All companies are required to file annual financial statements and annual returns to ROC, no one is relaxed from the annual compliances, even a One Person Company is required to comply with it. Apart from filing of financial statements and annual return, OPC companies also need to comply with several other provisions, like appointment of Auditors, Directors, further, like any other company it also needs to pass Ordinary Resolutions & Special Resolutions, under the provisions of the Companies Act, 2013. Any company can easily call AGMs and EGMs and pass various resolutions. Filing of the annual financial statements and annual returns also based on the date of AGM. So, anyone can have a doubt in his mind: what are the due dates of filing Form AOC-4, MGT-7, ADT-1 etc. and how does the OPC conduct an AGM?
Let’s analyse these criticalities:
Question: What is the due date of AGM & filing of Form AOC-4, MGT-7 & ADT-1 for an OPC?
Text of Section 137(1), third proviso for filing Form AOC-4 in respect of an OPC:
Provided also that a One Person Company shall file a copy of the financial statements duly adopted by its member, along with all the documents which are required to be attached to such financial statements, within one hundred eighty days from the closure of the financial year.
Text of Section 92(4)
(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.
Text of the third proviso to Section 139:
Provided also that the company shall inform the auditor concerned of his or its appointment, and also file a notice of such appointment with the Registrar within fifteen days of the meeting in which the auditor is appointed.
Except Section 137, almost all provisions will have requirements to file within a prescribed time limit from the date of AGM or date of passing of the resolution, even for an OPC. Section 96 governs holding of AGM, and the provision itself does not apply to OPC, as it starts with wordings, “(1) Every company other than a One Person Company shall in each year hold in addition to any other meetings…” so the provision of AGM itself says, all companies apart from OPCs shall hold AGM every year, obviously because a sole member cannot constitute a “meeting”, at least two persons are required to constitute and qualify the test of “meeting”. If the AGM concept is not applicable to OPC then how to comply with various filings under the Act? Section 122 has an answer to it. Before moving ahead, it is needed to be clarified that, unlike the provision of AGM i.e as Section 96 does not apply to the OPCs, Section 100 for EGM does not contain any such relaxation, however, Section 122(1), states that Sections 98 and Sections 100 to 111 (both inclusive) does not apply to the OPCs.
First of all, filing of Form AOC-4, the third proviso to Section 137(1), the focus should be on two expressions used in the language:
1. financial statements duly adopted by its member
2. within one hundred eighty days from the closure of the financial year.
What does duly adopted means?, Section 122(3) provides that in case of an OPC, requiring transaction of any business as Ordinary or Special at a AGM or an EGM, can be transacted, if the resolution, ordinary or special, is communicated to the OPC by its sole member in writing and the OPC enters it into the minutes book maintained in terms of Section 118 within 30 days of the receipt of the resolution and the same shall be signed and dated by the member, the date of signing by the member SHALL BE DEEMED AS DATE OF AGM or an DATE OF EGM.
Therefore, the date of AGM for the purpose of any provision is the date of AGM and accordingly date of filing resolutions shall be reckoned. But there is slight difference in filing due date of Form AOC-4 for an OPC and a company otherthan an OPC, for companies other than an OPC within 30 days of AGM Form AOC-4 shall be filed, but in case of an OPC 30 days from AGM is not applicable. It has to file within 180 days from the closure of the financial year, i,e every year the due date of filing Form AOC-4 will remain the same, 27th of September.
The other important aspect for filing Form AOC-4 is adoption of the financial statements, by its Sole Member. In case of companies otherthan OPC, adoption of audited annual accounts in AGM is required. The OPC can do so, if the resolution for due adoption of annual accounts is communicated to OPC and the OPC shall record it in minutes and shall get it signed, the date of sign is the AGM date, but it is not bound to file within 30 days of the date of signing the minutes.
