When any application/ document required to be filed with the Central Government or with Registrar and if it is not done within the time limit as specified in the respective provisions under the Companies Act, 2013 then there is need to follow the a separate procedure for Condonation of delay.
As we all know that for each application or form, there is a time limit is fixed by the provision of the law within which it is to be made or filed. If the same is not done for which the time limit is given, however the same may be done by paying the additional fee as per Section 403 of the Companies Act, 2013 read with Companies (Registration, office and fees) Rules, 2014.
Section 460 of the Companies Act, 2013 deals with Condonation of delay in certain cases (corresponds to Section 637B of the Companies Act, 1956. Section 460 of the Companies Act, 2013 came into force from September 12, 2013. It seeks to provide that whenever any application is to be made to Central Government or any document is required to be filed with Registrar within specified time, the Central Government may, after recording the reasons for delay, condone the delay.
Section 460 of the Companies Act, 2013
Notwithstanding anything contained in this Act,—
|New Amendment- Section 460 is also applicable to Limited liability Partnership (LLP):
MCA vide its notification dated 30th January 2020, in exercise of the powers conferred by sub-section (1) of section 67 of the Limited liability Partnership Act, 2008 (6 of 2009), the Central Government hereby directs that the provisions of section 460 of the Companies Act, 2013 (18 of 2013) shall apply to a limited liability partnership from the date of publication of this notification in the Official Gazette. The said amendment shall come into force from the date of Official Gazette i.e. 30th January, 2020.
Link of the notification:
In para 22.3 of Company Law Committee report provides that “The Committee also felt that it may be clarified (in the Rules) that, irrespective of the delay, obtaining condonation of delay is not a pre-requisite to filing a document. It is a separate process under section 460 in respect of all belated filings.”
In reference to Section 430 of the Companies Act, 2013 it is to be noted that immunity provided to companies to file within additional 270 days has been done away with. Therefore, any filing beyond timeline specified in respective section will invite additional fees as well as condonation of delay. Also, the default on two or more occasions in submitting, filing, registering or recording of the document, fact or information will attract higher penalty the minimum being twice the additional fee provided in the Act.
|Procedure for Condolation of delay:
1. Hold a meeting of the Board or pass Board resolution by circulation:
2. File application for condolation of delay with CG in Form CG-1 along with :
3. CG will scrutinize the application and issue the final order for other accepting or rejecting the application.
4. The order passed by CG shall be required to be filed with ROC in Form INC-28 along with the requisite documents and fees as per the directions issued by CG,
5. File the respective documents or forms with ROC for which condolation is done along with requisite documents and fees and SRN of Form INC-28.
Draft Board Resolution:
“RESOLVED THAT pursuant to the provisions of section 460 read with section ——— of the Companies Act, 2013 and rules made thereunder (including any statutory modification/s or re-appointment/s thereof for the time being in force), the consent of the Board be and is hereby accorded to file an application to Ministry of Corporate Affairs (‘MCA’), for condonation of delay in___________________.
RESOLVED FURTHER THAT Mr./Ms. _________, director and __________, Company secretary of the Company be and are hereby jointly/ severally authorized on behalf of the Company, to prepare, execute, sign and file necessary applications(s)/ form(s) with MCA, along with other documents, papers, affidavits, Vakalatnama/ Memorandum of appearance as may be required, to appoint advocates, solicitors, councel or other professionals to appear before MCA, to settle all matters arising out of and incidental thereto, on behalf of the Company and to take all such steps as may be necessary, proper or expedient to give effect to this resolution.”
What if Condonation/ application is not made?
Where the delay is not condoned/ application is not made, this will be specified in the secretarial audit report given in Form MR—3 as well as Certificate in relation to annual return given in Form MGT-8.
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