The Registrar of Companies, Madhya Pradesh, has recently issued a significant adjudication notice concerning M/s. Budhimai India Contractors Company Private Limited, a company registered under the provisions of the Companies Act, 2013. The company, along with its directors, Sh. Pradeep Sharma and Anupama Sharma, faced penalties for non-compliance with the statutory obligation of filing annual returns for the financial years spanning from 2018-19 to 2022-23, as per Section 92(4) of the Companies Act, 2013.
Background of the Case
The case originated from an order issued by the National Company Law Tribunal, Indore Bench, dated 19th October 2023, which directed the restoration of the company’s name to the Register of the Registrar of Companies (ROC). However, despite this directive, the company failed to fulfill its obligation of filing annual returns for the mentioned financial years. Consequently, the Registrar of Companies, Madhya Pradesh, initiated adjudication proceedings under Section 92(4) of the Companies Act, 2013, against the company and its officers in default.
Legal Proceedings and Responses
The company and its officers were duly served show cause notices, following which the company responded citing difficulties such as financial constraints and the lack of business opportunities in their locality. Despite being granted multiple opportunities to present their case, neither the company nor its representatives attended the scheduled hearings.
Imposition of Penalties
Upon careful consideration of the facts and circumstances of the case, the adjudicating officer concluded that the company and its officers were indeed in default and thus liable for penalties under Section 92(5) of the Companies Act, 2013. Penalties were imposed for each financial year from 2018-19 to 2022-23, with detailed calculations provided for each period of default.
Penalty Amounts and Payment
The penalties imposed were commensurate with the duration of default and were directed to be paid within 60 days from the date of the order. Additionally, the penalties were to be remitted through the Ministry of Corporate Affairs portal. The company was instructed to file Form INC-28 along with the copy of the adjudication order and payment challans as per the provisions of the Act.
Appeals and Further Actions
Any aggrieved party was given the right to appeal the order within 60 days from the date of receiving the order. Failure to comply with the order within 90 days could result in further fines or even imprisonment as per the relevant sections of the Companies Act, 2013. Furthermore, the order explicitly stated that it did not prejudice the rights of the Registrar of Companies to initiate separate actions for any other contraventions or offenses.
Conclusion
The adjudication notice served as a stern reminder of the legal obligations imposed on companies and their officers under the Companies Act, 2013. Non-compliance with such obligations can result in significant penalties, emphasizing the importance of timely adherence to statutory requirements. The case also highlighted the stringent enforcement mechanisms in place to ensure corporate compliance and accountability within the Indian regulatory framework.
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GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
Office of The Registrar of Companies, Madhya Pradesh
Sanjay Complex, ‘A’ Block, 3rd Floor,
Jayendraganj, Gwalior — 474009.
E.mail: roc.gwalior@mca.gov.in
No. ROC-G/Adj. Pen./u/s. 92(4)/Budhimai/4012 Dated: 22 MAR 2024
1. M/s. Budhimai India Contractors Company Private Limited, House No. 205, Peptech City, Sohawal, Satna 485001, M.P.
2. Sh. Pradeep Sharma S/o. Sh. Krishna Narayan Sharma, director
3. Anupama Sharma D/o. Sh. Naval Kishore Dubey, additional director
4. Regional Director, North-Western Region, Ministry of Corporate Affairs Ahmedabad (Gujarat).
5. governance cell for uploading the documents.
In the matter of Companies Act, 2013
And
In the matter of adjudication proceeding under sub-section (4) of
Section 92 of the Companies Act, 2013.
And
In the matter of M/s. Budhimai India Contractors Private Limited
(CIN- U74120MP2014PTC032439)
Date of hearing 19th March, 2024
Appointment of adjudicating officer:
1. Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad.II dated 24.03.2015 appointed undersigned as adjudicating officer in exercise of the powers conferred by Section 454 of the Companies Act, 2013 (hereinafter known as “Act”) read with Companies (Adjudication of Penalties) Rules, 2014 for adjudicating penalties under the provisions of this Act.
Company:
2. Whereas company Budhimai India Contractors Private Limited (CIN- U74120MP2014PTC032439) herein after known as company] is a registered company with this office under the provisions of Companies Act, 2013 having its registered office situated at House No. 205, Peptech City Sohawal, satna 485001, M.P. as per the MCA website.
|
Sl. |
Particulars | Details |
| 1. | Paid-up capital (F.Y. 2015-16) | 1,00,000 |
| 2. | Turnover | |
| a. Revenue from operation | 2,00,000 | |
| b. Other income | 0 | |
| 3. | Holding company | NO |
| 4. | Subsidiary company | NO |
| 5. | Whether company registered under Section 8 | NO |
| 6. | Whether company registered under any other Special Act | NO |
Facts about the case:
3. Whereas, the National Company Law Tribunal, Indore Bench vide its order dated 19.10.2023 passed in CP No. 17/2023 has ordered that the restoration of the company’s name to the Register of the ROC is ordered subject to its filing of all outstanding documents with proper filing fees alongwith additional fees required under law and competition of all formalities including payment of any late fee. In view of the above and information available on MCA21 data base, the status of the company has been changed from struck-off to Active. But the company has not filed its annual return for the financial year from 16-17 to 17-18 and from 2018-19 to 2022-23 under Section 92(4) of the Companies Act, 2013. Hence, it appears that company and its officers in defaults has violated the provisions of Section 92(4) of the Companies Act, 2013 and are liable for penal u/s. 92(5) of the Companies Act, 2013 for financial year 2018-19 to 2022-23.
