One of the Major proposed Amendment”
Removal of reference of Section 403 from the Section 92 (Annual Return) and Section 137 (Financial Statement). Due to removal of 403 from the section 137 & 92 there are lot of questions arise in the mind of the professionals and the Corporates due to non clarity as follow.
I. No Upper Cap on Additional Fees:
In the proposed Companies (Amendment) Bill, 2017 as passed by Lok Sabha, It is proposed that if any company fails to comply with the provisions of Section 92 & 137 the Companies Act, 2013 i.e. filing of e-form MGT-7 and AOC-4 with in period of 60 days and 30 days of date of Annual General Meeting “Then it proposed in the bill that the Company can file such form subject to additional fees of Rs. 100/- per day”. Here the questions are;
- If a Company has not filed Annual forms for the f.y. 2014-15 , 2015-16 or any previous financial year then whether fees shall be applicable as Rs. 100 per day or 2 times, 4 times as per Companies Act, 2013?
- There are upper cap of maximum 12 times additional fees under CA, 2013 whether there are any upper cap on additional fees under Amendment Bill, 2017.
II. Double / Higher Additional Fees
In the proposed Companies (Amendment) Bill, 2017, it is proposed that if the Company commits default of 2 or more occasions in filing of documents, facts or information required u/s 92 and 137 of the Act, the Company has to pay higher additional fee, as may be prescribed and which shall not be lesser than “Twice the Additional Fees” as mentioned above. Here the questions are;
- If company fails to file for the F.Y. 2014-15 and 2015-16 then whether it will be considered as committing of default 2 times/ occasions.
- Whether this 2 time of additional fees only in case of non filing of annual forms or non filing of any other forms also?
III. Trigger of Compounding:
As per provisions of Companies Act, 2013 if company fails to file Annual form within the additional time prescribed under Section 403 (i.e. 270 days) then company have to file application with NCLT for compounding of offence u/s 137 and 92.
However, it can be opined that as per the provisiosn of Companies Act, 2013 Compounding shall be triggered after completion of additional 270 days.
In the proposed Companies (Amendment) Bill, 2017 if is proposed to remove the reference of Section 403 from the section 137 and 92. Here the questions are;
- Whether compounding shall be triggered from 31st day and 61st day in case on non compliance of Section 137 & 92, non filing of AOC-4 & MGT-7.
- Whether default shall be trigger from 31st day and 61st day for availing the exemptions given to private limited Company.
Therefore, one can opine that due to non clarity, it is urgent and important for all the Corporates and professionals to file all the pending annual e forms if any, with the ROC at the earliest before passing of Amendment Bill, 2017 from the Rajya Sabha and becomes the final Act.
(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)
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Author Bio
A private limited company defaulted to file annual return for last 3 years. All the Director’s became disqualified u/s 164(2). The status of the company in master data is’active’. If the disqualified director e-file any form, it is read in news paper, that e-form will be ‘summarily rejected’. Is it true. If so what is the solution to e-file pending annual returns since the company is functioning and director’s want to continue the company.