I have chosen the topic “CLOSING DOWN THE COMPANY”. This word is not found in the bare act or in any rules, sections etc. In most of the cases, we found the companies are closely held companies generally known as LALA Companies. And when they does not carry any business or fed up with legal formalities of the company, they just say that “WE WANT TO CLOSE THE COMPANY”. They are not aware what is Strike Off or Winding up of the company. So keeping in view their interest, the topic has been chosen to make such stakeholders easily understandable the article.
Now if we go for the bare language, for closing down the company there are 2 concepts:
(i) Strike off the name of company (very popular name is SECTION 560, which was under Companies Act 1956 and hopefully take time for Professional and stake holders to change the same into SECTION 248 or afterwards striking off was familiar with name FTE)
(ii) Winding up of the company either in one way or another way i.e. voluntarily or under any other provisions of the Act
Here in today’s article, I shall emphasis over the HOT WORD of the day STK-2, which has been made available Today i.e. April 05, 2017 by Ministry of Corporate Affairs on portal of mca.gov.in. Yes, we are talking about striking of the name of the company from register of the companies.
(a) If a company has failed to commence its business within one year of its incorporation, or
(b) The subscribers to the memorandum have not paid the subscription which they had undertaken to pay within a period of one hundred and eighty (180) days from the date of incorporation of a company and a declaration under section 11(1) to this effect has not been filed within one hundred eighty (180) days of its incorporation;
(c) A company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section of 455.
An application under sub-section (2) of section 248 on behalf of a company shall not be made if, at any time in the previous three months, the company –
(a) has changed its name or shifted its registered office from one State to another;
(b) has made a disposal for value of property or rights held by it, immediately before cesser of trade or otherwise carrying on of business, for the purpose of disposal for gain in the normal course of trading or otherwise carrying on of business;
(c) has engaged in any other activity except the one which is necessary or expedient for the purpose of making an application under that section, or deciding whether to do so or concluding the affairs of the company, or complying with any statutory requirement;
(d) has made an application to the Tribunal for the sanctioning of a compromise or arrangement and the matter has not been finally concluded; or
(e) is being wound up under Chapter XX, whether voluntarily or by the Tribunal.
Moreover, Following categories of companies shall not be removed from the register of companies under section 248 read with rule 3 and 4 of companies (Removal of name of companies from register of companies) Rules 2016, namely:-
(i) listed companies;
(ii) companies that have been delisted due to non-compliance of listing regulations or listing agreement or any other statutory laws;
(iii) vanishing companies;
(iv) companies where inspection or investigation is ordered and being carried out or actions on such order are yet to be taken up or were completed but prosecutions arising out of such inspection or investigation are pending in the Court;
(v) companies where notices under section 234 of the Companies Act, 1956 (1 of 1956) or section 206 or section 207 of the Act have been issued by the Registrar or Inspector and reply thereto is pending or report under section 208 has not yet been submitted or follow up of instructions on report under section 208 is pending or where any prosecution arising out of such inquiry or scrutiny, if any, is pending with the Court;
(vi) companies against which any prosecution for an offence is pending in any court;
(vii) companies whose application for compounding is pending before the competent authority for compounding the offences committed by the company or any of its officers in default;
(viii) companies, which have accepted public deposits which are either outstanding or the company is in default in repayment of the same;
(ix) companies having charges which are pending for satisfaction; and
(x) companies registered under section 25 of the Companies Act, 1956 or section 8 of the Act.
(i) Indemnity bond duly notarized by every director in Form STK 3 and if the person is a foreign national or non-resident Indian, the indemnity bond, and declaration shall be notarised or appostilised or consularised (as per rule 8);
(ii) a statement of accounts containing assets and liabilities of the company made up to a day, not more than thirty (30) days before the date of application and certified by a Chartered Accountant;
(iii) An affidavit in Form STK 4 by every director of the company;
(iv) a copy of the special resolution duly certified by each of the directors of the company or consent of seventy five per cent of the members of the company in terms of paid up share capital as on the date of application;
(v) a statement regarding pending litigations, if any, involving the company (it should be given in affidavit format).
1. For striking off the name of the company, a company should not have any assets or liabilities except the Capital on Liability Side and Losses on the Asset Side
2. Company shall hold a meeting of board and pass a resolution for striking off the name of the company and shall call for the meeting of shareholders to get their approval via Special Resolution to strike off the name of the company
3. If Extra Ordinary Meeting is not being held by the company, the directors need to obtain the consent of seventy five (75%) per cent. Members in terms of paid-up share capital
4. File the E Form STK-2 along with the prescribed fee for removing the name of the company from the register of companies
5. the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner (as per section 248(1) read with rule 4).
6. Manner of publication of notice:–
As per Rule 7 of Companies (Removal of Name of Companies from Register of Companies) Rules, 2016:
(i) The notice under sub-section (1) or sub-section (2) of section 248 shall be in Form STK 5 or STK 6, as the case may be, and be –
(ii) placed on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this regard;
(iii) published in the Official Gazette;
(iv) published in English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper, both having wide circulation in the State in which the registered office of the company is situated.
Provided that in case of any application made under sub-section (2) of section 248 of the Act, the company shall also place the application on its website, if any, till the disposal of the application.
7. The Registrar of Companies shall, simultaneously intimate the concerned regulatory authorities regulating the company, viz, the Income-tax authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking off the names of such companies and seek objections, if any, to be furnished within a period of thirty days from the date of issue of the letter of intimation and if no objections are received within thirty days from the respective authority, it shall be presumed that they have no objections to the proposed action of striking off or removal of name.
CONCLUSION: SO the companies which were waiting for getting closed down, for the last 3 months, time has come to file their documents for closure of their company and get rid of the complexities of the compliances of Registrar of Companies. Moreover, in last few days, ROC has issued a no. of notice to the companies which are not complying the act in Form STK-1, even all such companies are also eligible file their documents and get their names struck off from the Register of Companies.
The Author: CS Mohit Saluja, is a company secretary in Practice and doing regular Practice at NCLT Chandigarh and can be contacted at 99145-58709 or via email@example.com)