Introduction: The Ministry of Corporate Affairs (MCA) has imposed a penalty of Rs. 415,500 on SHYAMAL HOLDINGS AND TRADING LIMITED for failing to file its annual return within the specified time frame, as mandated by Section 92 of the Companies Act, 2013. This article delves into the details of the penalty order and its implications.
1. Violation of Section 92: The company in question failed to submit its annual return for the financial year 2018-19 within the stipulated timeframe, resulting in a default period of 331 days. This non-compliance with Section 92 of the Companies Act, 2013 triggered the penalty.
2. Show Cause Notice: Despite issuance of a Show Cause Notice to the company and its officers, including directors, there was no response received, except from one officer citing personal reasons. The absence of a valid reply led to the imposition of penalties as per the provisions of the Companies Act.
3. Penalty Imposition: The adjudicating officer, appointed by MCA, exercised powers conferred by Section 454 of the Companies Act, 2013, and imposed a penalty of Rs. 415,500 on the company and its officers in default.
4. Individual Liability: The penalty is levied not only on the company but also on its officers, including directors, for their roles in the default. Each officer faces a penalty of Rs. 83,100, in accordance with the rules governing adjudication of penalties.
5. Payment and Compliance: The company and its officers are directed to remit the penalty amount through the Ministry of Corporate Affairs portal within a specified timeframe. Failure to comply may lead to further legal consequences, including fines and prosecution.
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GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES
100, “EVEREST”, MARINE DRIVE
MUMBAI-400 002
Website: www.mca.gov.in
email ID: [email protected]
Order No. ROC(M)/SHYAMALHOLD/ADJ-ORDER/92-/139/675/680/78 Date: 24 APR 2024
Order for Penalty under Section 454 for violation of Section 92 of the Companies Act,2013.
IN THEMATTER OF SHYAMAL HOLDINGS AND TRADING LIMITED
(L67120MH1982PLCO28558)
Appointment of Adjudicating Officer:
1. Ministry of `Corporates Affairs vide its Gazette Notification No. A-42011/112/2014.. Ad II dated 24.03.2015 appointed the undersigned as Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 [herein after know{ as .Act]` read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties –under the provisions of this Act.
Company
2. The Company’-SHYAMAL HOLDINGS AND TRADING LIMITED bearing 120MH1982PLCO28558 (herein after known as ‘Company’) is a registered company with this office under the provisions of the Companies Act, 1956. having its registered office as per MCA master data at address 20 B ATATIBUILDINGALKESH DINESH, MODI MARG FORT, MUMBAI, Maharashtra; 400023, India.
Relevant Provisions: Of the Companies Act, 2013
3. Section: 92= Annual return. — (1) Every company shall prepare a return (hereinafter referred to r as the. annual return) in the prescribed form containing the particulars as they stood on- the Close of the financial year regarding —
(a) its registered: office, principal business activities, particulars of its holding, subsidiary and associate companies;
(b) its shares,’ debentures and other securities and shareholding pattern;
(c) its indebtedness;
(d) its members and debenture-holders along with changes therein, since the close of the previous financial year;
(e) its promoters, directors, key managerial personnel along with changes there since the close of the previous financial year;
(f) meetings of members or a class thereof Board and its various committees long with attendance details;
(g) remuneration of directors and key managerial personnel
(h) penalty or punishment imposed on the company its: directors br compounding of offences and appeals made against such, penalty or:
(i) matters relating to certification of compliances , disclosures as may be punishment
(j) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, address, countries registration and percentage of shareholding held by them; and
(k) such other matters as may be prescribed, and signed by a director and the company secretary,. or where there is :no company secretary, by a company secretary in practice: Provided that in relation to One Person Company.
Provided that relation to one person Company and small company, the annual and return shall be signed by the company secretary, or where is no company secretary by the director of the company
(2) The annual return, filed by- a listed company or by a company having such paid capital or turnover as may be prescribed shall be certified practice in the prescribed form: stating that the annual return disclose the facts correctly and adequately and that the company has complied provisions of this Act.
(3) An extract of the annual return in such form as may be prescribed shall from part of the Board’s report.
