Checklist for Voluntary Revision of Financial statement

Article compiles Checklist for Voluntary Revision of Financial statement or Board’s Report under Section 131 of Companies Act, 2013 keeping in view the NCLT Rules, 2016.

As we all know that on June 01, 2016, Ministry of Corporate Affairs (MCA) had notified the constitution of National Company Law Tribunal and National Company Law Appellate Tribunal and also notified the NCLT Rules, 2016 w.e.f. July 21, 2016.

Keeping in view these rules by aforesaid authority, a Company can voluntary revise the Financial Statements or Board’s Report, if it appears to the Directors of the Company, that:-

a. the financial statement of the Company; or

b. the Board Report

does not comply with the relevant provisions (i.e. section 129 & section 134) may prepare revised financial statement or a revised report in respect of any of the three preceding financial years after obtaining approval of the Tribunal.

Associated Sections:-

1. Section 129: Financial Statements

2. Section 134: Financial Statement, Board Report, etc.

Procedural Aspects:-

1. Issue Notice of Board Meeting

Section 173 (3) of the Companies Act, 2013 & Secretarial Standard (SS-1)

a. Notice

b. Main Agenda of the Meeting:-

– To consider In- Principal approval for revision of financial statement or Board Report of the Company

– To authorise Company Secretary in practice/ practising Chartered Accountant/ Practising Cost Accountant to enter appearance

2. Hold the Board Meeting

Hold the Board Meeting and pass all the resolution mentioned in Agenda.

 3. An application shall be filled in Form No. NCLT-1 together with the particulars contained in Annexure-B

The Directors of the Company, shall fill the form NCLT-1 within fourteen days of the decision taken by the Board. The application shall contain the following particulars as given in Annexure- B, namely:-

(i) Audited financial Statements of relevant period;

(ii) Copies of Memorandum and Articles of Association.

(iii) The details of Managing Director, Chief financial Officer, Directors, Company Secretary and Officer of the Company responsible for making and maintaining such books of accounts and financial Statements.

(iv) Where such accounts are audited, documents in proof of the name and contact details of the auditor or any former auditor who audited such accounts

(v) Copy of Board Resolution passed by the Board of Directors.

(vi) Affidavit verifying the petition.

(vii) Bank draft evidencing payment of application fee.

(viii) Memorandum of appearance with copy of the Board’s Resolution or the executed vakalatnama, as the case may be.

(ix) grounds for seeking revision of financial statement or Board’s Report

(x) Any other relevant document.

4. Advertisement of Petition

While Advertising, following points shall also be compiled with (as per Rule 35 of NCLT Rules, 2016):-

a. Advertise the petition in form NCLT-3A  atleast fourteen days before the hearing, atleast once in vernacular newspaper in the principal vernacular language of the district in which the registered office of the Company is situated and atleast once in English language in an English newspaper circulating in that district.

b. Every such advertisement shall state;-

– the date on which the application, petition or reference was presented;

– the name and address of the applicant, petitioner and his authorised representative, if any;

– nature and substance of application, petition or reference;

– the date fixed for hearing;

– a statement to the effect that any person whose interest is likely to be affected by the proposed petition or who intends either to oppose or support the petition or reference at the hearing shall send a notice of his intention to the concerned Bench and the petitioner or his authorised representative, if any, indicating the nature of interest and grounds of opposition so as to reach him not later than two days previous to the day fixed for hearing.

c. Where the advertisement is being given by the company, then the same may also be placed on the website of the company, if any.

d. An affidavit shall be filed to the Tribunal, not less than three days before the date fixed for hearing, stating whether the petition has been advertised in accordance with this rule and whether the notices, if any, have been duly served upon the persons required to be served:

Provided that the affidavit shall be accompanied with such proof of advertisement or of the service, as may be available.

e. Where the requirements of this rule or the direction of the Tribunal, as regards the advertisement and service of petition, are not complied with, the Tribunal may either dismiss the petition or give such further directions as it thinks fit

f. The Tribunal may, if it thinks fit, and upon an application being made by the party, may dispense with any advertisement required to be published under this rule.

