Analysis of Condonation of delay scheme, 2018

Deepak Singhal

Recently Ministry of Corporate Affairs has cancelled the registration of around 2.10 lakh defaulting companies and subsequent direction of the Ministry of Finance to banks to restrict operations of bank accounts of such companies by the Directors of such companies or their authorized representatives.

MCA in September 2017, identified 3,09,614 directors associated with the companies that had failed to file financial statements or annual returns in the MCA21 online registry for a continuous period of three financial years 2013-14 to 2015-16 in terms of provisions of section 164(2) r /w 167(1)(a) of the Act and they were barred from accessing the online registry and a list of such directors was published on the website of MCA.

As a result of the action taken by the Ministry, the number of cases/ writs have been filed before the various forums of Courts in India and the need has been arise to come up with the detailed scheme by giving an additional chance to make their default good, accordingly the Government has come up with a new scheme called as CONDONATION OF DELAY SCHEME 2018 (CODS) for a initial period of 3 months i.e. 01.01.2018 till 31.03.2018 vide its General Circular No.16/2017 on the 29^th day of December, 2017. This is the second time when Government introduce such kind of another scheme as in the year of 2014 Ministry introduced a Company Law Settlement Scheme, 2014. The detailed procedure of CODS 2018 is written as below:

CODS (Condonation of delay scheme) 2018

Procedure

1. The DINs of the concerned disqualified directors de-activated at present, shall be temporarily activated during the validity of the scheme to enable them to file the overdue documents.

(Inference: by virtue of this scheme the DIN of all disqualified Directors shall be activated on temporarily basis for the initial period of 3 months i.e. if Company fails to avail this scheme within a period of 3 months than after expiry of 3 Months DIN of such Director will get deactivated.)

2. The defaulting company shall file the overdue documents in the respective prescribed e Forms paying the statutory filing fee and additional fee payable as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014 for filing these overdue documents.

(Inference: By virtue of enabling DIN, Company shall file the respective Annual filing e form for the respective Financial Year)

3. The defaulting company after filing documents under this scheme, shall seek condonation of delay by filing form e-CODS attached to the scheme online on the MCA21 portal. The fee for filing application e form CODS is Rs.30,000/- (Rs. Thirty Thousand only).

(Inference: i.e. Form e-cods shall be filed by the Company after filing the overdue documents for the purpose of condonation of delay by paying condonation fees of Rs.30,000/-)

Applicability: This scheme is applicable to all defaulting companies (other than the companies which have been stuck off/ whose names have been removed from the register of companies under section 248(5) of the Act). A defaulting company is permitted to file its overdue documents which were due for filing till 30.06.2017 in accordance with the provisions of this Scheme.

Documents on which Condonation of delay scheme, 2018 shall be applicable

Note:

1. In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN shall be re-activated only NCLT order of revival subject to the company having filing of all overdue documents. (Inference: Primarily the Condonation of delay scheme, 2018 is only for those Companies whose status are active for Annual filing but their Directors are disqualified, but the Companies which has been strike off and the matter has been listed before the Hon’ble NCLT for revival than such Company shall also avail this scheme subject to the order of NCLT).

2. At the conclusion of the Condonation of delay scheme, 2018 i.e. after 31.03.2018, the Registrar shall take all the necessary actions under the Companies Act, 1956 / 2013 against the companies who have not availed themselves of this Scheme and continue to be in default in filing the overdue documents and the DIN of such Directors also deactivated further.

3. The E form CODS 2018 shall be filed by the Company for the condonation of delay after filing all the relevant Annual filling E forms and shall insert all the SRN of relevant E form in the E form CODS 2018. Presently the form is not available on the portal of MCA 21 at mca.gov.in.

Disclaimer: This write up is intended to start academic discussion on significant circular under Companies Act, 2013. It is not intended to be a professional advice. Author accepts no responsibility whatsoever and will not be liable for any losses, claims or damages which may arise because of the contents of this write up.

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