Introduction: The Ministry of Corporate Affairs, Government of India, through the Registrar of Companies (ROC) in Gujarat, Dadra & Nagar Haveli, has recently taken punitive action against Waheguru Coal Private Limited for non-compliance with Section 92(4) of the Companies Act, 2013. This article provides a comprehensive analysis of the case, the imposed penalty, and the implications for the company and its officers.
Detailed Analysis:
1. Background of the Case: Waheguru Coal Private Limited, a registered company in the state of Gujarat, faced allegations of failing to file its annual return, a requirement under Section 92(4) of the Companies Act, 2013. The case was brought before the Adjudicating Officer of the Registrar of Companies.
2. Legal Provisions Violated: Section 92(4) of the Companies Act mandates every company to file its annual return within sixty days from the date of the annual general meeting. Failure to comply with this provision results in penalties, as specified in Section 92(5) of the Act.
3. Adjudication Proceedings: The Adjudicating Officer, appointed by the Ministry of Corporate Affairs, issued a show cause notice to Waheguru Coal Private Limited and its officers for violating Section 92(1). Despite the opportunity for rectification, no response was received from the company. A hearing was scheduled, and the company was duly notified.
4. Penalty Imposed: The Adjudication Officer, after considering the facts and the absence of a satisfactory response, imposed penalties for non-filing of annual returns from 2015-16 to 2021-22. The penalties were calculated based on the provisions of Section 92(5), with additional considerations for the small company classification.
5. Factors Considered for Penalty: The Adjudication Officer considered factors such as the amount of disproportionate gain, loss caused to investors, and the repetitive nature of the default while determining the quantum of penalty. The penalties were individually specified for the company and its officers.
6. Appeal and Consequences: The company and its officers have the option to file an appeal within sixty days from the date of receiving the order. Failure to pay the imposed penalty within ninety days may result in fines and potential imprisonment for the officers.
7. Non-Compliance Consequences: The order emphasizes that failure to comply with the imposed penalties could lead to prosecution, with the company facing fines and officers facing imprisonment, as per the provisions of Section 454(8) of the Companies Act, 2013.
Conclusion: The penalty imposed on Waheguru Coal Private Limited serves as a stark reminder of the importance of timely compliance with statutory obligations. Companies and their officers must adhere to filing requirements to avoid severe consequences. The case underscores the Ministry of Corporate Affairs’ commitment to enforcing corporate governance and accountability, promoting transparency and adherence to legal provisions within the business community.
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GOVERNMENT OF INDA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES,
GUJARAT, DADRA & NAGAR HAVELI
ROC Bhavan, Opp. Rupal Park,
Nr. Ankur Bus Stand, Naranpura, Ahmedabad (Gujarat) – 380013.
Tel. No.: 079-27438531, Fax : 079-27438371
Website : www.mca,govin: Email: roc.ahmedabad@mca.gov.in
BEFORE THE ADJUDICATING OFFICER
REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
No. ROC-GJ/ADJ. ORDER/92(4)/ WAHEGURU COAL / Sec.454(3)/ 2023-24
Dated: 05 MAR 2024
ORDER FOR PENALTY UNDER SECTION 454 OF THE COMPANIES ACT, 2013 READ WITH COMPANIES (ADJUDICATION OF PENALTIES) RULES, 2014 FOR VIOLATION OF SECTION 92(4) OF THE COMPANIES ACT, 2013.
IN THE MATTER OF
WAHEGURU COAL PRIVATE LIMITED
(U23101GJ2010PTC062599)
Date of hearing -24.01.2024
PRESENT:
1. Shri Keerthi Thej N. (ROC), Adjudicating Officer
2. Shri Indrajit Vania (DROC), Presenting Officer
3. Company/Officers/Director/KMP/Authorized Representative: Absent
Appointment of Adjudication Authority: –
1. The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad. II dated 24.03.2015 has appointed the undersigned as Adjudicating Officer in exercise of the powers conferred under section 454 of the Companies Act, 2013 (hereinafter known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 (Notification No. GSR 254(E) dated 31.03.2014) for adjudging penalties under the provisions of Act.
Company:
2. WHEREAS, WAHEGURU COAL PRIVATE LIMITED (herein after referred to as “company”) is a company registered under the provisions of the Companies Act, 1956/2013 in the State of Gujarat, having CIN: U23101GJ2010PTC062599 and presently having its registered office situated at “A-104, Aagam Enclave-A, Near Someshwar Enclave, Vesu, Surat, Gujarat, 395007, India”,
3, Fact of the case:
WHEREAS, Sub-section (1) of Section 92 of the Act provides that every company shall prepare an Annual return in the prescribed form and Sub-section (4) of Section 92 provides that every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as applicable.
