Ministry of Corporate Affairs vide its notification dated February 21, 2019, amended the Companies (Incorporation) Rules, 2014.
The amended rules be called the Companies (Incorporation) Amendment Rules, 2019 and shall came into force with effect from 25th February, 2019.
A new rule i.e. Rule 25A has been inserted under the Companies (Incorporation) Rules, 2014.
Analysis of Rule 25A
SUB-RULE – (1)
Every company incorporated on or before the 31st December 2017 shall file the particulars of the company and its registered office in e-Form ACTIVE (INC-22A).
Time Limit upto which the said e-Form is to be filed:
on or before 25th April, 2019
Restriction on the following Companies to file the return
Any Company which has not filed –
a. due financial statements under Section 137 e. AOC-4/AOC-4 XBRL; or
b. due annual returns under Section 92 e. MGT-7; or
However the said Company can file the return if the Company is under management dispute and the Registrar has recorded the same on the register.
Hence, in order to file the e-Form ACTIVE (INC-22A), at first the Company has to clear/file all its due annual filings (i.e. Financial Statements & Annual Returns).
Non Applicability of the Rule to the following Companies:
a. Companies which have been struck off or under process of striking off; or
b. Companies which are under liquidation; or
c. Amalgamated Companies; or
d. Dissolved Companies
If the Companies which are required to file the e-Form ACTIVE, does not file the said form on or before 25th April, 2019, then the Company shall be marked as “ACTIVE non-compliant” on or after 26th April, 2019.
Action as per Section 12(9) of the Companies Act, 2013 which is read as below:
“If the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may cause a physical verification of the registered office of the company in such manner as may be prescribed and if any default is found to be made in complying with the requirements of sub-section (1), he may without prejudice to the provisions of sub-section (8), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII”.
The Companies which are marked as “ACTIVE non-compliant” shall be deprived of filing the following event based information or changes with the ROC:
a. SH-7 (Change in Authorised Capital)
b. PAS-03 (Change in Paid-up Capital)
c. DIR-12 (Changes in Director except Cessation)
d. INC-22 (Change in Registrar Office)
e. INC-28 (Amalgamation, Demerger)
SUB-RULE – (2)
As per sub rule2 of Rule 25A, a Company can file the e-Form Active on or after 26th April, 2019 only on the payment of fee of Rupees Ten Thousand. Such Company shall be marked as “ACTIVE Compliant” thereafter.
SIGNING OF E-FORM ACTIVE
In case of OPC – One Director
In case of any other Company- One Director and one KMP/Two Directors
CERTIFICATION OF THE E-FORM ACTIVE
The form shall be certified and digitally signed by practicing CA/CS/CMA
INFORMATION/ATTACHMENTS TO BE SUBMITTED
1. Name of the Company
2. Registered Office of the Company
(Photograph of the registered office (both internal & external) in which at least one of the Director/KMP who has affixed his/her DSC to this form shall be present)
3. Latitude and Longitude (i.e. Location of Registered Office on Map)
4. Email ID of the Company (it shall be used for OTP Verification also)
5. Number of Directors with their respective DIN
(The DINs of all Directors should be in ‘approved’ status and neither ‘De-activated due to non-filing of DIR-3 KYC’ nor ‘Disqualified u/s 164(2))
6. Details of Statutory Auditor(s)
7. Details of Cost Auditor(s), if applicable.
8. Details of Managing Director or CEO or Manager or Whole-time Director
9. Details of Company Secretary, if applicable.
10. Details of Chief Financial Officer (CFO), if applicable.
11. Details of Forms AOC-4/AOC-4XBRL and MGT-7 filed for FY 2017-18 (i.e. SRN’s)
CONSEQUENCES (in one place)
1. 3rd Proviso- After 26th April, 2019, the Company shall be marked as “ACTIVE non-compliant” and action under Section 12(9) of the Companies Act, 2013.
Sub-rule 2- However, if filed after 26th April, 2019, the Company shall be marked as “ACTIVE compliant” on payment of Rs. 10,000/- (Rupees Ten Thousand)
2. 4th Proviso– Deprived of filing
SH-7 (Change in Authorised Capital)
PAS-03 (Change in Paid-up Capital)
DIR-12 (Changes in Director except Cessation)
INC-22 (Change in Registrar Office)
INC-28 (Amalgamation, Demerger)