E-Form INC-20A can be Filed Upto 31st August, 2021

[Ref: General Circular No. 11/2021 dated 30.06.2021 and General Circular No. 06/2021 dated 03.05.2021]

Every company required to file Form INC-20A shall file the same within 180 days of its incorporation. Non filling of Form INC-20A allows Registrar of Companies (‘ROC’) one additional ground to strike off the name of your Company from its Register.

General Circular No. 06/2021 dated 03.05.2021

The Ministry of Corporate Affairs (‘MCA’) had received request from stakeholders for relaxation on levy of additional fees for filing of various forms under the Companies Act, 2013 /LLP Act, 2008/ Rules made thereunder due for filing during 1^st April, 2021 to 31^st May, 2021 in view of Covid-19 related restriction and disruption. MCA had examined the said request and taking into account the difficulties which have arisen due to resurgence of Covid-19 pandemic, MCA vide General Circular No. 06/2021 dated 03.05.2021 had decided to grant additional time upto 31^st July, 2021 for companies/LLPs to file such forms (other than CHG-1 Form, CHG-4 Form and CHG-9 Form) without any additional fees.

General Circular No. 11/2021 dated 30.06.2021

Now, MCA vide General Circular No. 11/2021 dated 30.06.2021 has extended the time given under earlier General Circular No. 06/2021 dated 03.05.2021. By today General Circular No. 11/2021 dated 30.06.2021 it has been decided to grant additional time upto 31^st August, 2021 to Companies/LLPs to file to file such forms (other than CHG-1 Form, CHG-4 Form and CHG-9 Form) which were/are due for filing during 1^st April, 2021 to 31^st July, 2021 without any additional fees. Accordingly, normal fees shall be levied upto 31^st August 2021 for forms (other than charge related forms referred above) required to be filed during 1^st April, 2021 to 31^st July, 2021.

As per new General Circular No. 11/2021 dated 30.06.2021, no additional fees shall be levied upto 31^st August, 2021 for the delayed filing of forms (other than charge related forms referred above) which were/would be due for filing during 1^st April, 2021 to 31^st July, 2021. For such delayed filing upto 31^st August, 2021 only normal fees shall be payable.

It is to be noted that the benefit under the above circulars extends to both Companies and LLP and only forms which were/would be due for filing during 1^st April, 2021 to 31^st July, 2021 can be filed after their due date without any additional fees upto 31st August, 2021. The said relaxation is not granted to charge related forms.

In view of the above, it is stated that company can file E- Form INC-20A, which is due for filing during 1^st April, 2021 to 31^st July, 2021, till 31^st August, 2021 without any additional fee.

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PROVISIONS OF COMMENCEMENT OF BUSINESS: –

The concept of Certificate of ‘Commencement of Business’(“COB”) were earlier provided under Section 149 of the Companies Act, 1956 (“the Erstwhile Act”). The provisions were only applicable to newly incorporated public companies having share capital.

It was also introduced by the Companies Act, 2013 (“the Principal Act”) under the Section 11 thereof. Section 11 of the Principal Act was introduced for providing declaration of COB and exercising of borrowing powers by the newly incorporated Companies. This time the provisions were applicable to all companies, whether private and public.

It is pertinent to note that under the Principal Act, no certificate of COB was facilitated by ROC, but the documents filed in this regard were taken on record only, whereas in the Erstwhile Act a certificate of COB was issued by ROC.

The Government of India (“GOI”) had received several representations from industry stakeholders for amending various provisions of the Principal Act to ensure ease of doing business in India. For the promotion of ease of doing business in India the GOI came up with some relaxations to the corporate entities vide Notification dated 26.05.2015 and notified the Companies Amendment Act, 2015 (“the Amendment Act”).

The GOI is authorised to appoint different dates for implementation of different provisions in the Amendment Act. Accordingly, while most provisions have become effective from 29 May 2015. Consequent to the commencement of the Amendment Act, section 11 was omitted (deleted) by the Amendment Act w.e.f. 29 May 2015.