4. WHEREAS, Sub-section (5) of Section 92 of the provides that if any company fails to file its annual return under sub-section (4) of Section 92 of the Act, before the expiry of the period specified therein, such company and its every officer who is in default shall be liable to a penalty of ten thousand rupees and in case of continuing failure, with further penalty of one hundred rupees for each day after the first during which such failure continues, subject to a maximum of two lakh rupees in case of a company and fifty thousand rupees in case of an officer who is in default;
5. WHEREAS, Annual Return for the year ended 31.03.2016 to 3103.2023 in accordance with Section 92(4) of the Companies Act, 2013 should have been filed in this office within sixty days from the date on which the annual general meeting is held.
6. Whereas, the undersigned has reasonable cause to believe that the provisions of section 92(4) of the Companies Act, 2013 has not been complied with. The company and its officers in default have violated the provisions of section 92(4) of Companies Act, 2013 which may be adjudicated under the purview of section 454(3) of the Companies Act, 2013. The Company and every officer of the Company who is in default are liable to be penalized u/s 92(5) of the Companies Act, 2013.
Show Cause Notice and Reply/Submission of the Company/Director/Authorised Representative:-
7. Whereas, the office of the undersigned issued show cause notice under section 454 of the Companies Act, 2013 for violation of section 92(1) of the Companies Act, 2013 to the Company and its officers in default on 05.12.2023 with request to rectify the aforesaid default within 30 days of the notice. In this regard, no reply was received from the company till date. Meanwhile, the letters of company and its three directors are return back from Postal Authorities with remark of Left. Accordingly, the Office of the Registrar of Companies vide letter No. ROC-GJ/ADJ/Waheguru/ Sec.454 92(4)/ 2023-24/4864 to 4867 dated 11.01.2024 has made an official communication with the above-named company and its Directors and given opportunity of being heard on 24.01.2024 at 3.30 P.M. at the 0/o Registrar of the Companies, ROC Bhawan, Opp. Rupal Park Nr. Ankur Bus Stand, Naranpura, Ahmedabad-380013.
Submission of the Presenting Officer
8. The Presenting Officer submitted that, the company has violated Sub-section (5) of Section 92 of the Companies Act, 2013 which provides that if any company fails to file its annual return under sub-section (4) of Section 92 of the Act, the Adjudicating officer empowered to impose penalty under the provisions of section 454 r/w section 92(4) of the Companies Act, 2013.
9. The Presenting Officer has further submitted that it is observed from the Annual Return up to 30.09.2015 the paid-up capital of the company is Rs. 1,00,00,000/- and Turnover is Rs. 10,77,90,542.15. Hence, as per the Ministry’s Notification No. G.S.R. 700(E) dated 15.09.2022, in the light of Companies (Specification of definition details) Amendment Rules, 2022 with respect to the provisions of Section 2(85) of the Companies Act, 2013, the company fall under the ambit of “small company”. Therefore, the provisions of imposing lesser penalty as per the provisions of Section 446B of the Companies Act, 2013 shall be applied to the company.
EX-PARTE ORDER:
10. While adjudging quantum of penalty under section 92(4) of the Companies Act, 2013, the Adjudication Officer shall have due regard to the following factors, namely:
(a) The amount of disproportionate gain or unfair advantage, whenever quantifiable, made as a result of default.
(b) The amount of loss caused to an investor or group of investors as a result of the default.
(c) The repetitive nature of default.
11. With regard to the above factors to be considered while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the notice or loss caused to the investor as a result of the delay on the part of the notice to redress the investor grievance are not available on the record. Further, it may also be added that it is difficult to quantify the unfair advantage made by the notice or the loss caused to the investors in a default of this nature.
12. The undersigned has reasonable cause to believe that the company and its officer(s) in default(s) have violated the provision of section 92(1) of the Companies Act, 2013 by delay in filing of e-form MGT-7 for the financial year 2015-16 to 2022-2023. I hereby imposed penalty on the Company and its Officer(s) in default u/s 92(4) for violation of section 92(1) of the Companies Act, 2013 as per Table below: –
Default for non-filing of Annual Return 2015-16, 2016-17, 2017-18, 2018-19, 2019-20, 2020- 21, 2021-22,
Nature of Default |
Violation under Companies Act, 2013 |
Company/ Directors/Officers |
No. of Days for default |
Penalty for default (Rs.) |
Penalty to be imposed for Default (Rs.) |
Maximum Limit For Penalty (Rs) |
Penalty for Small company Section 446B of CA 2013 |
Non filing of Annual Return 2016-17 |
|||||||
Non filing of Annual Return 2016-17 |
Sec. 92(4) |
WAHEGURU COAL PRIVATE
|
7 Years |
10000+100 /Day |
10,000+2555*100=265500 |
