Company Penalized for Non-filing of Annual Return under Section 92(4) of the Companies Act, 2013: A Case Study of Sitaram Maharaj Sakhar Karkhana (Khardi) Limited
Introduction: In a recent adjudication order, the Registrar of Companies, Maharashtra, Pune, has imposed penalties on Sitaram Maharaj Sakhar Karkhana (Khardi) Limited for non-compliance with Section 92(4) of the Companies Act, 2013. The case revolves around the company’s failure to file its annual return within the stipulated time frame.
Background: Sitaram Maharaj Sakhar Karkhana (Khardi) Limited, a registered company, underwent an inspection under Section 206 of the Companies Act, 2013. The inspection revealed the company’s non-compliance with the annual return filing requirements, leading to penal consequences.
Alleged Violations:
Non-filing of Annual Return: The inspection highlighted that the company failed to file its Annual Return for the financial year 2020-21 within the prescribed timeframe of sixty days from the date of the annual general meeting.
Legal Provisions:
Section 92(4) of the Companies Act, 2013: Every company is mandated to file a copy of its annual return with the Registrar within sixty days from the date of the annual general meeting or, if no meeting is held, within sixty days from the date on which the meeting should have been held. Failure to comply attracts penalties under Section 92(5) of the Act.
Companies (Adjudication Of Penalties) Rules, 2014: The adjudication process is governed by these rules, empowering the Registrar to impose penalties for non-compliance.
Adjudication Process:
Appointment of Adjudicating Officer: The Ministry of Corporate Affairs appointed Mangesh Jadhav as the Adjudicating Officer to assess penalties under Section 454(3) read with Section 92 of the Companies Act, 2013.
Company’s Response: The company claimed compliance with Section 92 and expressed its intention to approach the competent authority for adjudication/compounding.
Adjudication Notice: The adjudication officer issued a notice to the company under Section 454(4) read with Section 92, citing the violation and the intention to impose penalties.
No Response Received: Despite the notice, no response was received from the company.
Observation by the Inspection Officer: The Inspection Officer commented that the company had indeed failed to file the annual return for the specified financial year and recommended appropriate action.
Order and Penalty:
Penalty Imposed: Mangesh Jadhav, the Adjudicating Officer, concluded that the company and its officers in default were liable for penalties under Section 92(5) of the Act.
Penalty Amount: The penalty amount was determined based on the company’s failure to file the annual return for the financial year 2020-21 within the prescribed time frame.
Payment and Appeal: The company and its officers were instructed to pay the imposed penalty through the Ministry of Corporate Affairs portal. The order specified the procedure for filing an appeal under Section 454(5) of the Act.
Conclusion: The case of Sitaram Maharaj Sakhar Karkhana (Khardi) Limited serves as a cautionary tale, emphasizing the importance of timely compliance with statutory obligations. Companies are reminded to adhere to the filing requirements outlined in the Companies Act, 2013, to avoid legal repercussions and maintain transparency in their corporate governance practices.
****
Office of the Registrar of Companies
Maharashtra, Pune
Ministry of Corporate Affairs
Government of India
PCNTDA Green Building, Block A, 1st & 2nd Floor, Near Akurdi Railway Station, Akurdi, Pune – 411044
Phone: 020-27651375/78, Email: [email protected]
Order No. RoCP/ADJ/order/92/23-24/SMSKKL/MV/2329 to 2334 Date: 21 DEC 2023
ADJUDICATION ORDER
*****
Adjudication Order of penalties in the matter of SITARAM MAHARAJ SAKHAR KAI2KHANA (KHARDI) LIMITED (U15424PN1999PLC013656) under Section 454(3) r/w section 92 of the Companies Act, 2013
Please Read:
- Companies (Adjudication Of Penalties) Rules, 2014 as amended by Companies Adjudication of Penalties) Amendment Rules, 2019 (G.S.R.131 (E)).
- Provisions of Subsection (4) of Section 92 of the Companies Act, 2013.
- Rule 1 of Companies (Management and Administration) Rules, 2014.
- Gazette Notification of Ministry of Corporate Affairs vide No. A-42011/112/2014-Ad. II dated 24.03.2015 (see SO 831(E), dated 24.03.2023)
- Companies (Amendment) Act, 2019.
- General Circular No.01/2020 dated 02.03.2020.
In resect of:
SITARAM MAHARAJ AKHAR KARKHANA (KHARDI) LIMITED (U15424PN1999PLC013656) having its registered office as per MLA21 Registry at address “C/O Kalyanrao V Kalea/P Wadikuroli Pandharpur NA, Solapur, Maharashtra 000000 India. ” and its directors/KMPs.