(4) Every company shall file with the Registrar a copy days from the date on which the annual general meeting meeting is held in any year within sixty days from the date on with the annual general meeting should have been held together with the statement specifying the reason for not holding the annual general meeting, with such fees pr additional within the time as specified, under section 403
(5) If any company fails to file its annual return otherwise then in the period specified therein, such company and its every liable to a penalty of fifty thousand rupees and in case of continuing failure with further penalty of one hundred rupees for each day during which such failure continues subject to a maximum of five lakh rupees.
(6) If a company secretary in practice. certifies the annual return otherwise than in conformity with the requirements of this section or the rules made there under, her shall be punishable with fine which shall not be less than fifty thousand rupees but which may tend to five lakh rupees.
Facts about the case:-
4. In terms of provisions of Section 92 of the Companies Act, 2013, the Company was required to– file the. Annual Return within sixty days from the date of Annual General Meeting held in pursuance of Section 96 of the Companies Act, 2013.
5. It was observed as per the MCA 21 database, that the Company has defaulted in filing its Annual Return for the Financial Year 2018-19. The company is in non-compliance of. provisions of Section 92 of the Companies Act, 2013 for non-filing of Annual Return for the financial year ended 31.03.2019 with a default period of 331 days. The due date of filing was 29.11.2019, however, the Company failed to file its Annual Return for the. Financial Year 2018-19.
6. Subsequently this office issued a Show Cause Notice to the Company and its officers default, dated 26.10.2020, under Section 454 of the Companies Act, 2013 for adjudication of offence under Section 92(5) of the Companies Act, 2013.
Reply of the Company
7. No. Show Cause been received by this office from the Company and its Officers in default till date.
8. The Show Cause Notice dated 26.10.2020, bearing Consignment No. was sent ‘to SHYAMAL HOLDINGS AND TRADING LIMITED. it Was returned to this office.
9. The Show Show Cause Notice dated 26.10.2020, bearing Consignment No. 961987485IN’, was sent to TIRTHESH RAMANLAL THAKKAR. However, it this Office.
10. The Show Cause Notice dated 26.10.2020, bearing Consignment No. 96190525IN’, was sent to ASHOK KUMAR PANDEY. However, it was fined -to this office.
FINDINGS:
11. As observed from the MCA21 database, the Company has failed to fire the Annual Return within the time prescribed by the provisions of Section92 of the-, Company Act, 2013.
12. It is also observed that no reply has been received from the company and its Officers in Default, except Mrs. Nehal Mehul Parmar: Dhirajlal Parmar), to the Show Cause Notice till–date.
13. Mrs. Nehal Mehul Parmar (Wife of late Mr. Mehul Dhirajlal Parmar) has replied stating that Mr. Mehul Dhirajlal Parmar has passed away on attached the death certificate along with the reply, and no penalty is being levied on her. –
14. As per Section 454 of the Companies Act, 2013 read wit (Adjudication of Penalties) Rules, 2014, if the Company and officers in default fail to reply or neglect or refuse to appear as required, the adjudicating officer may pass an order imposing the penalty, in the absence of such person after recording the reasons for doing so.
15. As per Section 92(5) of the Companies Act,2013 “if any company fails to file its annual return under sub-section (4), before the expiry of the period specified there in such company and its every officer who is in default shall be liable to a penalty-p and in case of continuing failure, with further penalty of fifty thousand rupees; during which such failure continues, subject to a maximum of five lakh rupees” . penalty is being levied on Mr. Tithes Ramanlal Kumar Pandey (Director), Ms. Pratibha Sharma (Director) an (Director).
16. As no reply has been received till date and the violation off been established from the MCA21 database, the following Order is being passed.
17. In exercise of the powers conferred on me vide Notification dated 24.03.2015 and having considered the facts and circumstances Of the case -;:a account the factors mentioned in the relevant Rules, I am of the.613,iniOn:.-t shall be imposed for the default related to11.9n–q*plianPlof:s0aibil-The delay, if any, in passing of the order is due-to—the le in the matter.
