E-FORM 22A: Companies (Incorporation) Amendment Rules, 2019

E-FORM 22A (OR E-FORM ACTIVE)

The Ministry of Corporate Affairs has introduced the Companies (Incorporation) Amendment Rules, 2019 vide notification dated February 21, 2019. These Rules shall come into force from February 25, 2019.

♣ PURPOSE:

Every company incorporated on or before December 31, 2017 shall file such particulars of the company and its registered office, as required e-Form ACTIVE (Active Company Tagging Identities and Verification) (or e-form 22A) on or before April 25, 2019. The Email ID as indicated in the e-form would be duly verified by One Time Password (OTP).

♣ CONSEQUENCES OF NON-FILING ON OR BEFORE APRIL 25, 2019:

After expiry of the due date by which the e-form 22A is to be filed (i.e. after April 25, 2019), the MCA21 system will mark the company against which e-form 22A has not been filed as ‘ACTlVE-non-compliant’ and shall be liable for action under sub-section (9) of section 12 of the Act (removal of the name of the company from the register of companies under Chapter XVIII).

Further, the following e-forms pertaining to event-based information shall not be accepted by the MCA portal from such companies marked as ‘ACTlVE-non-compliant’ unless e-form 22A is filed:

1. SH-7: Notice to Registrar of alteration of authorised share capital
2. PAS-3: Return of allotment w.r.t. change in paid-up capital
3. DIR-12: Particulars of appointment of Directors and the Key Managerial Personnel (“KMP”) and the changes among them (except cessation of Directors and KMP)
4. INC-22: Notice of change of situation of registered office
5. INC-28: Notice of Order of the Court or any other competent authority w.r.t. amalgamations and demergers.

♣ FILING FEES:

The e-form 22A has no filing fee up to the due date, i.e., April 25, 2019.

• FILING THE E-FORM AFTER THE DUE DATE:

Filing of the e-form 22A in respect of a company marked as ACTlVE-non-compliant shall be allowed only upon a payment of INR 10,000/-.

It is mandatory to note that the company shall be liable for action under sub-section (9) of section 12 of the Act (removal of the name of the company from the register of companies under Chapter XVIII). 

• RESTRICTIONS IN FILING E-FORM 22A ON THE MCA PORTAL:
  

As the e-form will automatically pre-fill the details, a company might face hurdles / restrictions in filing the e-form where:

a. the company has not filed its financial statements under section 137 (e-form AOC-4 / AOC-4 XBRL) or its annual return under section 92 (e-form MGT-7) or both for the financial year 2017-18.

b. the company does not have the minimum number of directors as prescribed in the Companies Act, 2013 (“the Act”):

• 2 directors for private companies other than producer companies,
• 5 directors for private producer companies,
• 3 directors for public companies,
• 1 director for one person companies.

c. the DIN (Director Identification Number) status of any director is other than approved, i.e. the status of the DIN of the Director is marked for disqualification or is deactivated due to non-filing of e-form DIR-3 KYC.

d. the company has not filed e-form ADT-1 or details of appointment of statutory auditor(s) are not available with the MCA for period to date (on or after March 31, 2019).

e. the company has not appointed a Cost Auditor but is required to do so as per the provisions of the Act (refer Rules 3 and 4 of The Companies (Cost Records and Audit) Rules, 2014) or where the details of appointment of cost auditor in e-form CRA-2 are not available with the MCA for period to date (on or after March 31, 2019).

f. Where the company has not appointed KMP (Chief Executive Officer / Manager / Managing Director / Manager / Whole-time Director, Chief Financial Officer and Company Secretary) but is required to do so as per the provisions of the Act (refer section 203 read with Rules 8 and 8A of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014) or where the details of appointment of KMP in e-forms DIR-12 and / or MR-1, as applicable, are not available with the MCA.

♣ ATTACHMENTS TO THE E-FORM:

Photograph of the registered office of the company showing external building and inside office also showing therein at least one Director / KMP who has affixed his / her Digital Signature is required to be attached to the e-form in PDF format.

Any other optional attachment may also be provided.

♣ SIGNING OF THE E-FORM:

The e-form is to be digitally signed by one director in case of OPC and in case of other than OPC by one director and one KMP or by two directors.

Disqualified directors are not allowed to sign the e-form.

Where a director signs the e-form, his / her DIN shall be entered and where a KMP signs the e-form, his / her income-tax PAN should be entered.

In case a Company Secretary signs the e-form, his / her membership number shall be entered in case of an other than section 8 company, and in case of a section 8 company, his / her income-tax PAN or membership number should be entered.

The e-form is also required to be certified by a practicing Chartered Accountant / Cost Accountant / Company Secretary.

The DSC of the person(s) signing the e-form should have been duly registered on the MCA Portal.

♣ VERIFICATION BY OTP:

Send OTP: This button will be enabled only after successful pre-scrutiny of the form. Click on this button to send OTP to the email ID. OTP can be successfully sent to the email ID against one form, for a maximum of 10 times in one day and shall be valid for a span of 30 minutes. For further chances, you may download a fresh form on the same day or try next day.

Verify OTP: This button will be enabled after OTP for email ID is entered. Please note that the OTPs must be verified before uploading the form.

♣ PROCESSING OF THE E-FORM:

The e-form will be processed in STP mode. Acknowledgement mail after complete processing shall be sent to the email ID of the company. The e-form will be taken on file through electronic mode and on the basis of the statements of correctness given by the Director(s), KMP, and Professional.

♣ EXEMPTION FROM FILING THE E-FORM 22A:

The following companies are exempted from filing the e-form 22A provided the Registrar has recorded the same on the register:

1. A company which has not filed its financial statements under section 137 (e-form AOC-4 / AOC-4 XBRL) or its annual return under section 92 (e-form MGT-7) or both for the financial year 2017-18 but is under management dispute;

2. A company which has been struck off or is in the process of being struck off;

3. A company which is under liquidation;

4. A company which has been amalgamated; or

5. A company which has been dissolved.

♣ RESPONSIBILITY OF PRACTICING PROFESSIONAL:

In order to avoid liability and / or any punishment under section 448 of the Act and to maintain proper transparency and corporate governance, the Professional should:

1. satisfy himself / herself about the identity of the company and its address based on the perusal of the original document(s) attached to the e-form.

2. take care that the required attachment(s) has been provided and is attached to the e-form in a complete and legible form.

3. verify the details (including the e-mail ID mentioned) in the e-form and found them to be true, correct and complete on the basis of the original documents maintained by the company.

4. take care that no material information has been suppressed.

5. maintain a copy of the e-form and its attachments for future reference.

♣ LIABILITY FOR MIS-INFORMATION:

Attention is drawn to the provisions of sections 7(5) and 7(6), which, inter-alia, provide that furnishing of any false or incorrect particulars of any information or suppression of any material information shall attract punishment for fraud under section 447. Attention is also drawn to provisions of sections 448 and 449 which provide for punishment for false statement / certificate and punishment for false evidence respectively.