1. Appointment of Adjudicating Officer:
Ministry of Corporate Affairs vide its Gazette Notification No. A42011/112/20 4-Ad.II, dated 24.03.2015 (see SO 831(E), dated 24.03.2015) appointed und resigned as Adjudicating Officer in exercise of the powers conferred by section 454(1) of the Companies Act, 2013 (herein after known as Act) r/w Rule 3(1) of Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act. The undersigned vide Companies (Amendment) Act, 2019 is entrusted to adjudicate penalties under section 203 of the Companies ACT, 2013 with effect from 02. 1.2018.
2. Company:
Sitaram Maharaj Sakhar Karkhana (Khardi) Limited (U15424PNI999PLC013656) (herein after referred as Company) is a registered company with this office under the provisions of section 7 of the Companies Act, 2013 having its registered office as per MCA21 Registry at address “C/0 KALYANRAO V KALEA/P WADIKUROLI PANDHARPUR NA, SOL PUR, Maharashtra, 000000, India.”
3. Facts about the Case:
a) Whereas, the provisions of section 92(4) of the Act, require that every company shall file with the Registrar a copy of the annul return, within sixty days from the date on which the annual general meeting referred to in Section 96 of the Act is held or; where no annual general meeting is held in any year then within sixty days from the date on which the annual general meeting should have been held to ether with the statement specifying the reason for not holding the annual general meeting ;
b) An Inspection of the company under section 206 of the Companies Act, 2013 was conducted by an IO of this office, it was observed that, during the course of Inspection that- “the Company has not filed its Annual return for the year 2018-2019, 2019-2020, 2020-2021 for which the company and officers in default are liable for action under section 92 of the Companies Act, 203.”
c) The matter was also taken up with the company during the course of the said inspection and the company had submitted its reply stating that -“Company has complied with the requirements of section 92 of the Companies Act, 2013. The Company has filed Annual Return for the FY 2018-19. The Company would be approaching competent authority for adjudication/ compounding as permitted under the Companies Act, 2013.”
d) The IO has commented on the reply submitted by the Company that- “It is admitted fact that the company did not file annual within 60 days for the period made on 30.09.2019, 30.09.2020 and 30.09.2021 for which the company is willing for adjudication/ compounding of the said default.
Hence, ROC may be directed to take appropriate action in the matter, if company fails to comply necessary prosecution may be filed for violation 92 of the Companies Act, 2013.”
e) Accordingly, as per the directions of the competent authority, the adjudication officer has issued adjudication notice vide ROCP/ADJ/SMSKKL/23-24/416-424 dated 26.05.2023 (herein after referred a Adjudication Notice) under Section 454(4) read with 92 of the Companies Act, 2013 read with Rule 3(2) Of Companies (Adjudication of Penalties 2014 to the company and it officers in default for the violation of the provisions of the act as mentioned in para “a” above;
f) No reply as been received to the Adjudication notice from the company.
Further, the IO has already concluded that the company has violated the provision of section 92 of Companies Act, 2013. Further it is observed from the
MCA21 records that the company has filed annual return for FY 2018-19 and 2019-20 prior to, or within thirty days of, the issue of the notice by the adjudicating officer, hence company is not liable to pay penalty for the period made on 2018-19. and 2019-20. However, the company has not filed annual return for. the FY 2020-21 prior to, or within thirty days of, the issue of the notice by the adjudicating officer the company and officer are in default are liable for action.
4. Relevant provisions of the Companies Act, 2013:
Section 92(1) Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding—
(a) Its registered office, principal business activities, particulars of its holding, subsidiary and associate companies ;
(b) Its shares debentures and other securities and shareholding pattern ;
(c) Its indebtedness.
(d) Its members and debenture-holders along with changes therein since the close of the previous Financial year ;
(e) its promoters, directors, key managerial personnel along with changes therein since the close of the previous financial year ;
(f) Meetings of members or a class thereof Board and its various committees along with attendance Details ;
(g) Remuneration of directors and key managerial personnel ;
(h) Penalty or punishment imposed on the company, its directors or officers and details of Compounding of offences and appeals made against such penalty or punishment;
(i) Matters relating to certification of compliances, disclosures as may be prescribed ;
(j) Details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them ; and
(k) Such other matters as may be prescribed,
and signed by a director and the company secretary, or where there is no company secretary, by a company secretary in practice:
Provided that in relation to One Person Company and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.
(2) The annual return, filed by a listed company or, by a company having such paid-up capital and turnover as may be prescribed, shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act.