18. Having considered the facts and circumstances of the case and after taking into ,the factors above; I hereby impose a penalty of Rs. 83,100/- (Rupees Eighty-Three Thousand and ‘One Hundred only) on Company and its Officers in default, each, ‘,as per table given below for violation of provisions of Section 92 of the Companies Act, 2013.
| No. of days of default (•) | Penalty imposed on company/KMP | First default Penalty in (Rs.) | Default continues Penalty in (Rs.) | Total Penalty levied in (Rs.) | Maximum Penalty in (Rs.) |
| 331 | A Company | 50,000/- | 331 X 100 = 33,100/- | 50,000 + 33,100 = 83,100/- | 5,00,000/- |
| B. Director / KMP
1. TIRTHESH RAMANLAL THAKKAR (DIRECTOR) |
50,000/- | 331 X 100 = 33,100/- | 50,000 + 33,100 =83,100/- | 5,00,000/- | |
| 2. ASHOK KUMAR PANDEY (DIRECTOR) | 50,000/- | 331 X 100 = 33,100/- | 50,000 + 33,100 = 83,100/- | 5,00,000/- | |
| 3. PRATIBHA SHARMA (DIRECTOR) | 50,000/- | 331 X 100 = 33,100/- | 50,000 + 33,100 = 83,100/- | 5,00,000/- | |
| 4. SANJAY CHOHAN (DIRECTOR) | 50,000/- |
331 X 100 = 33,100/- |
50,000 + 33,100 = 83,100/- |
5,00,000/- |
|
| TOTAL | 4,15,500/- | 25,00,000/- |
TOTAL PENALTY PAYABLE :- Rs. 4,15,500/-
(•) The of vibration of provisions under Section 92 of the Companies Act, 2013 19 till 25.10.2020. As per signatory details available on MCA21 e’–above-mentioned individuals were Officers in default during the violation.
(•) Due date of filling 29,11.2019 and Annual Return has not been filed till the date of dispatch the Show Cause Notice being 26.10.2020. Default period is thus O lie at a total of 331 days till 25.10.2020.
19. I am of this opinion that, the penalty is commensurate with the aforesaid failure committed by the Noticee.
20. The Noticee shall pay the said amount of penalty through “Ministry of Corporate Affairs” portal and proof of payment be produced for verification within 90 days of receipt of this order.
21. Please note that as per Section 454(8)(i) of the Company Act, 2013 where, does not pay the penalty imposed by the Adjudicating’ Regional Director within a period of ninety days from the date copy of the order, the Company shall be punishable with fine less than twenty-five thousand rupees, but which may extend to five lakh rupees.
22. Where an Officer of a Company who is in default does not pay the penalty within a period of ninety days from the date of the receipt of the copy officer shall be punishable with imprisonment which may extend to six month or with fine which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.
23. Therefore, in case of default in payment of penalty, prosecution will be filed under Section 454(8)(i) and (ii) of the Companies Act, 2013 at your own costs without any further notice.
24. Further the company and its officers are hereby direct that amount shall be remitted from their own sources through MCA 21 ports within 60 days from the date of receipt of order. The company need to file INC 28 as per the provisions of the Act, attaching copy of adjudication order along with payment challans.
25. Appeal if any, against this order may be filed in writing with the Regional Director, Western Regional, Ministry, of Corporate Affairs, within a period of sixty days from the date of receipt of this order, in From ADJ setting forth the ground of appeal and shall be accompanied by the certified copy: o of the Companies Act,2013 read with the Companies (Adjustication of penalty) Rules, 2014 as amended by Companies (Adjudication of Penalty) Rules, 2019.
26. In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjustication of Penalties) Rules 2014 as amended by companies(Adjustication of Penalties) Amendment Rules, 2019, copy of this order is being sent to the Company and Notice /s and also to office Regional Director, Western Region, Ministry of Corporate Affairs.
27. You are also requested to serve a copy of this Order on the undermentioned Director/MD/WTD/Officers under Section 20 of the Companies Act, 2013 for compliance.
(B MISHRA)
Adjudication officer and Registrar of Companies,
Maharashtra, Mumbai.
