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Introduction: This document details the penalty imposed on Durga Hitech Projects Private Limited for failing to file its annual returns for the financial years 2021-22 and 2022-23. The order outlines the relevant sections of the Companies Act, 2013, that were violated, the penalty imposed, and the process for appeal.

Violation: The company failed to comply with Section 92(4) of the Companies Act, 2013, which mandates companies to file their financial statements within 60 days of the annual general meeting. The company did not file annual returns for the mentioned financial years.

Penalty: The company and its directors have been penalized for each financial year of non-filing of annual returns. The penalty amount is based on a fixed amount plus a daily penalty, subject to a maximum limit.

Conclusion: This order emphasizes the legal obligation for companies to file their annual returns as stipulated by the Companies Act. Failing to do so can result in penalties and other legal consequences. Companies should prioritize timely filing of annual returns to maintain good corporate governance practices.

Additional Notes:

  • The order specifies that the company and its directors must pay the penalty within 90 days of receiving the order.
  • The order also directs the company to file its nnual returns immediately upon receiving a copy of the order.
  • The document includes details about appealing the order and potential consequences of non-payment of the penalty.

*****

In the matter of Companies Act, 2013
And
In the matter of adjudication proceeding under Section 454
And
Sub-section (4) of Section 92 of the Companies Act, 2013.
And
In the matter of DURGA HITECH PROJECTS PRIVATE LIMITED
(CIN: U45200CT201OPTCO21960)

Date of Hearing – 05th January 2024

1. DURGA HITECH PROJECTS PRIVATE LIMITED
C/O Shri Om Prakash Nirmalkar, Bhatapara Road,
Mangalam Colony, Chhuiha Malgujari, Raipur,
Balodabazar, Chattisgarh, India-493332.

2. AJAY KUMAR AGARWAL (DIRECTOR)
27/4, Nehru Nagar (East), Ward No 02,
Bhilai, Motilal Nehru Nagar,
Bhilai, 490020, Chattisgarh, India

3. JAYESH RAWAL (ADDITIONAL DIRECTOR)
House No. I 24, Green Orchid,
Avani Vihar, Daldal Seoni,
Raipur,492014, Chattisgarh, India

4. ASHISH JOSHI (DIRECTOR)
S/0 Govind Lal Joshi
Do. Karuna Pandey Gali, Rajabada,
Raipur,492001, Chattisgarh

5. SUDAMA VERMA (DIRECTOR)
S/0 Nankuram Verma, Home No. 138,
Bajrang Chowk, Gram Sakari, Baloda Bazar,
493332, Chattisgarh, India

6. OM PRAKASH NIRMALKAR, (DIRECTOR)
S/0 Dhanau Ram Nirmalkar, Gaitara Road,
Bharsela Bada, Baloda Bazar,
Raipur,493332, Chattisgarh, India

1. Appointment of Adjudicating Officer:

Ministry of Corporate Affairs vide its Gazette Notification No A-42011/112/2014-Ad.II dated 24.03.2015 appointed undersigned as Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.

2. Company:

Whereas company Durga Hitech Projects Private Limited (CIN: U45200CT2010PTCO21960) (hereinafter referred to as the company) is a registered company with this office under the provisions of Companies Act 1956/2013 and having its registered office situated at First Floor, C/o Shri Om Prakash Nirmalkar, Bhatapara Road, Mangalam Colony, Chhuiha Malgujari, Raipur, Balodabazar, Chattisgarh, India-493332.

Further, financial and other details of the subject company for immediately preceding financial year as available on MCA-21 Portal is as under:

S. No.

Particulars Details
1. Paid up capital as on date 11,00,000
2. Turnover: It cannot be ascertained since the   company has not filed balance sheet     and annual return for the immediately preceding financial year.
3. Whether any holding company It cannot be ascertained since the   company has not filed balance sheet     and annual return for the immediately preceding financial year.
4. Whether any subsidiary company It cannot be ascertained since the  company has not filed balance sheet     and annual return for the immediately preceding financial year.
5. Whether company registered under Section 8 of the ACT? NO
6. Whether company registered under any other Special Act? NO
7. Whether company is a small company? NO
8. Whether company is a one-person company? NO
9. Whether company is a producer company? NO
10. Whether Section 446B is applicable to the company? (Lesser penalties for certain companies NO

3. Facts about the case: –

a) Whereas as per section 92(4) of Companies Act, 2013, Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed.

b) Whereas as per section 92(5) of Companies Act, 2013, If any company fails to file its annual return under sub-section (4), before the expiry of the period specified therein, such company and its every officer who is in default 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 after the first during which such failure continues, subject to a maximum of two lakh rupees in case of a company and fifty thousand rupees in case of an officer who is an default.

c) Whereas this office has received a complaint against the company, and during the course of examination of the matter it is observed from MCA records that the company has not filed its annual returns for the financial year 2021-22. Hence company has violated section 92(4) of the of the Companies Act, 2013 which attracted penal provisions of Section 92(5) of the Companies Act, 2013.