(3) An extract of the annual return in such form as may be prescribed shall form part of the Board’s report.
(4) Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held Together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed, within the time as specified, under section 403.
(5) If any company fails to file its annual return under sub-section (4), before the expiry of the period specified therein, such company and its every officer who is in default 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 [two, lakh rupees in case of a company and fifty thousand rupees in case of an officer who is an default].
(6) If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made thereunder, he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.
Provisions of section 454 (3) of Companies Act, 2013
Provided that in case the default relates to non-compliance of sub-section (4) of section 92 or sub-section (1) or sub-section (2) of section 137 and such default has been rectified either prior to, or within thirty days of the issue of the notice by the adjudicating officer, no penalty shall be imposed in this regard and all proceedings under this section in respect of such, default shall be deemed to be concluded.
5. ORDER:
a. considering the above facts of the case and the relevant provisions; the undersigned now hereby pronounces the order. Further, the delay in the issuance of the order is on account of checking MCA21 records; other administrative reasons.
b. The company and its officers, who have defaulted the provisions of section 92(4) of the Act for non-filling of annual return for the financial year 2020-21 by not filing the annual return within the due date i.e 29.01.2022. The company has filed its annual return for FY 2020-21 on 06.07.2023. Further, by not filing the annual return prior to, or within thirty days of, the issue of the notice (date of adjudication notice-26.05.2023) by the adjudicating officer for which liable for penalties under section 92(5) of the Act.
c. In exercise of the powers conferred on the undersigned vide Notification dated 24th March, 20 15 and having considered the facts and circumstances of the case and after taking into account e factors mentioned herein above, I do hereby impose the penalty on the company and its Officers in default pursuant to rule 3(12) of Companies (Adjudication Of Penalties) Rules, 2014 d the proviso of the said Rule and Rule 3(13) bf Companies (Adjudication Of Penalties) Rules, 2014 r/w General Circular o.01/2020 dated 02.03.2020; as per table below for violation of section 92(4) of the Act:-
For the FY-2020-211 date of filing of Annual Return -06.07.2023
|
Period of default |
No. of days of default | Penalty imposed on company / director (s) | Designation | First default (In Rs) | Default continues (In Rs) | Total / Maximum penalty (In Rs) |
| *30.01.2022 to 05.07.2023 | 521 | SITARAM MAHARAJ SAKHAR KARKHANA (KHARDI) LIMITED | Company | 10000 | 100*520 | 6200 |
| 30.01.2022 to 05.07.2023 | 521 | RAJLAXMI RAVIRAJ GAIKWARD | CEO (KMP) | 10000 | 100*520 | 5000 |
| 30.01.2022 to 31.07.2022 | 182 | **ROHIT RAJA KUNDANI | Company Secretary | 10000 | 100*181 | 28100 |
| 01.08.2022 to 05.07.2023 | 338 | ***NISHANT SHARMA (from 01.08.2022) | Company Secretary | 10000 | 100*337 | 43700 |
| 30.01.2022 to 05.07.2023 | 521 | RAJU SAVAKAR SURYAWANSHI | CFO (KMP) | 10000 | 100*520 | 50000 |
(*30.01.2022 -Due of commencement of default) (**Cessation date -01.08.2022) (***appointment date 01.08.2022)
d. I am of the opinion that penalty so imposed is commensurate with the aforesaid failure committed by the notice (s).
e. The Noticee(s)/applicant(s) shall pay the penalty so imposed through Ministry of Corporate Affairs portal only as per rule 3(14) of Companies (Adjudication Of Penalties) Rules, 2014.
f. Appeal against this order may be filed under section 454(5) of the Act, in writing with the Regional Director (Western Region), Ministry of Corporate Affairs100, Everest, 5th Floor, Netaji Subhash Road, Marine Drive, Mumbai-400002, 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 a certified copy of this order. [Section 454 of the Act read with Companies (Adjudication of Penalties) Rules, 2014 as emended by Companies (Adjudication of Penalties) Amendment Rules, 2019.
g. Your attention is also invited to section 454 (8) )(ii) of the Act regarding consequences of non-payment of penalty within the prescribed time limit of 90 days from the date of the receipt of copy of this order in terms of the provisions of section 454(8)(i) of the Act.
h. In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to Sitaram Maharaj Sakhar Karkhana (Khardi) Limited and all director /officers in default mentioned herein above and also to Office of the Regional Director (Western Region), and Ministry Corporate Affairs at New Delhi.
(Mangesh Jadhav, ICLS)
Adjudicating Officer
Registrar of Companies
Maharashtra, Pune
