BEFORE THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES GUJ RAT DADRA, & NAGAR HAVELI
Order No. ROC-Gu./Ad.. Order/Astha Int./Sec. 137/2023/7412 to 20 Dated: 14 FEB 2023
Ex-PARTE ORDER FOR PENALTY UNDER SECTION 454 OF THE COMPANIES ACT 2013 READ WITH COMPANIES (ADJUDICATION OF PENALTIES) RULES, 2014 FOR PANIES ACT, 2013. VIOLATION OF SECTION 137 OF THE COMPANIES ACT 2013.
IN THE MATTER OF M/S AST INTERNATIONAL LIMITED
(U15400GJ20 l 9PLC057233)
Appointment of Adjudication Authority: –
1. The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.II dated 24.03.2015 has appointed the undersigned as Adjudicating Officer in exercise of the powers conferred under section 454 of the Companies Act, 2013 (hereinafter known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 (Notification No. GSR 254(E) dated 31.03.2014) for adjudging penalties under the provisions of Act.
Company:
2. WHEREAS, M/s. ASTHA INTERNATIONAL LIMITED (herein after referred to as “the Company”) is a Company registered under the provisions of the Companies Act, 1956/2013 in the State of Gujarat, having CIN(U154000.12009PLCO57233) and presently having its registered office situated at 225-232 Sardar Market Commercial Complex, APMC, Kadodara Road, Surat, Gujarat, 395010, India.
Fact of the case:
3. WHEREAS, sub-section (1) of Section 137 of the Companies Act, 2013 provides that A copy of the financial statements, including consolidated financial statement, if any, along with all the documents which are required to be or attached to such financial statements under this Act, duly adopted at the annual general meeting of the company, shall be filed with the Registrar within thirty days of the date of annual general meeting in such manner, with such fees or additional fees as may be prescribed.
4. Whereas, Copies of financial statements including consolidated financial statement along with all the documents which are required to be attached to such financial statement for the year ended 31.03.2019, 31.03.2020 & 31.03.2021 should have been filed on the MCA Portal in accordance with the provisions of Section 137(1) of the Companies Act, 2013 within 30 days from the date of adoption of the said document before the Annual General Meeting. [ date extended up to 01.02.2021 for the FY 2019-20]
5. Whereas, the undersigned has reasonable cause to believe that the provisions of section 137 of the Companies Act, 2013 has not been complied with. The company and its officers in default have violated the provisions of section 137 of Companies Act, 2013 which may be adjudicated under the purview of section 454(3) of the Companies Act, 2013. The Company and every officer of the Company who is in default are liable to be penalized u/s. 137(3) of the Companies Act, 2013.
6. Whereas, as per section 137(3) of the Companies Act, 2013, if a company fails to file the copy of the financial statements under sub-section (1) or sub-section (2), as the case may be, before the expiry of the period specified therein, the company shall be liable to a penalty of ten thousand rupees and in case of Continuing failure, with a further penalty of one hundred rupees for each day during which such failure continues, subject to a maximum of two lakh rupees and the managing director 4nd the Chief Financial Officer of the Company, if any, and, in the absence of the managing director and the Chief Financial Officer, any other director who is charged by the Boar with the responsibility of complying with the provisions of this section, and, in the absence of any such director, all the directors of the company, shall be liable to a penalty of ten thousand rupees and in case of continuing failure, with a further penalty of one hundred rupees for each day after the first during which such failure continues, subject to a maximum of fifty thousand rupees.
Show Cause Notice, reply and personal hearing:-
7. Whereas, the office of the undersigned issued adjudication notice wider section 454 of the Companies Act, 2013 for violation of section 137 of the Companies Act, 2013 to the Company and its officers in default on 16.12.2022 with request to rectify the aforesaid default withing 15 days of the notice and the office of the undersigned had also given an opportunity of being heard on 30.12.2022 at 2.30 p.m. for appearance and submission in the matte, through authorized representative or officer of the company. But no one was remained present in the office of the undersigned on the date of hearing on 16.12.2022.
ORDER:
8. While adjudging quantum of penalty under section 137 of the Companies Act, 2013, the Adjudication Officer shall have due regard to the following factors, namely:
(a) The amount of disproportionate gain or unfair advantage, whenever quantifiable, made as a result of default.
(b) The amount of loss caused to an investor or group of investors as a result of the default.
(c) The repetitive nature of default.
9. With regard to the above factors to be considered while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the notice or loss caused to the investor as a result of the delay on the part of the notice to redress the investor grievance are not available on the record. Further, it may also be added that it is difficult to quantify the unfair advantage made by the notice or the loss caused to the investors in a default of this nature.
10. Having considered the facts and circumstances of the case and after taking into accounts the factors above, the undersigned has reasonable cause to believe that the company and its officers have failed to deposit the penalty for violation of section 137 of the Companies Act, 2013. I hereby imposed a penalty on company and its Directors/officer in default as per Table below for violation of section 137 of the Companies Act, 2013 and the matter stand disposed off.
Penalty for non filing of Balance Sheet for the F.Y. 2018-19.
(The above penalty has been calculated as per section 137(3) of the Companies Act, 2013 w.e.f. 30.09.2019 onwards, as applicable)
11. The noticee shall pay the amount of penalty individually for the company and its directors (out of own pocked) by way of form No. INC-28 of e-payment (available on Ministry Website www.mac.gov.in) under “Pay miscellaneous fees” category in MCA fee and payment Service within 90 (ninety) days of this order and the Challan/SRN generated after payment of penalty through online mode shall be forwarded to this office along with the copy of form No. INC- 28.
12. Appeal if any, against this order may be filed in writing with the Regional Director, North Western Regional, Ministry of Corporate Affairs, ROC Bhavan, Opp. Rupal Park, Nr. Ankur Bus stand, Naranpura, Ahmedabad (Gujarat) 380 013 within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by the certified copy of this order. (Section 454 of the Companies Act, 2013 read with the Companies (Adjudicating of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019).
13. Please note that as per the provisions of section 454(8)(i) of the Companies Act, 2013, where company does not pay the penalty imposed by the Adjudication officer or the Regional Director within a period of Ninety days (90 days) from the date of the receipt of the copy or order, the company shall be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to five lakhs rupees. Further as per section 454(8)(ii) of the Companies Act, 2013, where an dfficer of a company who is in default does not pay the penalty within a period of Ninety days (90 days) from the date of receipt of the copy of the order, such officers shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both.
14. Your attention is also invited to section. 454(8) of the Companies Act, 2013 in the event of non-compliance of this order which provides that in case of default in payment of penalty, prosecution will be filed u/s. 454(8)(ii) of the Companies Act, 2013 at your own costs without any further notice.
The adjudication notice stands disposed of with this order.
(R. C. MISHRA) ICLS
Adjudicating officer,
Registrar of Companies,
Gujarat, Dadra and Nagar Haveli.
Signed this day of Fab, 2023.
Adjudicating officer,
Registrar of Companies,
Gujarat, Dadra and Nagar Haveli