5. Issuance of Notice

The Tribunal shall issue notice and hear the auditor of the original financial statement, if present auditor is different and after considering the application and hearing the auditor and any other person as the Tribunal may deem fit, may pass appropriate order in the matter. (Rule 77(5) of NCLT Rules, 2016)

6. On Receipt of Order

After receiving the Order from NCLT:-

a. A certified copy of the order of the Tribunal shall be filed with the Registrar of Companies within thirty daysof the date of receipt of the certified copy e-form INC-28 (Rule 77(6) of NCLT Rules, 2016).

b. A general meeting maybe called and notice of such general meeting along with reasons for change in financial statements may be published in newspaper in English and in vernacular language (Rule 77(7) of NCLT Rules, 2016).

7. During General Meeting

The revised financial statements, statement of directors and the statement of auditors may be put up for consideration before a decision is taken on adoption of the revised financial statements (Rule 77(8) of NCLT Rules, 2016).

8. Filling of INC-28

On approval of the general meeting, the revised financial statements along with the statement of auditors or revised report of the Board, as the case may be, shall be filed with the Registrar of Companies within thirty days of the date of approval by the general meeting  (Rule 77(9) of NCLT Rules, 2016).

Note:- Please note that such revised financial statement or report shall not be prepared or filed more than once in a financial year.

PETITION FORMAT

FORM NO. NCLT. 1

General Heading for Proceedings

Before the National Company Law Tribunal,

Bench, at ________

In the mater of the Companies Act, 2013

And

In the matter of …… Ltd: (Name of the Company)

Columns required for filing of Original Application/ Reply / Rejoinder / Interlocutory Application or filing of additional documents under directions of the Bench

i. Details of Original Application / Reply / Rejoinder/ Interlocutory Application

Particulars of the Petitioner / Applicant / Respondent and state whether company, whether petitioner or not.

(Name, description, father’s / husband’s name, occupation, capacity, i.e. quashareholder, qua depositor and address)

ii. Jurisdiction of the Bench:

The petitioner declares that the subject-matter of the petition is within the jurisdiction of the Bench

iii. Limitation: (If applicable)

The petitioner / applicant further declares that the petition is within the limitation laid down in section ……. of the Companies Act, 2013 (where applicable)

iv. Facts of the case are given below:

(Concise statement of facts in a chronological order, each paragraph containing as nearly as possible a separate issue, fact or otherwise.)

v. Relief(s) sought.

In view of the facts mentioned above, the petitioner/applicant / respondent prays for the following relief(s):

(Specify below the relief(s) sought explaining the ground for relief(s) and the legal provisions (if any) relied upon)

vi. Particulars of Bank draft evidencing payment of fee for the petition or application made:

Branch of the Bank on which drawn:

Name of the issuing branch:

Demand Draft No………

Date…………..

Amount Rs………..

Date:

(Signature/Signature of Authorised signatory)

Place:

FORM NO. NCLT. 3A

Advertisement detailing petition

[see Rule 68 of NCLT Rules, 2016 ]

Company Petition/Application/Reference No ….. of …

Notice of petition

A petition/application/reference under section 14 of the Companies Act, 2013, for………………….. was presented by ……………………………. on the ……………………………. day of ….. 20 … , and the said petition is fixed for hearing before ………bench of National Company Law Tribunal on …. .20 …Any person desirous of supporting or opposing the said petition/application/reference should send to the petitioner’s advocate, notice of his intention, signed by him or his advocate, with his name and address, so as to reach the petitioner’s advocate not later than ‘two days before the date fixed for the hearing of the petition/application/reference. Where he seeks to oppose the petition/application/reference, the grounds of opposition or a copy of his affidavit shall be furnished with such notice. A copy of the petition/application/reference will be furnished by the undersigned to any person requiring the same on payment of the prescribed charges for the same.

Dated …..

(Sd) …..

(Name) …..

(Advocate for petitioner) Address:

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