4. Subsequently, this office had issued show cause notice U/s. 92(4) to the company and its officers in default vide No. ROC-G/Adj.Pen./u/s. 92(4)/ Budhimai/ 3561 to 3563 dated 06.02.2024.
5. In response of notice dated 06.02.2024, the office has received a letter dated 12.02.2024 from the company therein they have stated that “directors of the company have proper carrying out the business and continue comply all the statutory rules and regulation related to companies Act and other applicable law as time to time. They have also prepared all annual return and audited balance sheet of last pending year, due non-availability of business in market & financial crunch of fund, company running on loss. Company belongs to small town city and there is lack of business in small town now they arranging fund to file all the annual returns till date 31.03.2024 and had requested to adjudicating officer for waiving penalty & relaxation on period of filing and allow for last 3 years”.
6. Thereafter, “Notices of Inquiry” vide No. ROC-G/Adj. Pen./u/s. 92(4)/Budhimai/3858 to 3860 dated 06.03.2024 were issued to the company and its officers in default. As per [Rule 3(3), companies (Adjudication of Penalties) Rules, 2014 and the date of hearing was fixed son 21.03.2024 at 3.30 P.M. P.M. in the office of Registrar of Companies, Madhya Pradesh, Sanjay Complex, A-Block, 3rd Floor, Jayendraganj, Gwalior.
7. As per information available on MCA21 data base, the company has not filed its annual return for the period from 2018-19 to 2022-23.
8. On the date of hearing i.e. 21.03.2024, no person or representative of the company has attended the hearing.
9. Order:
Having considered the facts and circumstances of the case and after taking into account the factors above and letter dated 06.02.2024 and 06.03.2024 issued by ROC, Gwalior, it is concluded that the company is liable for penalty as prescribed under Section 92(5) of the Act for the financial year 2018-19 to 2022-23 viz. Budhimai India Contractors Company Private Limited, in terms of Section 92(4) of the Act.
10. Accordingly, I am inclined to impose a penalty as prescribed under Sub-section 5 of section 92 of the Companies Act, 2013. The details of the penalty imposed on the company and officers in default are shown in the table below:
| Financial year | Period | No. of days of defaults |
| 2018-19 | 29.11.2019 to 21.03.2024 | 1574 |
| 2019-20 | 29.11.2020 to 21.03.2024 | 1209 |
| 2020-21 | 29.11.2021 to 21.03.2024 | 844 |
| 2021-22 | 29.11.2022 to 21.03.2024 | 479 |
| 2022-23 | 29.11.2023 to 21.03.2024 | 114 |
(Penalty amount for Annual Return u/s. 92 for financial year 2018-19)
| Nature of default | Relevant section under the Companies Act, 2013 | Name of persons on whom penalty is imposed | No. of days of default | Total penalty as per Section 92(5) | Penalty imposed | Penalty imposed as per Section 446B |
| Non- filing of annual return | S. 92(4) | On company | 1574 | Rs. 10,000/-+ (100×1574) Rs. 1,67,400/-.
Maximum penalty |
Rs. 1,67,400 | S3,700/- |
| Pradeep Sharma |
1574 | Rs. 10,000/-+ (100×1574) Rs. 1,67,400/-.
Maximum penalty |
Rs. 50,000/- | 25,000/- | ||
| Anupama Sharma |
1574 | Rs. 10,000/-+ (100×1574) Rs.1,67,400/–.
Maximum penalty |
Rs.50,000/- | 25,000/- |
(Penalty amount for Annual Return u/s. 92 for financial year 2019-20)
| Nature of default | Relevant section under the Companies Act, 2013 | Name of persons on whom penalty is imposed | No. of days of default | Total penalty as per Section 92(5) | Penalty imposed | Penalty imposed as per Section 446B |
| Non- filing of annual return | S. 92(4) | On company | 1209 | Rs. 10,000/-+ (100×1209) Rs. 1,30,900/-.
Maximum penalty |
Rs. 1,30,900 | 65,450/- |
| Pradeep Sharma |
1209 | Rs. 10,000/-+ (100×1209) Rs. 1,30,900/-.
Maximum penalty |
Rs. 50,000/- | 25,000/- | ||
| Anupama Sharma |
1209 | Rs. 10,000/-+ (100×1209) Rs.1,30,900/-.
