Delay in filing of Balance Sheet (AOC-4 XBRL) – MCA imposes Penalty

Whereas the Company ought to have held its AGM for the financial year 2020-2021 on or before 30.9.2021 and filed its Balance Sheet (AOC-4) before MCA on or before 10.2021. However the company got extension upto 31.12.2021 and ought to have filed its Balance Sheet (AOC-4) before MCA on or before 30.01.2022, but the company had held its AGM on 11.05.2022 and has filed its AOC-4 (XBRL) vide SRN F09056763 on 24.06.2022 and thereby contravened the Provisions of section 137(2) of Companies Act, 2013 during the period from 31.01.2022 to 24.06.2022 (with a delay of 145 Days).

GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES, TAMIL NADU
SHASTRI BHAVAN, II FLOOR, 26, HADDOWS ROAD, CHENNAI-6.
*******

Order No. F.NO.ROC/ CHN/ CMBF TRADING /ADJ Order / S.137(2) /2023 Date: 14.06.2023

ORDER OF ADJUDICATION OF PENALTY UNDER SECTION 454 OF COMPANIES ACT, 2013 READ WITH RULE 3 OF THE COMPANIES (ADJUDICATION OF PENALITES) RULES 2014 FOR VIOLATION OF PROVISIONS OF SECTION 137(2) OF THE COMPANIES ACT, 2013 BY M/S CMBF TRADING AND MANUFACTURING  INDIA PRIVATE LIMITED.

1. In the matter of M/s CMBF TRADING AND MANUFACTURING INDIA PRIVATE LIMITED incorporated on 15.12.2008 under the jurisdiction of Registrar of Companies, Chennai with the registered office situated at PLOT NO. A-9, SIPCOT INDUSTRIAL ESTATE, PILLAIPAKKAM, SRIPERUMBUDUR, CHENNAI – 602 105.

2.Whereas pursuant to sub section (2) of Section 137 which read as under:-

“Where the annual general meeting of a company for any year has not been held, the financial statements along with the documents required to be attached under sub-section (1), duly signed along with the statement of facts and reasons for not holding the annual general meeting shall be filed with the Registrar within thirty days of the last date before which the annual general meeting should have been held and in such manner, with such fees or additional fees as may be prescribed, as envisaged in the Act, 2013.”

3. Whereas the Company ought to have held its AGM for the financial year 2020-2021 on or before 30.9.2021 and filed its Balance Sheet (AOC-4) before MCA on or before 30.10.2021. However the company got extension upto 31.12.2021 and ought to have filed its Balance Sheet (AOC-4) before MCA on or before 30.01.2022, but the company had held its AGM on 11.05.2022 and has filed its AOC-4(XBRL) vide SRN F09056763 on 24.06.2022 and thereby contravened the Provisions referred to Para No.2 Supra during the period from 31.01.2022 to 24.06.2022 (with a delay of 145 Days).

4. Whereas this office had issued Adjudication Hearing Notice to the Company and its Directors on 12.05.2023 fixing the hearing date as 18/05/2023 on the basis of the Suo-motto application of the company and its officers on 25/11/2022. The Company and its Directors appeared before the undersigned on 18.05.2023.

5. Pursuant to hearing notice issued to the company and its directors vide dated 12.05.2023. Shri. Venkatesh Prasad. (Practicing Compan^y Secretary^.). Authorized Representative appeared before the undersigned and made submissions that. ‘the said violation may be adjudicated’^.

6. Whereas on the basis of Suo-motu application received for Adjudication offences u/s 454 of the Act r/w Companies (Adjudication of Penalty), Rules 2014, has been verified in the light of the latest Companies Amendment Act, 2020 wherein, Section 454 of the Companies Act, 2013, particularly sub section 3 and its proviso states that;

“The adjudicating officer may, by an order

(a) Impose the penalty on the company, the officer who is in default, or any other person, as the case may be, stating therein any non-compliance or default under the relevant provisions of this Act; and

(b) Direct such company, or officer who is in default or any other person, as the case may be, to rectify the default, wherever he considers fit.

“Provided that in case the default relates to non-compliance of sub-section 4 of Section 92 or sub-section (1) or sub-section (2) of section 137 and such default has been rectified either prior to, or within thirty days of the issue of the notice by the adjudicating officer, no penalty shall be imposed in this regard and all proceedings under this section in respect of such default shall be deemed to be concluded.”

7. Whereas on examination of the representation filed hereto by the parties with reference to the provisio added vide the said Amendment Act, 2020 it is noted that the subject company has complied the default provisions of Section 137(1) of the Companies Act, 2013 and submitted their documents filed the e-forms before MCA and accordingly the company has filed E-form AOC-4(XBRL) vide SRN F09056763 on 24.06.2022. However, it is observed that the company have filed e-form AOC-4(XBRL) on 24.06.2022 hence the company and its directors are liable for penalty.

8. Whereas per section 137(3) of the Companies Act, 2013, which read as under:-

“If a company fails to file the copy of the financial statements under sub-section (1) or sub-section (2), as the case may be, before the expiry of the period specified therein, the company shall be liable to a penalty of ten thousand rupees and in case of continuing failure, with a further penalty of one hundred rupees for each day during which such failure continues, subject to a maximum of two lakh rupees, and the managing director and the Chief Financial Officer of the company, if any, and, in the absence of the managing director and the Chief Financial Officer, any other director who is charged hi’ the Board with the responsibility of complying  with the provisions off his section. and in the absence of any such director, all the directors all the company. shall be  liable to penalty of^. ten thousand rupees and in case of continuing _.failure, with a further penalty  of one hundred rupees for each day after the first during -which such failure continues, subject to a maximum of fifty thousand rupees.”

9. Therefore in view of the above said non-compliance for the violation of Section 137(2) of the Companies Act, 2013 under Section 137(3) of the Companies Act,2013 hereby impose a penalty:

(Totalling Rs. 1,22,500/- as penalty amount) for non compliance of Section 137(2) of the Companies Act, 2013.

10. Whereas sub-section (5) of section 454 of the Companies Act, 2013 provides that, “Any person aggrieved by an order made by the adjudicating officer under sub-section (3) may prefer an appeal to the Regional Director having jurisdiction in the matter.” Further sub­section(6) provides that, “Every appeal under sub-section(5) shall be filed within sixty days form the date on which the copy of the order made by the adjudicating officer is received by the aggrieved person and shall be in such form, manner and be accompanied by such fees as may be prescribed.”

11. Please note that as per Section 454(8) (i) of the Companies Act, 2013, which read as under:‑

i. “Where company does not pay the penalty imposed by the adjudicating officer or the Regional Director within a period of ninety days from the date of the

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. Along with the penalty to be imposed and the same should be submitted.

(K. LATHA PARIMALV  ADANA, ICLS,)
REGISTRAR OF COMPANIES
ADJUDICATING OFFICER
TAMILNADU, CHENNAI.

F.NO.ROC/CHN/CMBF Trading /ADJ order/S.137(2)/ 2023