In the continuation of the Amendment Act, MCA has amended the Companies (Incorporation) Rules, 2014 (“the Principal Rules”) vide Companies (Incorporation) Second Amendment Rules, 2015 (“the Second Amendment Rules”) w.e.f. 29.05.2015. Accordingly, existing Rule 24 in the Principal Rules was omitted by the Second Amendment Rules w.e.f. 29 May 2015.

The GOI has come up with the Notification dated 02.11.2018 with regard to commencement of the Companies (Amendment) Ordinance, 2018 (“the Ordinance”). The Principal Act has further amended by way of passing of such ordinance on 2^nd November, 2018. Declaration for COB is re-introduced by way of inserting a new Section 10A after section 10 of the Principal Act.

The text of Section 10A of the Principal Act are as follow;

1. A company incorporated after the commencement of the companies (Amendment) Ordinance, 2018 and having a share capital shall not commence any business or exercise any borrowing powers unless—

(a) a declaration is filed by a director within a period of one hundred and eighty days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and

(b) the company has filed with the Registrar a verification of its registered office as provided in subsection (2) of section 12.

2. If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees.

3. Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may, without prejudice to the provisions of sub-section (2), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.

After the above amendment, the MCA has further amended the Principal Rules vide Companies (Incorporation) Fourth Amendment Rules, 2018 (“the Fourth Amendment Rules”) w.e.f. 18.12.2018. According to the Fourth Amendment Rules, a new Rule 23A shall be introduced by the MCA in Principal Rules, which is also reproduced below:

 “23A’ Declaration at the time of commencement of business – The declaration under section 10A by a director shall be in Form No. lNC-20A and shall be filed as provided in the Companies [Registration Offices and Fees) Rules, 2014 and the contents of the said form shall be verified by a company Secretary or a chartered Accountant or a cost Accountant in practice:

Provided that in the case of a company pursuing objects requiring registration or approval from any sectoral regulators such as the Reserve Bank of India, Securities and Exchange Board of India, etc., the registration or approval, as the case may be from such regulator shall also be obtained and attached with the declaration.”.

According to the provisions of section 10A of the Principal Act, as inserted by the Ordinance, the companies having share capital, which have been incorporated on after the date of commencement of the Ordinance, for the purpose of commencement of their businesses and exercise borrowing powers, are required to file a declaration within the period of 180 days from the date of incorporation by any of their director with regard to acceptance of subscription money from their subscribers.

The ordinance was come into force on 2^nd November, 2018, therefore all the provisions of this section become applicable from 2^nd November, 2018. Now, every company having share capital incorporated after 2^nd November, 2018 has to file Form INC 20A with 180 days i.e. before 1^st May 2019.

Further, the companies are also required to ensure about the compliance of provisions of section 12(2) of the Principal Act, which talks about filing of a verification of their registered offices. In case the Company fails to file the declaration within the prescribed time, the Company shall be liable to penalty of Rs. 50,000/- and every officer in default shall be liable to a penalty of Rs. 1000/- for each defaulting day subject to maximum amount of Rs. 1 lac.

In addition to this, ROC may remove of name of the company from the ROC, if he has a reasonable cause to believe that the Company is not carrying on any business and operation.

 Crux of the Provisions of Commencement of Business: –

1. The following Companies are not required to file Form INC 20A:

• Companies incorporated before 2^nd November, 2018 (i.e. before the commencement of the Companies (Amendment) Ordinance, 2018).
• Companies incorporated after 2^nd November, 2018 without share capital.

2. Every company required to file form 20A shall file the same within 180 days of its incorporation.

3. Non filling of form INC 20A allows ROC one additional ground to strike off the name of your Company from its Register.

4. The penalties for non-compliance are very high which has been done intentionally so as to curb out the number of shell companies incorporated. Following are the penalties for non-compliance:

• Penalty to be levied on the company: A penalty of Rs 50,000 will be levied on the company if it fails to comply with the mentioned requirement.
• Penalty to be levied on the officers: Every such officer in default shall be liable to a penalty of Rs 1,000 per day for each day during which the default continues subject to a maximum of Rs 1,00,000.
• Company strike-off: If ROC has reasonable grounds to believe that the company is not carrying on any business or operations even after 180 days of incorporation, ROC may remove the name of the company from the Register of companies.

