The Ministry of Corporate Affairs (MCA) has recently imposed a substantial penalty of Rs. 7 lakh for the non-filing of E-Form BEN-2 within the stipulated timeframe. This penalty, issued under Section 454 of the Companies Act, 2013, signifies the importance of adhering to regulatory compliance in corporate governance.
The case involves Gandhar Marketing Private Limited, a company registered under the Companies Act, 1956. The violation pertains to Section 90(4) of the Companies Act, 2013, which mandates the filing of a return of significant beneficial owners (SBOs) with the Registrar of Companies (ROC). Additionally, Rule 4 of the Companies (Significant Beneficial Owner) Rules, 2018, specifies the procedure for filing Form No. BEN-20 within thirty days of receiving the SBO declaration.
Despite receiving declarations from SBOs Yashwant Khurdia and Shanit Lal Khurdia, the respondent company failed to submit Form No. BEN-2 to the Registrar within the prescribed period. Subsequent notices, including a Show Cause Notice and an Adjudication Notice, were issued to the respondents, who failed to respond adequately.
During the hearing on March 20, 2024, the authorized representative of the respondents claimed to have filed E-Form BEN-2 with the Registrar on January 31, 2024. However, this assertion did not absolve the respondents of their failure to comply with statutory requirements.
The Adjudicating Officer, exercising powers conferred by Section 454(3) of the Companies Act, 2013, decided to impose penalties on both the company and its directors. The penalties were calculated based on the number of defaulting days, with a maximum cap specified by law. The officer deemed the penalties commensurate with the severity of the violation.
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Government of India
Ministry of Corporate Affairs
Office of Registrar of Companies cum Official Liquidator,
Attached to Rajasthan High Court, Jaipur Bench at Jaipur
Corporate Bhawan, G/6-7, Residency Area, Civil Lines, Jaipur-302001
Order for Penalty under Section 454 of the Companies Act, 2013 read with Companies (Adjudication of Penalties) Rules, 2014 and Companies (Adjudication of Penalties Amendment) Rules, 2015 for the violation of Section 90(4) of the Companies Act, 2013 read with Rule 4 of Companies (Significant Beneficial Owner) Rules, 2018 in the matter of: –
01.Gandhar Marketing Private Limited, Company
178, Ashwani Marg, Humad House, Delhi Gate, Udaipur, Rajasthan- 313001.
02.Yashwant Khurdia, Director
03.Pritesh Khurdia, Director
…. Respondents
Date of hearing — 20.03.2024
Present: –
01. Shri Ruvit Kumar, ROC-Cum-OL, Rajasthan, Jaipur
02. Shri Raunak Agrawal, AROC-cum-AOL, Rajasthan, Jaipur
03. Shri Himanshu Sharma, Advocate and authorized representative of the respondents.
ADJUDICATION ORDER
1. Appointment of Adjudicating Officer: –
WHEREAS the Ministry of Corporate Affairs vide its Gazette Notification No. SO 831 (E) dated 24.03.2015 appointed the Registrar of Companies/undersigned as Adjudicating Officer in exercise of the Power conferred by Section 454 of the Companies Act 2013 read with Companies (Adjudication of Penalties) Rules, 2014. The Registrar of Companies vide the Companies (Amendment) Act, 2019 is entrusted with power to adjudicate penalty as provided under Section 90 (11) of the Companies Act, 2013.
2. Respondent Company:
WHERAS Gandhar Marketing Private Limited (CIN U52190RJ2004PTC019337) is registered with this office under the provisions of Companies Act, 1956 and having its registered office at 178, Ashwani Marg, Humad House, Delhi Gate, Udaipur, Rajasthan-313001.
3. Relevant provisions of the Companies Act, 2013: –
WHEREAS as per the provision of section 90 (4) of the Companies Act, 2013 “Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed.”
WHEREAS as per provision of Rule 4 of the Companies (Significant Beneficial Owner Rule, 2018) “Upon receipt of declaration under rule 3, the reporting company shall file a return in Form No. BEN-20 with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of such declaration by it, along with the fees as prescribed in Companies (Registration offices and fees) Rules, 2014.”
WHERAS as per provision of section 90 (11) of the Companies Act, 2013 “If a company, required to maintain register under sub-section (2) and file the information under sub-section (4) or required to take necessary steps under subsection (4A), fails to do so or denies inspection as provided therein, the company shall be liable to a penalty of one lakh rupees and in case of continuing failure, with a further penalty of five hundred rupees for each day, after the first during which such failure continues, subject to a maximum of five lakh rupees and every officer of the company who is in default shall be liable to a penalty of twenty-five thousand rupees and in case of continuing failure, with a further penalty of two hundred rupees for each day, after the first during which such failure continues, subject to a maximum of one lakh rupees.”
