There is a lot of confusions amongst the professionals with respect to getting immunity certificate (filing Form CFSS after 1st October) for Form DPT-3 and other Forms whose due date falling between 01st April, 2020 and 30th September, 2020 and filed before 30th September, 2020. In this write up, we discuss and interpret the same.

In the Month of March, 2020, MCA issued two circulars:

1. MCA CIRCULAR DATED 24TH MARCH, 2020

In this circular, MCA came with some special measures under Companies Act, 2013 and Limited Liability Partnership Act, 2008 in view of COVID-19 outbreak (hereinafter called “Circular 1“).

The para 1 of the circular states that:

No additional fees shall be charged for late filing during a moratorium period from 01stApril 2020 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 noncompliant companies/ LLPs to make a ‘fresh start’. The Circulars specifying detailed requirements in this regard are being issued separately.

This para has two aspects:

  • It clearly stated that if due date of any e-forms including e-form DPT-3, MSME-1, FORM-11, SH-7 and other forms falls during a moratorium period from 01st April 2020 to 30th September 2020, then no additional fees will be levied on the Company, if such forms filed by the Company before 30th September, 2020.
  • It also enables long-standing noncompliant Companies/ LLPs to make a ‘fresh start’.

Interpretation of “The Circulars specifying detailed requirements in this regard are being issued separately”:

 After considering the above para, it can be interpreted as the circular specifying the detailed requirements would be needed only for the “Fresh Start”, as there is nothing apart from this which would require any separate circular.

2. MCA CIRCULAR DATED 30TH MARCH, 2020

In this circular, MCA introduced Companies Fresh Start Scheme, 2020” in furtherance of the MCA Circular 1 and in order to facilitate the companies registered in India to make a fresh start on a clean slate and to grant one-time opportunity for defaulting Companies whose returns, documents and forms are still pending to file in MCA Registry up to 31st March, 2020 (hereinafter called “Circular 2“).

The Circular 2 are in furtherance of Circular 1 and does not have any overriding effect. The CFSS is only for long standing non-compliant Companies I.e. Defaulting Companies.

In this Scheme, MCA excluded certain forms i.e. CHG-1, CHG-4, CHG-8 CHG-9 and SH-7. But later for giving benefit to those charges whose creations and modifications were before 01.03.2020, it came up with “Scheme for relaxation of time for forms related to creation or modification of Charges under Companies Act, 2013” on 17.06.2020.

Key comparison between Circular 1 and Circular 2

Particulars Circular 1 Circular 2
Motive Gives relaxation to Companies from Filing Forms due to COVID-19 outbreak. To grant one-time opportunity for non-compliant Companies for their pending compliances.
Applicability It applicable to all Companies from 01.04.2020 to 30.09.2020. It applicable to long standing non-compliant Companies (Defaulting Companies) from 01.04.2020 to 30.09.2020.
Period covering due date of forms If due date of forms falls between 01.04.2020 and  30.09.2020 If due date of forms falls before 01.04.2020.
Coverage of forms Cover all MCA Forms including SH-7 and CHG-4 Cover only 78 Forms.

(List is given at MCA portal)

Requirement of obtaining immunity certificate No requirement of obtaining immunity certificate by filing Form CFSS after 30th September. For taking benefit of the scheme, Companies are required to obtain immunity certificate by filing Form CFSS after 30th September, 2020

Conclusion:

 While going through all the above mentioned statements and explanations, it can be concluded that the CFSS scheme has been notified by the MCA with the motive to give an opportunity to long-standing defaulting companies to make all the pending compliances without levying any additional fees. On the other hand, the Circular 1 has its own objectives for providing easement to companies amid the COVID-19 Pandemic, which gives relaxations on levying additional fees on those forms whose due date falls between 01.04.2020 and 30.09.2020 without obtaining immunity certificate i.e. filing form CFSS after 30th September, 2020.