Maximum penalty |
Rs.50,000/- | 25,000/- |
(Penalty amount for Annual Return u/s. 92 for financial year 2020-21)
| Nature of default | Relevant section under the Companies Act, 2013 | Name of persons on whom penalty is imposed | No. of days of default | Total penalty as per Section 92(5) | Penalty imposed | Penalty imposed as per Section 446B |
| Non- filing of annual return | S. 92(4) | On company | 844 | Rs. 10,000/-+ (100×844) Rs. 94,400/-.
Maximum penalty |
Rs. 94,400/- | 47,200/- |
| Pradeep Sharma | 844 | Rs. 10,000/-+ (100×844) Rs. 94,400/-.
Maximum penalty |
Rs. 50,000/- | 25,000/- | ||
| Anupama Sharma | 844 | Rs. 10,000/-1- (100×844) Rs.94,400/-.
Maximum penalty |
Rs.50,000/- | 25,000/- |
(Penalty amount for Annual Return u/s. 92 for financial year 2021-22)
| Nature of default | Relevant section under the Companies Act, 2013 | Name of persons on whom penalty is imposed | No. of days of default | Total penalty as per Section 92(5) | Penalty imposed | Penalty imposed as per Section 446B |
| Non- filing of annual return | S. 92(4) | On company | 479 | Rs. 10,000/-+ (100×479)
Rs. 57,900/-. Maximum penalty |
Rs. 57,900/- | 28,950/- |
| Pradeep Sharma | 479 | Rs. 10,000/-+ (100×479)
Rs. 57,900/-. Maximum penalty |
Rs. 50,000/- | 25,000/- | ||
| Anupama Sharma | 479 | Rs. 10,000/-+ (100×479)
Rs.57,900/-. Maximum penalty |
Rs.50,000/- | 25,000/- |
(Penalty amount for Annual Return u/s. 92 for financial year 2022-23)
| Nature of default | Relevant section
under the |
Name of persons on whom penalty is imposed | No. of days of default | Total penalty as per Section 92(5) | Penalty imposed | Penalty imposed as per Section 446B |
| Non- filing of annual return | S. 92(4) | On company | 114 | Rs. 10,000/-+ (100 x 114) Rs.21,400/-.
Maximum penalty |
Rs. 21,400/- | 10,700/- |
| Pradeep Sharma | 114 | Rs. 10,000/-+ (100 x 114) Rs. 21,400/-.
Maximum penalty |
Rs.21,400/- | 10,700/- | ||
| Rs. 50,000/- | ||||||
| Anupama Sharma | 114 | Rs. 10,000/-+ (100×114) Rs. 21,400/-.
Maximum penalty |
Rs. 21,400/- | 10,700/- |
11. I am of this opinion that penalty is commensurate with the aforesaid failure committed by the notice and penalty so imposed upon the officers-in-default shall be paid from their personal sources/income. It is further directed that penalty imposed shall be paid through the Ministry of corporate Affairs portal only as mentioned under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 under intimation to this office.
12. The penalty amount shall be remitted by the company through MCA21 portal within 60 days from the date of order. The company needs to file INC-28 as per the provisions of the act attaching the copy of adjudication order alongwith payment challans.
13. Any person aggrieved by the order of adjudicating authority under Section 3 of Section 454 may prefer an appeal to the Regional Director having jurisdiction in the matter.
14. Every appeal under sub-section (5) of section 454 shall be filed within 60 days from the date on which the copy or order made by the adjudicating authority is received by the aggrieved person and shall be in such form, manner and be accompanied by such fee as may be prescribed.
15. As per Section 454(8) (i) where a company fails to comply with the order made under sub-section (3) or sub-section (7) as the case may be within a period of 90 days from the date of receipt of the copy of the copy of the order, the company shall be punishable with fine which shall not be less than twenty five thousand but which may extend to five lakh rupees.
16. Where an officer of a company or any other person who is in default fails to comply with the order made under subsection (3) or sub-section (7) as the case may be within a period of 90 days from the date of receipt of the order such officer shall be punishable with imprisonment which may extend to six months or with the fine which shall not be less than twenty five thousands rupees but which may extend to one lakh or with both.
17. This order is without prejudice to the rights available to this office to initiate separate action including but not limited to the penal actions for contraventions of related, incidental and/or continuing offences/contraventions.
18. In terms of the provisions of sub-rule 3 of the Companies (Adjudication of Penalties) Rules, 2014 copy of the order is being sent to M/s. Budhimai India Contractors Company Private Limited, House No. 205, Peptech City, Sohawal, Satna 485001, M.P., Sh. Pradeep Sharma S/o. Sh. Krishna Narayan Sharma, director, Anupama Sharma D/o. Sh. Naval Kishore Dubey, additional director, Regional Director, North-Western Region, Ministry of Corporate Affairs, Ahmedabad (Gujarat), and E-governance cell for uploading the documents on MCA website.
The adjudication notice stand disposed off with this order.
(Mukesh Kumar Soni, ICLS)
Registrar of Companies,
Madhya Pradesh, Gwalor.