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COMMENCEMENT OF BUSINESS (INC-20A) AND “COMPANIES FRESH START SCHEME, 2020 (CFSS-2020)”

Due to the emerging financial distress faced by most companies on account of the large-scale economic distress caused by COVID 19, there was delay in filing of various forms which are provided under the Act. In view of this, MCA had taken special measures under Companies Act, 2013 and Limited Liability Partnership Act, 2008 in view of the COVID -19 outbreak vide General Circular No. 11/ 2020 dated 24^th March, 2020.

In order to support and enable Companies and Limited Liability Partnerships (LLPs) in India to focus on taking necessary measures to address the COVID-19 threat, including the economic disruptions caused by it, some measures had been implemented by the MCA to reduce their compliance burden and other risks. In Para I of the said Circular-

 “No additional fees shall be charged for late filing during a moratorium period from 01st April to 30th September 2020, in respect of any document, return, statement etc., required to be filed in the MCA-21 Registry, irrespective of its due date, which will not only reduce the compliance burden, including financial burden of companies/ LLPs at large, but also enable long-standing non-compliant companies/ LLPs to make a ‘fresh start’. The Circulars specifying detailed requirements in this regard are being issued separately.”

 In view of the special measure provided by MCA vide General Circular No. 11/ 2020 dated 24^th March, 202, a moratorium period from 1^st April, 2020 to 30^th September, 2020, had been provided by MCA, by which no additional fess was to be charged for late filing during the said moratorium period.

It is submitted that as per Rule 23A of the Companies (Incorporation) Rules 2014,  e-form INC-20A should be filed by the newly incorporated company within 180 days of its incorporation. Therefore, defaulting company was having an option to take the benefit of General Circular No. 11/ 2020 dated 24^th March, 202.

As per relaxation provided by MCA vide General Circular No. 11/ 2020 dated 24^th March, 202, belated e-form INC-20A, could be filed during a moratorium period from 1^st April, 2020 to 30^th September, 2020, without additional fees for late filing during the said moratorium period.

Further, it is mentioned in the said circular that the Circulars specifying detailed requirements in this regard are being issued separately. In furtherance of the Ministry’s General Circular No. 11/ 2020 dated 24^th March, 202 and in order to facilitate the companies registered in India to make a fresh start on a clean slate, MCA had decided to take certain alternatives measures for the benefits of all companies.

So, MCA came out with a detailed Scheme namely, “Companies Fresh Start Scheme, 2020 (CFSS-2020)” vide Circular No. 12/2020 dated 30^th March, 2020. The said CFSS-2020 automatically override moratorium period provided by General Circular No. 11/ 2020 dated 24^th March, 202.

The MCA had uploaded a list of 76 forms (including for companies and LLPs) for which the benefit of the Scheme CFSS-2020 can be availed. E-Form INC-20A was also included in the list to avail the benefits under CFSS-2020.

The said CFSS-2020 was applicable between the 1st of April, 2020 and the 30th of September, 2020. Therefore, company will be able to file remaining forms, compliances till 30^th September, 2020. The said Scheme CFSS-2020 was a golden opportunity for the defaulting companies to clear their slate and to make good any filling related defaults, irrespective of the duration of defaults, without any additional fees/ penalty / prosecution and make a fresh start as a fully compliant entity.

However, under said Scheme CFSS-2020, there was one additional compliance which a company have to abide by i.e. company had to file a FORM CFSS-2020 after closure of scheme and after the document(s) were taken on file, or on record or approved by the designated authority as the case may be but not after the expiry of six months from the date of closure of the scheme. There was no fee for this Form.

Further, in view of large-scale disruption caused by COVID-19 Pandemic, MCA vide General Circular No. 30/ 2020 dated 28^th September, 2020 had extended the CFSS-2020 till 31^st December, 2020. In view of the above, it is stated that company could file e-form INC-20A upto 31^st December, 2020 without any additional fee, however, it has to be filed a FORM CFSS-2020 after closure of scheme.

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Disclaimer: Nothing contained in this document is to be construed as a legal opinion or view of either of the authors whatsoever and the content is to be used strictly for educative purposes only.