 Source: 1. https://taxguru.in/company-law/covid-19-special-relief-measures-companies-llp.html

https://taxguru.in/company-law/companies-fresh-start-scheme-2020.html

https://taxguru.in/company-law/mca-relaxes-time-file-forms-creation-modification-charges.html

(Written by CS Brajesh Kumar and edited by CS Rahul Das can be contacted at kumarbraj7@gmail.com and rahuldas151292@gmail.com for any kind of query and Corporate laws services)

DISCLAIMER: The information given in this document has been made on the basis of the provisions of the Companies Act, 2013 and Rules made thereunder. It is based on the analysis and interpretation of applicable laws as on date. The information in this document is for general informational purposes only and is not a legal advice or a legal opinion. You should seek the advice of legal counsel of your choice before acting upon any of the information in this document. Under no circumstances whatsoever, we are not responsible for any loss, claim, liability, damage(s) resulting from the use, omission or inability to use the information provided in the document

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8 Comments

  1. kumarbraj7@gmail.com says:

    To all viewers,

    MCA press release dated 30.03.2020 clearly states that CFSS is only for long standing non compliant companies.

  2. Divesh Goyal says:

    One last point in ur article in coverage u mentioned that chg means charge forms covered under earlier circular. Is it so then why mca came with seperate scheme for charge form?

    1. kumarbraj7@gmail.com says:

      Divesh Ji if we see the language of charge scheme it exclude the period from March to September from calculation of 120 days. If Charge is created on any date between March to Sept. it can be file with normal fees till 30th September without any immunity certificate.

      MCA came with this scheme because CFSS is not applicable on them and giving benefit to those charge created before 1st March, 2020.

      If a chege is created on 1st January, 2020 then which circular cover this case…..24th March or 30th March…..please think about it…

      MCA came with charge scheme to giving benefit to those chages created before 1st March, 2020.

  3. Divesh Goyal says:

    Circular dated March 23, 2020 talked about moratorium from April to Sep 2020 but linked it to fresh start (thereby not only covered new filings coming up as per due date but also the belated filings)
    It also talked about the fact that circular specifying detailed requirements in this regard would be issued separately.

    On March 30, Ministry issued a circular regarding CFSS.
    Circular began w ith “ In Furtherance of the Circular dated 24th March….

    And gone on talk about moratorium period (Apr to Sep) and compliance ritual i.e CFSS form filing.

    Hence:
    Moratorium period of Apr to Sep is for all filings( new and old forms); and
    CFSS Form is required to be filed after Sep 2020 for all forms filed after due date : for example, if you file DPT 3 today- then you must fole CFSS form as there is a delay of 1 day.

    1. kumarbraj7@gmail.com says:

      Divesh ji,

      1. What do you mean by “default” as per the Companies Act, 2013?

      2. Why MCA used the word “belated” in applicability of CFSS when circular came in i.e. 30th March?

      3. Whats your interpretation by preamble of CFSS? Why MCA Mentioned in preamble of CFSS the words like “one time opportunity”, “in order to give such opportunity”, “pending compliances and “belated documents”?

      If we read circular dated 30.03.2020 as whole we can only interpret this cfss is only giving one time opportunity for Companies.

  4. Divesh Goyal says:

    Further dear, where it is mentioned in cfss circular that it is for long standing defaults can u please send us extraxt of same.

    Fuhrer, as per circular only mentioned its for defaulting companies and

    If u read definition defaulting means company who fail to file any form, return and document.

    No where mentioned that pending form on or before 31.3.2020

    1. CS RAHUL DAS says:

      Dear Devesh Ji,

      Only one question want to clarify my doubt, what is the difference between levying of additional fees and penalty on companies (e.g w.r.t section 92, 117 or 137).. Whether the companies making default under these sections and penalties has been imposed by MCA will be considered as defaulting companies ?

      And if only additional fees is levied by MCA then also such companies will be treated as defaulting companies?

      Answer is simple long standing non compliant companies are treated as defaulting. And as on 30.03.2020 MCA used the word belated return in applicability, so i think a simple “meaning” given in the circular “CFSS Scheme” cannot override the whole sections and provisions of Companies Act.

      Please correct me if i am wrong. Sir, apart from complying the circular by letter and spirit we also need to see the purpose of MCA for introducing such scheme for corporates’ and the reason for extension of filings.

      Regards
      CS Rahul Das

    2. kumarbraj7@gmail.com says:

      Divesh Ji,

      I agree with you that circular mentioned only definition of defaulting Company but what is meaning of “default” used in the definition as per the Companies Act, 2013.

      The word “default” arrives in many sections of Act which is use in respect of penalty and punishment.

      For example, Section 92 says about filing of annual return within 60 days from the AGM but Company is not file within prescribed time then it is “default” under the Act…therefore defaulting companies are those co. which has made default in filing like in Section 92.

      please interpret definition in this sense.

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