Delay in filing of e-form BEN-2 MCA imposes penalty on Company & Directors

On September 18, 2024, the Office of the Registrar of Companies in Punjab and Chandigarh issued an order regarding M/s Ferozepur Foods Energy Private Limited, imposing penalties for non-compliance with Section 90(4A) of the Companies Act, 2013. The company failed to file the required e-form BEN-2 within the prescribed time, as mandated for declaring significant beneficial ownership. This non-compliance was identified following a review of the company’s records and subsequent communications that highlighted the company’s failure to provide necessary documentation regarding its shareholders.

The penalties imposed include ₹5,00,000 on the company and ₹1,00,000 each on its directors, Hemant Mittal, Brij Bhushan Mittal, and Pawan Kumar. The duration of default ranged from 1,655 to 1,862 days, with specific calculations based on daily penalties for continued non-compliance. The order also states that the penalties must be paid through the Ministry of Corporate Affairs portal. Additionally, the company and its directors have the right to appeal this order within 60 days to the Regional Director of the Ministry of Corporate Affairs.

GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES,
PUNJAB AND CHANDIGARH,
CORPORATE BHAWAN,
PLOT NO.4-B, SECTOR 27B, CHANDIGARH
PHONE NO.172-2639415,2639416

Order No. ROC-CHD/2023-24/10A/033575/612 to 616 Dated: 18/09/2024

Order under Section 454 for Violation of Section 90 (4A) of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules, 2014

IN THE MATTER OF M/S FEROZEPUR FOODS ENERGY PRIVATE LIMITED

(CIN: U15400P112010PTC033575)

1. Appointment of Adjudicating Officer

The Ministry of Corporate Affairs vide its gazette notification no S0.831(E) dated 24.3.2015, has appointed the undersigned as Adjudicating Officer (AO) in exercise of the powers conferred by section 454 of the Companies Act, 2013 (hereinafter known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.

2. Company

M/s FEROZEPUR FOODS ENERGY PRIVATE LIMITED (herein after referred to as “the company”) is a company registered with this office under the Provisions of the Companies Act, 2013 (or previous Acts in force, as applicable) having its registered office situated at opp. BSF Head Quarter, Moga Road, Firozpur, Ferozepur Cantt, Punjab, India, 152001. The financial and other details of the subject company for immediately preceding financial year as on 31.03.2023 available on MCA-21 Portal is as under:

3. RELEVANT PROVISIONS OF THE COMPANIES ACT, 2013 WHICH ARE APPLICABLE IN THE PRESENT CASE

Section 90 of the Companies Act, 2013 reads as under: –

” 90. Register of significant beneficial owners in a company

(1) Every individual, who acting alone or together, or through one or more persons or trust, including a trust and persons resident outside India, holds beneficial interests, of not less than twenty-five per cent. or such other percentage as may be prescribed, in shares of a company or the right to exercise, or the actual exercising of significant influence or control as defined in clause (27) of section 2, over the company (herein referred to as “significant beneficial owner”), shall make a declaration to the company, specifying the nature of his interest and other particulars, in such manner and within such period of acquisition of the beneficial interest or rights and any change thereof as may be prescribed:

Provided that the Central Government may prescribe a class or classes of persons who shall not be required to make declaration under this sub-section.

(2) Every company shall maintain a register of the interest declared by individuals under sub-section (1) and changes therein which shall include the name of individual, his date of birth, address, details of ownership in the company and such other details as may be prescribed.

(3) The register maintained under sub-section (2) shall be open to inspection by any member of the company on payment of such fees as may be prescribed.

(4) Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed.

(4A) Every company shall take necessary steps to identify an individual who is a significant beneficial owner in relation to the company and require him to comply with the provisions of this section.

(5) A company shall give notice, in the prescribed manner, to any person (whether or not a member of the company) whom the company knows or has reasonable cause to believe—

(a) to be a significant beneficial owner of the company;

(b) to be having knowledge of the identity of a significant beneficial owner or another person likely to have such knowledge; or

(c) to have been a significant beneficial owner of the company at any time during the three years immediately preceding the date on which the notice is issued,

and who is not registered as a significant beneficial owner with the company as required under this section.

(6) The information required by the notice under sub-section (5) shall be given by the concerned person within a period not exceeding thirty days of the date of the notice.

(7) The company shall,—

(a) where that person fails to give the company the information required by the notice within the time specified therein; or

(b) where the information given is not satisfactory,

apply to the Tribunal within a period of fifteen days of the expiry of the period specified in the notice, for an order directing that the shares in question be subject to restrictions with regard to transfer of interest, suspension of all rights attached to the shares and such other matters as may be prescribed.

(8) On any application made under sub-section (7), the Tribunal may, after giving an opportunity of being heard to the parties concerned, make such order restricting the rights attached with the shares within a period of sixty days of receipt of application or such other period as may be prescribed.

(9) The company or the person aggrieved by the order of the Tribunal may make an application to the Tribunal for relaxation or lifting of the restrictions placed under sub­section (8), within a period of one year from the date of such order:

Provided that if no such application has been filed within a period of one year from the date of the order under sub-section (8), such shares shall be transferred, without any restrictions, to the authority constituted under sub-section (5) of section 125, in such manner as may be prescribed;

(9A) The Central Government may make rules for the purposes of this section.

