In this Article author shall discuss a very common point of Companies Act, 2013 that is in relation to Calculation of Due Date of Annual Forms. The question are followings:
1. Whether Date of AGM shall be include/ excluding while calculating the Due Date of e-form?
2. What is the Due Date of AOC-4, MGT-7, ADT-1 and DIR-12
3. Consequences of filing of e-forms after Due Date?
PROVISION OF THE LAW
A. Due Date of AOC-4: (1) A copy of the financial statement ,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 AOC-4, with such fees or additional fees as may be prescribed
B. Due Date of ADT-1(1): 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.
C. Due Date of MGT- 7(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.
D. Due Date of DIR-12(2): A return containing such particulars and documents as may be prescribed, of the directors and the key managerial personnel shall be filed with the Registrar within thirty days FROM the appointment of every director and key managerial personnel, as the case may be, and within thirty days of any change taking place.
ANALYSIS OF PROVISIONS
As per above mentioned provisions of Companies Act, 2013 we are analyzing the provisions of Due Date for 4 (four) forms of Companies Act, 2013 which are relating to Annual Filing.
Due Date of AOC-4 and ADT-1:
As per above language, one can opine that while calculating the 30 days or 15 days from the AGM due to the word “OF” the date of AGM shall be “include”.
Due Date of MGT-7 and DIR-12:
As per above language, one can opine that while calculating the 60 days or 30 days from the AGM due to the word “FROM” the date of AGM shall be “Exclude”.
CALCULATION OF DUE DATE
On the basis of above provisions and interpretation lets find out Due Date on the basis of a hypothetical situation:
Eg: Divesh Solutions Private Limited held their Annual General Meeting on 30th September 2022. In the AGM Director has been regularized, auditor has been appointed, financial has been adopted. What shall be due date of all the forms?
|AOC-4||Date of AGM||30 days of AGM||Calculation||Due Date|
|1 Oct- 29 Oct||29th October|
|MGT-7||Date of AGM||60 days from AGM||Calculation||Due Date|
|30-Sep-2022||AGM + 60days||31 Days Oct + 29 Day Nov||29th November|
|ADT-1||Date of AGM||15 days of AGM||Calculation||Due Date|
|1 Oct- 14 Oct||14th October|
|DIR-12||Date of AGM||30 days from AGM||Calculation||Due Date|
|1 Oct- 30 Oct||30th October|
Que: Consequences of filing of e-forms after Due Date?
|S. No||Form No.||Additional Fees||Penalty|
|1.||AOC-4||Rs. 100 per day after Due Date||As per the Section 137|
|2.||MGT-7||Rs. 100 per day after Due Date||As per the Section 92|
|3.||DIR-12||Two time of additional fees upto 30 days from Due Date||As per the Section 450|
|4.||ADT-1||One time of additional fees upto 15 days from Due Date||As per the Section 139|
After Analysis of above-mentioned provisions of Company Law along with their interpretation one can opine that there is very minor difference between language of provisions like OF AND FROM. This OF and FROM changing the complete calculation of Due Date of above mentioned four forms.
Therefore, everyone should carefully interpret OF and FROM while calculating the due dates of the forms.
Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at firstname.lastname@example.org).