ICAI FAQs on Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013

Corporate Laws & Corporate Governance Committee of the Institute of Chartered Accountants of India issued and FAQs dated 19.06.2020 on MCA Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013.

Under the Companies Fresh Start Scheme, 2020 as laid out in the General Circular No. 12/2020, dated 30.03.2020, the benefit of waiver of additional fees was not extended to the charge related documents.

In this regard the Ministry of Corporate Affairs has introduced a new scheme called “Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013”.

The Purpose of the scheme is to condone the delay in filing certain forms related to creation/ modification of charges particularly during the pandemic period.

This has come into effect from 17th June, 2020.

In this regard, the Ministry of Corporate Affairs, Government of India (the MCA), has issued the Circular

The ICAI has prepared and issued FAQs on this Scheme for the benefit of its members and other stakeholder. text of the FAQs is as follows:-

FREQUENTLY ASKED QUESTIONS

Sub: Frequently Asked Questions on Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013 issued by the Ministry of Corporate Affairs, Government of India on 17th June, 2020

The Ministry of Corporate Affairs has issued a Circular 23/2020 dated 17th June, 2020, and has introduced a new scheme called “Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013”.

Under section 77 & 78 of the Companies Act, 2013, the companies or the charge holders are required to file forms related to creation or modification of charges within the timelines as provided, i.e. a total of 120 days of the creation or modification of charge. In case, the company fails to register the charge within the period of thirty days referred to in sub- section (1) of section 77, the charge holder may file the form related to creation or modification of charges under section 78 of the Act, within the overall timelines for filing of such form under section 77.

The Purpose of the scheme is to condone the delay in filing certain forms related to creation/ modification of charges.

Q 1.   What is the Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013?

Ans. Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013 is a scheme introduced by the Ministry of Corporate Affairs for the purpose of condoning the delay in filing certain forms related to creation/ modification of charges particularly during the pandemic period.

Q 2. What is the objective of this Scheme?

Ans. The Scheme has been introduced to provide relaxation of time to Companies for the purpose of condoning the delay in filing certain forms related to creation/ modification of charges under section 77 of the Companies Act, 2013 (Act).

Q 3. Whether this Scheme is permanent? 

Ans. No. It is one-time opportunity. It is available only where the date of creation / modification of charge:

a) is before 01.03.2020, but the timeline for filing such form had not expired under section 77 of the Act as on 01.03.2020, or

b) falls on any date between 01.03.2020 to 30.09.2020 (both dates inclusive).

Q. 4.   For which Forms, the Scheme is applicable?

Ans. The Scheme shall be applicable in respect of filing of Form No. CHG-1 and Form No. CHG-9 (both referred as ‘form’ or ‘forms’) by a company or a charge holder, as per the date of creation / modification of charge. (Refer Q 5.)

Thus, the Scheme is inapplicable to the following forms relating to charges:

CHG-4 Particulars for satisfaction of charge thereof
CHG-6 Notice of appointment or cessation or receiver or Manager

Further, these forms are expressly excluded from the CFSS, 2020 (refer para 6(ix)(f) of the Scheme)

Q. 5. What is the time period for applicability of the Scheme?

Ans. The scheme shall be applicable in respect of filing of Form No. CHG-1 and Form No. CHG-9 by a company or a charge holder, where the date of creation / modification of charge:

(a) is before 01.03.2020, but the timeline for filing such form had not expired under section 77 of the Act as on 01.03.2020, or

(b) falls on any date between 01.03.2020 to 30.09.2020 (both dates inclusive).

Q 6. What is the relaxation provided in case, where the date of creation/modification of charge is before 01.03.2020 but time limit of 120 days has not expired?

Ans. In such a case, the period beginning from 01.03.2020 and ending on 30.09.2020 shall not be taken into consideration for the purpose of counting the number of days under section 77 or section 78 of the Act. Instead, for such cases, the first day after 29.02.2020 shall be reckoned as 01.10.2020 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

Q 7. What is the relaxation provided in case, where the date of creation/modification of charge is between 01.03.2020 to 30.09.2020 (both dates inclusive)?

Ans.  In such a case, the period beginning from the date of creation/ modification of charge to 30.09.2020 shall not be taken into consideration for the purpose of counting of days under section 77 or section 78 of the Act. Instead, for such cases, for the forms not filed within such period, the first day after the date of creation / modification of charge shall be reckoned as 01.10.2020 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

Q 8. What fee shall be charged where the date of creation / modification of charge is before 01.03.2020 but the timeline for filing such form had not expired under section 77 of the Act as on 01.03.2020?

Ans. Under such circumstances, there are two criterias for Fee:

a) If the form is filed on or before 30.09.2020, the fees payable as on 29.02.2020 under the Fees Rules for the said form shall be charged.

b) Further, if the form is filed thereafter, fees shall be paid after adding the number of days beginning from 01.10.2020 till the date of filing plus the time period lapsed from the date of the creation of charge till 29.02.2020.

Q 9. What fee shall be charged where the date of creation / modification of charge falls on any date between 01.03.2020 to 30.09.2020 (both dates inclusive).

Ans. Under such circumstances, there are two criteria’s for Fee:

 a) If the form is filed on or before 30.09.2020, normal fees under the Fees Rules for the said form shall be charged.

b) Further, if the form is filed thereafter, the first day after the date of creation/modification of charge shall be reckoned as 01.10.2020 and the number of days till the date of filing of the form shall be counted accordingly for the purposes of payment of fees under the Fees Rules.

Q 10. For which cases the Scheme is not applicable?

Ans.The Scheme is not applicable under the mentioned circumstances:- 

a) The forms i.e.CHG-1 and CHG-9 had already been filed before the date of issue of this Circular.

b) The timeline for filing the form has already expired under section 77 or section 78 of the Act prior to 01.03.2020.

c) The timeline for filing the form expires at a future date, despite exclusion of the time provided in sub-para A3 & A4 above.

d) Filing of Form CHG-4 for satisfaction of charges.

Chairman and Vice Chairman

Corporate Laws & Corporate Governance Committee.

Source

https://www.icai.org/new_post.html?post_id=16615&c_id=219

https://resource.cdn.icai.org/59986clcgc48878.pdf

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