2,00,000/- |
1,00,000/ |
DAVENDER SINGH BHATIA |
7 Years |
10000+100 /Day |
10,000+2555*100=265500 |
50,000/- |
25,000/- |
||
SUNEETA BHATIA |
7 Years |
10000+100 /Day |
10,000+2555 *100=265500 |
50,000/- |
25,000/- |
||
KARANDEEP SINGH BHATIA |
7 Years |
10000+100 /Day |
10,000+2555 *100=265500 |
50,000/- |
25,000/- |
||
Non filing of Annual Return 2017-18
|
Non filing of Annual Return 2017-18 |
Sec. 92(4) |
WAHE-GURU -COAL PRIVATE LIMITED | 6 Years
|
10000+100 /Day | 10,000+2190 *100=229000 | 2,00,000/- | 1,00,000/- |
| DAVEN-DER SINGH BHATIA | 6 Years
|
10000+100
/Day
|
10,000+730*
100=83000
|
50,000/-
|
25,000/-
|
||
| SUNEETA BHATIA | 6 Years
|
10000+100
/Day |
10,000+730*
100=83000 |
50,000/-
|
25,000/-
|
||
| KARAN-DEEP SINGH BHATIA | 6 Years
|
10000+100
/Day |
10,000+730*
100=83000 |
50,000/-
|
25,000/-
|
Non filing of Annual Return 2018-19
| Non filing of Annual Return 2018-19 | Sec. 92(4)
|
WAHE-GURU- COAL PRIVATE LIMITED | 5 Years | 10000+100 /Day | 10/000+730* 100=83000 | 2,00,000/- | 1/001000/– |
| DAVE-NDER SINGH BHATIA | 5 Years | 10000+100
/Day
|
10,000+730*
100=83000
|
50,000/- | 25,000/- | ||
| SUNEETA BHATIA | 5 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| KARAN-DEEP SINGH BHATIA | 5 Years
|
10000+100
/Day |
10,000+730*
100=83000 |
50,000/-
|
25,000/-
|
Non filing of Annual Return 2019-20
| Non filing of Annual Return 2019-20 |
Sec. 92(4) |
WAHE-GURU COAL PRIVATE LIMITED | 4 Years
|
10000+100 /Day
|
10,000+730*
100=83000
|
2,00,000/-
|
1,00,000/-
|
| DAVE-NDER SINGH BHATIA | 4 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| SUNEETA BHATIA | 4 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| KARAN-DEEP SINGH BHATIA | 4 Years
|
10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- |
Non filing of Annual Return 2020-21
| Non filing of Annual Return 2020-21 | Sec. 92(4) | WAHE-GURU COAL PRIVATE LIMITED |
3 Years | 10000+100 /Day | 10,000+730* 100=83000 | 2,00,000/- | 1,00,000/- |
| DAVE-NDER SINGH BHATIA | 3 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| SUNEETA BHATIA | 3 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| KARAN-DEEP SINGH BHATIA | 3 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- |
Non filing of Annual Return 2021-22
| Non filing of Annual Return 2020-21 | Sec. 92(4) | WAHE-GURU COAL PRIVATE LIMITED |
2 Years | 10000+100 /Day | 10,000+730* 100=83000 | 2,00,000/- | 1,00,000/- |
| DAVE-NDER SINGH BHATIA | 2 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| SUNEETA BHATIA | 2 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- | ||
| KARAN-DEEP SINGH BHATIA | 2 Years | 10000+100 /Day | 10,000+730* 100=83000 | 50,000/- | 25,000/- |
AO is of the opinion that penalty is commensurate with the aforesaid default committed by the Noticees:
13. The company/ Officer is further directed to rectify the default failing which this office shall proceed further in the matter pursuant to Section 454A of the Companies Act, 2013 for the non-compliance of the aforesaid provisions of the Companies Act, 2013.
14. The noticee shall pay the amount of penalty individually for the company and its officers from their personal sources/ income by way of e-payment available on Ministry Website mca.gov.in under “Pay Miscellaneous fees” category in MCA fee and payment Services under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 within 60 days from the date of receipt of this order and copy of this adjudication order and Challan/SRN generated after payment of penalty through online mode shall be filed in INC-28 under the MCA portal without further reference.
a. Appeal if any, against this order may be filed in writing with the Regional Director, North Western Regional, Ministry of Corporate Affairs, ROC Bhavan, Opp. Rupal Park, Nr. Ankur Bus stand, Naranpura, Ahmedabad (Gujarat) 380 013 within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by the certified copy of this order. (Section 454 of the Companies Act, 2013 read with the Companies (Adjudicating of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019).
15. Please note that as per the provisions of section 454(8)(i) of the Companies Act, 2013, company does not pay the penalty imposed by the Adjudication officer or the Regional Director within a period of Ninety days (90 days) from the date of the receipt of the copy or order, the company shall be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to five lakhs rupees. Further as per section 454(8)(ii) of the Companies Act, 2013, where an officer of a company who is in default does not pay the penalty within a period of Ninety days (90 days) from the date of receipt of the copy of the order, such officers 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 with both.
16. Your attention is also invited to section 454(8) of the Companies Act, 2013 in the event of non-compliance of this order which provides that in case of default in payment of penalty, prosecution will be filed u/s. 454(8)(ii) of the Companies Act, 2013 at your own costs without any further notice.
The adjudication notice stands disposed of with this order.
Registrar of Companies/
Adjudicating Officer
Gujarat, Dadra Nagar Haveli
