Verma,
The Secretary,
Ministry of Corporate Affairs,
5th Floor, “A” Wing,
Shastri Bhawan,
Rajendra Prasad Road,
New Delhi – 110001.
Email: secy.mca@nic.in
Reg: Filing of Board Resolution by Private Companies with respect to approval under clause (c) of sub-section (3) of Section 179 of the Companies Act, 2013.
Respected Sir,
We would like bring your kind attention provisions contained in Proviso to Rule 14(8) of Companies (Prospectus of Securities) Rules, 2014 which provides as under-
“(8) a company shall issue private placement offer cum application letter only after the relevant special resolution or Board Resolution has been filed in the Registry.”
“Provided that Private Companies shall file with the Registry copy of Board resolution or special resolution with respect to approval under clause (c) of sub-section (3) of Section 179.”
Accordingly, a Private Company shall file the copy of Board Resolution with Registrar of Companies, with respect to approval under clause (c) of sub-section (3) of Section 179.
Whereas, it is also bringing your kind attention that MCA has issued a Notification No. GSR 464(E) dated June 5, 2015 regarding non applicability of Chapter VII, clause (g) of sub-section (3) of Section 117. In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of section 462 and in pursuance of sub-section (2) of said section of the Companies Act, 2013, the Central Government has directed that certain provision of Companies Act, 2013, as specified in column (2) of the Table, shall not or shall apply with such exceptions, modifications and adaptions, as specified in column (3) of the said Table, to a private company, namely-
| Serial number | Chapter/Section number/Sub-section(s) in the Companies Act, 2013 | Exceptions/Modifications/Adaptions |
| (1) | (2) | (3) |
| 8. | Chapter VII, clause (g) of sub-section (3) of Section 117 | Shall not apply |
As per the aforesaid notification, Private Company is not required to file copy of Board Resolution passed under section 179(3) of the Companies Act, 2013.
In view of the above, it is submitted proviso to Rule 14(8) as amended by the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2018 and Notification No. GSR 464(E) dated June 5, 2015 are contradict to each other. Therefore, a clarification from MCA is much needed.
We, sincerely request you to please issue necessary clarification/circulars/ notifications etc. in this regard.
With highest regards,
Sushil kumar Antal
Advocate (Managing Partner)
For Lex Stabilis Corporate Advisors
Author Bio