4.Facts of the Case:
> That it has been observed during the procedural scrutiny of the e-Form MGT-7 filed by the respondent company wherein authorized person/signatory for filing of above e-Form has stated/mentioned that the respondent company has not filed e-Form BEN-2 with Registrar.
Further, the same has also been observed from the list of shareholders of the respondent company as at 31.03.2019 that that Shri Yashwant Khurdia and Shri Shanit Lal Khurdia were the SBOs in the respondent company and furnished their declaration(s) dated 06.05.2019 to the respondent company in From BEN-1. The same were required to file with Registrar by the respondent company upto 31.03.2020 (as per relaxation provided by the Ministry of Corporate Affairs vide General Circular No. 1/2020) pursuant to section 90(4) of the Companies Act, 2013 read with Rule 4 of the Companies (Significant Beneficial Owner) Rules, 2018. However, the respondent company has failed to file the same with the Registrar
> In view of the above, this office vide letter No. ROCJP/SCN/Sec 90/1274-76 dated 28.11.2023 has issued Show Cause Notice to the respondents. However, no reply in the matter has been received so far from the respondents.
> Further, this office has issued an Adjudication Notice dated 24.01.2024 to the respondents and fixed a date of hearing in the matter on 20.02.2024. Further, the company vide e-mail dated 19.02.2024 requested the Competent Authority to adjourn the time of hearing the matter.
The Competent Authority has decided to adjourn the date of the hearing in the matter and the matter has been fixed for hearing on 20.03.2024.
> That at the time of hearing on 20.03.2024, Shri Himanshu Sharma, Advocate and authorized representative of respondents has appeared in the matter and furnished its submission vide letter dated 20.03.2024 stating the respondent company has already filed e-Form BEN-2 with Registrar vide SRN F91453647 dated 31.01.2024.
> In view of the above facts, the undersigned has reasonable cause to believe that the provision of section 90 (4) of the Companies Act, 2013 read with Rule 4 of the Companies (Significant Beneficial Owners) Rules, 2018 have not been complied with by respondents and therefore liable for penal action under section 90 (11) of the Companies Act, 2013. Accordingly, in exercise the power of 454 (3) of the Companies Act, 2013, I inclined to impose a penalty on the company and its directors, as under: –
| Nature of default | Relevant section of the Companies Act, 2013 and Rules made thereunder |
Name
of persons on whom penalty imposed |
No. of defaulting days | Per day penalty for default (In Rs.) | Total default amount (In Rs.) | Maximum Limit for Penalty (In Rs.) | Final Penalty Imposed (In Rs.) |
| Non- filing of e-Form BEN-2 within prescribed time limit | Section 90(4) of the Companies Act, 2013 read with Rule 4 of the Companies (Significant Beneficial Owners) Rules, 2018 |
Blueton Paper Products Private Limited | 1399 | 1,00,000 +1399 * 500 | 7,99,000 | 5,00,000 | 500000 |
| Yash-want Khurdia | 1399 | 25,000 +1399 * 200 | 3,04,800 | 1,00,000 | 100000 | ||
| Pritesh Khurdia | 1399 | 25,000 +1399 * 200 | 3,04,800 | 1,00,000 | 100000 | ||
| Grand Total | 700000 | ||||||
| That the number of days calculated from 01.04.2020 to 29.01.2024. | |||||||
I am of this opinion that penalty is commensurate with the aforesaid failure committed by the respondents and penalty so imposed upon the Officers-in-default shall be paid from their personal sources/ income. It is further directed that penalty imposed shall be paid through the Ministry of Corporate Affairs portal only as mentioned under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 under intimation to this office.
5. Appeal against this order may be filed in writing with the Regional Director (NWR), Ministry of Corporate Affairs, Ahmedabad within a period of sixty days from the date of receipt of this order, in e-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 Companies Act, 2013 read with Companies (Adjudicating of Penalties) Rules, 2014).
6. 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.
7. In terms of the provisions of sub-Rule (9) of Rule 3 of the Companies (Adjudication of Penalties) Rules, 2014, copy of the order is being sent to the following: –
I. Gandhar Marketing Private Limited at 178, Ashwani Marg, Humad House, Delhi Gate, Udaipur, Rajasthan- 313001.
II. Yashwant Khurdia
III. Pritesh Khurdia
IV. Regional Director, NWR, Ministry of Corporate Affairs, Ahmedabad at ROC Bhavan, Opp. Rupal Park Society, Behind Ankur Bus Stop, Naranpura, Ahmedabad, Gujarat-380 013.
The adjudication notice stands disposed off with this order.
(RUVIT KUMAR)
ROC-cum-OL & Adjudicating officer,
Rajasthan, Jaipur
Place: Jaipur, Rajasthan.
File No. ROC-JP/SCN/Sec 90/777
Date:26/04/2024