(10) If any person fails to make a declaration as required under sub-section (1), he shall be liable to a penalty of fifty thousand rupees and in case of continuing failure, with a further penalty of one thousand rupees for each day after the first during which such failure continues, subject to a maximum of two lakh rupees.

(11) If a company, required to maintain register under sub-section (2) and file the information under sub-section (4) or required to take necessary steps under sub-section (4A), fails to do so or denies inspection as provided therein, the company shall be liable to a penalty of one lakh rupees and in case of continuing failure, with a further penalty of five hundred rupees for each day, after the first during which such failure continues, subject to a maximum of five lakh rupees and every officer of the company who is in default shall be liable to a penalty of twenty-five thousand rupees and in case of continuing failure, with a further penalty of two hundred rupees for each day, after the first during which such failure continues, subject to a maximum of one lakh rupees.

(12) If any person wilfully furnishes any false or incorrect information or suppresses any material information of which he is aware in the declaration made under this section, he shall be liable to action under section 447. “

Further, Section 2(27) of the Act defines control-

“control” shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.

Rule 3(12) of Companies (Adjudication of Penalties) Rules, 2014

While adjudging quantum of penalty, the adjudicating officer shall have due regard to the following factors, namely.-

a) size of the company

b) nature of business carried on by the company,

c) injury to public interest,

d) nature of the default, ‘

e) repetition of the default, ‘

f) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the deflate: and

g) the amount of loss caused to an investor or group of investors or creditors as a result of the default.

Provided that, in no case, the penalty imposed shall be less than the minimum penalty prescribed, if any, under the relevant section of the Act.

Rule 3 (13) of Companies (Adjudication of Penalties) Rules, 2014 which read as under:

In case a fixed sum of penalty is provided for default of a provision, the adjudicating officer shall impose that fixed sum, in case of any default therein.

4. FACTS ABOUT THE CASE

On perusal of the records of the company available with this office, it has been observed that the company has not filed e-form BEN-2 with the Registrar within the prescribed time pursuant to section 90 of the Companies Act, 2013 read with Rule 4 of the Companies (Significant Beneficial Owners) Rules, 2018 and Notice under section 206(1) was sent to the company and its directors on 26.04.2024 with regard to issues pertaining to compliance of section 90 of the Companies Act, 2013 read with relevant Rules thereunder and vide mail dated 26.04.2024 , the company was directed to furnish the board resolutions passed by the company from 01.04.2018 onwards and the Company vide mail 05.08.2024 has furnished the same. Further, vide mail dated 06.08.2024, the Company was directed to furnish the list of shareholders of Amanat Foods Trading LLC and vide mail dated 13.08.2024 the company had mailed a reply letter which was not found satisfactory as the Company has stated that it is not required to file BEN 2 but no documentary evidence has been provided by the company. The List of Shareholders of Amanat Food Trading LLC has not been provided the Company. It is also pertinent to mention that as per Letter dated 05.09.2024, Amanat Foods Trading LLC has transferred the shares in April 2023 and provide the list of shareholders. Also, the Company has failed to provide what steps it has taken under section 90(4A) of the Companies Act, 2013 which was sought by this office vide mail dated 31.08.2024.

5. ADJUDICATION OF PENALTY:

Now, in exercise of the powers conferred on the undersigned vide Notification dated 24^th March, 2015 and having considered the facts of the case , I hereby impose the penalties on the Company and officers in default as under for violation of section 90(4A) of the Companies Act, 2013.

I am of this opinion that penalty is commensurate with the aforesaid failure committed by the addressees and Penalty so imposed upon the Officer-in-default shall be paid from their personal sources/income.

It is further directed that penalty imposed shall be paid through the Ministry of Corporate Affairs portal only as mentioned under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 under intimation to this office.

6. Appeal against this order may be filed in writing with the Regional Director (Northern Region), Ministry of Corporate Affairs, CGO Complex, Lodhi Road, New Delhi, within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by a certified copy of this order. [Section 454(5) & 454(6) of the Act, read with Companies (Adjudication of Penalties) Rules, 2014].

7. Your attention is also invited to Section 454(8)(i) and 454(8)(ii) of the Companies Act,2013, which state that:

(i)Where company fails to comply with the order made under sub-section (3) or sub­section (7), as the case may be, within a period of ninety days from the date of the receipt of the copy of the order, the company shall be punishable with fine which shall not be less than twenty five thousand rupees but which may extend to five lakh rupees.

(ii) Where an officer of a company or any other person who is in default fails to comply with the order made under sub-section (3) or sub-section (7), as the case may be within a period of ninety days from the date of the receipt of the copy of the order, such officer shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both.

In terms of the provisions of sub-rule (9) of Rule 3 of the Companies (Adjudication of Penalties) Rules, 2014, copy of the order is being sent to the following as under:

a. FEROZEPUR FOODS ENERGY PRIVATE LIMITED, Company
Opp. BSF Head Quarter, Moga Road, Firozpur,
Ferozepur Cantt, Punjab, India, 152001
ss

b. HEMANT MITTAL, Director

c. BRIJ BHUSHAN MITTAL, Director

d. PAWAN KUMAR, Director

e. REGIONAL DIRECTOR (NORTHERN REGION),
Ministry of Corporate Affairs, CGO Complex, Lodhi Road, New Delhi and will also be
uploaded on website of Ministry of Corporate Affairs.

(Kam Sharma)
Registrar of Companies & Adjudication Officer
Punjab & Chandigarh