For Example, ABC (OPC) Pvt Ltd, gets its annual accounts audited on 1st of May, and the member gives resolution for the due adoption of such audited accounts on same day and signed the minutes, the deemed date of AGM is 1st May, but the time limit available to file Form AOC-4 to the OPC is upto 27th September. But, for filing Form MGT-7 under Section 92(4), the due date will be 29th June, i.e 60 days from the date of signing of Minutes of AGM as the date of signing is the deemed date of AGM, accordingly, due date for filing Form ADT-1 for filing appointment of the Auditor is 15th May. Also 1st May, shall be mentioned in any Form to be filed to ROC where AGM date is required to be mentioned.
Due date of AGM for an OPC – As the third proviso to Section 137(1), provide that, an OPC shall file its duly adopted audited annual financial statements shall be filed till 27th September, the OPC is under obligation to complete the recording of all requisite AGM business in its minutes book till 27th September and NOT LATER THAN THAT DATE, and by this reason the date by which recording of resolutions and matters of AGM in minutes book and signing thereof, shall also be deemed as the last date of AGM, the third proviso to Section 137(1) shall be read with sub-section (3) of Section 122, both the provisions cannot be read alone. Therefore, the DEEMED due date of AGM for an OPC is 27th September every year.
Due dates for filing Form AOC-4, MGT-7 & ADT-1 – As the deemed due date is 27th September, the due dates for filing the Annual Forms are as follows:
Form AOC-4 – 27th September
Form ADT-1 – 11th October (15 days from 27th September)
Form MGT-7 – 25th November (60 days from 27th September)
Let’s analyse once, Section 122(3)
Text of the provision:
(3) For the purposes of section 114, any business which is required to be transacted at an annual general meeting or other general meeting of a company by means of an ordinary or special resolution, it shall be sufficient if, in case of One Person Company, the resolution is communicated by the member to the company and entered in the minutes-book required to be maintained under section 118 AND signed and dated by the member and such date shall be deemed to be the date of the meeting for all the purposes under this Act.
Meaning of the words, “for all the purposes under this Act”, Any provision requiring any company to exercise any power in AGM, it will be sufficient if the resolution is recorded and signed in accordance with Section 122(3), and if such resolution is resolution is required to be reported in any prescribed form, the due date shall be reckoned accordingly.
Question: What is the due date of the filing Form ADT-1 by an OPC who had appointed Statutory Auditor in 2020? Can OPC take benefit under the blanket extension allowed during the COVID-19 period?
Many of us are a bit confused, can an OPC take advantage of the extension of AGM as provided by ROC?, the simple answer is NO. Because, the AGM provision is not applicable to OPC, so, the extension of AGMs by ROC is of no use and the OPC have to complete their audits and filing of Form AOC-4 by 27th September. That means, the Sole Member shall sign the minutes till 27th September, 2020 and cannot take benefit of extension and complete till 31st December, 2020.
Further, no circular has been issued allowing relaxation to the OPC, from compliance of mandatory recording of the adoption of accounts till 27th September. Hence the deemed due date of AGM was 27th September, 2020.
However, pursuant to Companies Fresh Start Scheme, 2020 (CFSS-2020) all defaulted companies, including OPCs, can file all the Forms till 31st December, 2020. Hence, it can be said that the deemed date of AGM for the year 2020 was 27th September, 2020 and the last date upto which the Form ADT-1 could be filed was 31st December, 2020 without any additional fees.
Not only Form ADT-1, but Forms AOC-4 & MGT-7 and any other forms, except Form SH-7 (for effecting increase in authorised capital) and charge related forms which were excluded from CFSS-2020, could have been filed till 31st December, 2020 and any filing beyond that shall be liable for additional fees to be calculated from the original due dates, i.e 27th September, 11th October & 25th November, for Forms AOC-4, ADT-1 & MGT-7 respectively.
Unlike other companies, the due date of overdue filings was available till 31st December, 2020 even for financial year 2019-20. Therefore, one can advise to file all annual e-forms as soon as possible to avoid heavy additional fees.
Prepared by CS Tejas Patel, Practicing Company Secretary. The author can be contacted at [email protected]
Disclaimer: No part of this document shall be construed as a professional advice as it has been prepared solely for the purpose of knowledge enhancing.