Show cause notice, reply and personal hearing: –

4. Therefore, for the above-mentioned violation, this office has issued Show cause notice to the company and its officers in default vide this office letter No. ROC-cum-OL-C.G./Complaint/Adj/92/021960/2023/1479 to 1484 dated 21/11/2023 u/s 92(5) of the Companies Act, 2013. However, letters addressed to noticee no. 3 & 4 were returned undelivered but the same was duly served to the company and other officers in default.

5. However, no reply has been received from the company or its officers in default within stipulated time despite of service of notice to them. Thereafter, for providing an opportunity of being heard a “Notice of Inquiry” vide this office letter No. ROC-cum-OL-C.G./Complaint/Adj/92/021960/2023/1579 to 1584 dated 08/12/2023 was issued to the Company and its officers in default and the date of hearing was fixed on 05th January 2023, in the 0/o Registrar of the Companies, Chhattisgarh, 1st Floor, Late Shri Ashok Pingley Bhawan of Municipal Corporation Nehru Chowk, Bilaspur, Chhattisgarh-495001. However, letters addressed to noticee no. 3 & 4 were returned undelivered but the same was duly served to the company and other officers in default.

6. Thereafter, company has submitted its reply dated 13/12/2023 in response to the show cause notice dated 21/11/2023, duly signed by Ashish Joshi, Sudama Verma, and Om Prakash Nirmalkar (noticee no. 4 to 6), received in this office on 18/12/2023, which is reproduced as under :-

“That, Mr. Ajay Kumar & Mr. Jayesh Rawal have filed frivolous, baseless and vexatious petition CP 65/ CB/ 2022 before NCLT, Cuttack alleging oppression and mismanagement & diversion of funds by other directors in collaboration with the Noticees 4 to 6 herein, even though such disputes arising in relation to the Joint Venture are purely within the scope of arbitration as per clause 44 of the Joint Venture.

That, Mr. Ajay Kumar & Mr. Jayesh Rawal have challenged acts of the other directors allegedly in collaboration with the Noticees 4 to 6 herein, which are (lath, back to 17.04.2017 to 29.05.2017 for transfer of fund & 18.12.2018 for induction as directors and transfer of shares, such acts neither affect any of their rights as the Company is not doing any business since April 2016, nor such arbitrary allegations are within the limitation period from the date of cause of action.

That, further, Mr. Ajay Kumar & Mr. Jayesh Rawal even challenged removal of the erstwhile Statutory Auditor on account of his non-performance of his statutory obligations coupled with completion of tenure, & they also challenged appointment of the new statutory auditor, which was merely made in order to perform regular compliances of the Company.

That, due to the aforementioned vexatious acts of the Noticees No. 2 to 3 contrary to the interest of the Company, the Noticees No. 4 to 6 could not convene annual general meeting, adopt Annual Return and Financial Statements & perform filing of the Annual Return and Financial Statements within the stipulated time period.

That, it is submitted that due to the aforementioned circumstances the Noticees 4 to 6 could not carry out the statutory compliances under sections 92(4) 137 (1) of the Act, however, such non-compliance is neither deliberate nor intentional. Further, in order to rectify such noncompliance, the Noticees herein have already circulated a notice dated 12.12.2023 to convene a board meeting of the directors with the agenda to rectify non-compliances for convening annual general meeting of the Company and filing of Annual Return for FY 2021-22-under section 92(4) of the Act & filing of Financial Statements for FY 2021-22 85 FY 2022-2023 under section 137(1) of the Act.

That, moreover, the Noticees No. 4 to 6 are also willing to take adequate steps for filing of a compounding application under section 441 of the Act, and the Noticees No. 4 to 6 shall also bear legal and ancillary costs associated therein by their own personal funds as the Company being defunct from April 2016, is not having any sufficient fund for pursuing compounding of non-compliances.

Lastly, it is submitted that there was no intention on the part of the Company or the Noticees No. 4 to 6 to contravene provisions of the Act by not filing Annual Return for FY 2021-22- & Financial Statements for FY 2021-22 & FY 2022-2023 of the Company with the ROC. Therefore, we kindly request you to take note of the same and do not initiate any adverse action against the Company or the Noticees No. 4 to 6 in lieu ofyour Show Cause Notices.”

Further it is also pertinent to mention here that no reply has been received from and Shri Ajay Kumar Agrawal (noticee no. 2) and Shri Jayesh Rawal (noticee no. 3).

7. Shri Keshav Shankar Nande (Advocate) authorized representative of Shri Ashish Joshi (noticee no. 4), Shri Sudama Verma (noticee no. 5) and Shri Om Prakash Nirmalkar (noticee no. 6) had appeared on the date so fixed, however none appeared for the company and Shri Ajay Kumar Agrawal (noticee no. 2) and Shri Jayesh Rawal (noticee no. 3). He further requested the adjudicating officer to grant time for submission of his representation in writing and the same was granted.

8. Further Shri Shankar Nande (Advocate) has submitted his representation in writing via email dated 16/01/2024 which is reproduced as under:-

“It is most respectfully submitted that a notice for Board meeting of the Board of Directors of the Company to discuss the course of action of the Company to address the issue of non-compliance on the part of Company in relation to failure of the Company to file annual return and financial statements before your good office for the Financial Years 2021-22 and 2022-23 has been scheduled on 20th January 2024

In light of the above and keeping in view the fact that failure on the part of the Company to file the annual return and financial statements for the Financial Years 2021-22 and 2022-23 is not at all deliberate or intentional and has arisen purely because of the precarious situation of the Company, it is most humbly requested from your good office to grant some more time to the Company, at least till the date of the Board Meeting i.e., 20th January, 2024 to make the necessary compliance.”

9. I have carefully perused the reply submitted by the company and found that the reply is not tenable, because as per the provision of section 92(4) of Companies Act 2013 “where no annual general meeting is held in any year, annual return of the company shall be filed within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed”. Whereas the company and its officers in default have not complied with the above provision to make compliance of the provision of section 92 of the Act. Further as per MCA records it is also observed that the company has not filed its annual return till date.

10. In view of the submissions made by the company and available records on MCA portal, it is concluded that provisions of section 92(4) of the Companies Act, 2013 read with section 92(5) of the Act have been violated by the company and its officers in default.

Order

In view of the above, as it is concluded that company and its officers in default are liable for penalty as prescribed under section 92(5) of the Act for noncompliance of section 92(4) of the Companies Act, 2013 for 451 days i.e., with effect from 30/11/2022 (Due Date of filing of Annual Return for FY 2021-22) to 23/02/2024 (Date of Order, as the company has not filed Annual return till date) in terms of Section 92(5) of the Companies Act, 2013.

Accordingly, I am imposing penalty as prescribed under Section 92(5) of the Companies Act, 2013. The details of the penalty imposed on the company and its officers in default are shown in the table below:

Nature of Default
Relevant section under the Companies Act,2013
Name of persons on whom penalty is imposed
No. of
days of
default
Penalty for default as per sec 92(5)
Total default amount
Maximum Penalty
Final Penalty imposed
Non-filing of Annual Return for the FY 2021-22
92(4) &
92(5)
ON COMPANY
451
10000 + 100 per day
55,000
2,00,000
55,000
AJAY KUMAR AGARWAL
451
10000 + 100 per day
55,000
50,000
50,000
JAYESH
RAWAL
451
10000 + 100 per day
55,000
50,000
50,000
ASHISH
JOSHI
451
10000 + 100 per day
55,000
50,000
50,000
SUDAMA VERMA
451
10000 + 100 per day
55,000
50,000
50,000
OM PRAKASH NIRMALKAR
451
10000 + 100 per day
55,000
50,000
50,000

I. I am of the opinion that penalty is commensurate with the aforesaid failure committed by the Noticees and penalty so imposed upon them shall be paid from their personal sources/ income.

II. The company and officers in default shall pay the said amount of penalty through online mode by using the website mca.gov.in (Misc. head) specifying the details of this order and the name of the noticee who is paying the penalty pursuant to Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019, within 90 days of receipt of this order. Further the company shall file form INC-28 attaching a copy of order and payment challans.

III. Appeal against this order may be filed in writing with the Hon’ble Regional Director (NWR), Ministry of Corporate Affairs, Ahmedabad within a period of sixty days from the date of receipt of this order, in Form ADJ (available on Ministry website mca.gov.in 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 (Adjudicating of Penalties) Rules, 2014).

IV. Your attention is also invited to Section 454(8)(i) and 454(8)(ii) of the Companies Act, 2013, which state that in case of non-payment of penalty amount, 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 and officer in default 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 both.

V. The company and its directors are hereby directed to rectify the default immediately on the date of receipt of copy of this order and file the annual returns of the company in terms of section 454(3)(b) of the Companies Act 2013.

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