Introduction: The Ministry of Corporate Affairs has imposed a penalty on Richeng Optical Electronics Pvt Ltd for failing to file Form DIR-12 regarding the resignation of a director. This arti-cle delves into the details of the case, the implications, and the appeal process.
Detailed Analysis:
1. Background: Richeng Optical Electronics Pvt Ltd, registered under the Companies Act, 2013, failed to comply with Section 168(1) by not filing Form DIR-12 for the resignation of a director, Mr. Kapil Dev.
2. Penal Provisions: Section 172 of the Companies Act, 2013 outlines penalties for non-compliance. The company and its officers in default face penalties for such violations.
3. Show Cause Notice: Despite receiving a show cause notice and a 15-day response period, neither the company nor its directors responded, indicating acknowledgment of the violation.
4. Date of Default: The default date, set as 07.05.2022, marks the deadline for filing DIR-12, as per the Companies Act and its rules.
5. Penalty Calculation: The penalty imposed on the company amounts to Rs. 1,50,000, while directord faces a penalty of Rs. 1,50,000, totaling Rs. 3,00,000.
6. Appeal Process: The order allows for an appeal within 60 days to the Regional Director, Ministry of Corporate Affairs, in a prescribed format (Form ADJ).
7. Compliance Requirement: The notice mandates payment through the MCA portal within 90 days and filing of Form INC-28 along with the adjudication order.
Conclusion: The imposition of penalties underscores the importance of compliance with statutory provisions. Richeng Optical Electronics Pvt Ltd and its directors must adhere to the regula-tory framework to avoid legal ramifications. The article highlights the necessity of timely filings and ad-herence to corporate governance norms to maintain transparency and accountability.
By understanding the case of Richeng Optical Electronics Pvt Ltd, businesses can mitigate risks associated with non-compliance and ensure smooth operations within the regulatory framework.
*****
GOVERNMENT OF INDIA MINISTRY OF CORPORATE AF-FAIRS
OFFICE OF REGISTRAR OF COMPANIES,
UTTAR PRADESH,
37/17, Westcott Building, The
Kanpur — 208001 (U.P.)
Phone : 0512 — 2550688/2540383
Fax 0512 — 2540423
Website : www.inea.gov.in
E-mail : roc.kanrourpmca.ukv.in
Order No.LC/ACN/ROC/UP/2022/Richeng/ Date: 16/02/2024
ORDER FOR VIOLATION OF SECTION 168 OF THE COMPANIES ACT, 2013 READ WITH COM-PANIES (ADJUDICATION OF PENALTIES) RULES, 2014.
IN THE MATTER M/S RICHENG OPTICAL ELECTRONICS PRIVATE LIMITED.
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 by section 454 of the Companies Act, 2013 (hereinafter known as Act) read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.
2. The Company RICHENG OPTICAL ELECTRONICS PRIVATE LIMITED has been registered under the provisions of the Companies Act, 2013 on 06.08.2019, and is having its registered office situated at B-035, Kasna Ecotech 1 Extension, Greater Noida, Gautam Buddha Nagar, Uttar Pra-desh-201308.
3. That as per Ministry/Directorate’s order an inquiry was conducted during the inquiry it was observed that Mr. Kapil Dev, Director of the company has tendered his resignation by filing form DIR-11(SRN: T94351707) on 07.04.2022. However, the Company has not filed DIR-12 with respect to resignation of Mr. Kapil Dev.
Hence, it is non-compliance of Section 168(1) of the Companies Act, 2013 read with Rule 15 of Companies (Adjudication of Penalties) Rules, 2014.
The penal action as contemplated under 172 of the Companies Act, 2013, to be initiated against the Company and its officers in default for non-compliance of Section 168(1) of the Companies Act, 2013 read with Rule 15 of Companies (Appointment of Directors) Rules, 2014.
4. (i) Section 168(1) of the Act provide that A director may resign from his office by giving a notice in writing to the company and the Board shall on receipt of such notice take note of the same and the company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place the fact of such resignation in the report of directors laid in the immediately following general meeting by the company:
Provided that a 3[director may also forward] a copy of his resignation along with detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed.
(ii) Section 172 of the Act reads as under:- If a company is in default in complying with any of the provisions of this Chapter and for which no specific penalty or punishment is provided therein, the company and every officer of the company who is in default shall be liable to a penalty of fifty thousand rupees, and in case of continuing failure, with a further penalty of five hundred rupees for each day during which such failure continues, subject to a maximum of three lakh rupees in case of a company and one lakh rupees in case of an officer who is in default.]
5. This office has issued show cause notice No. LC/ACN/ROC/UP/2022/Richeng/5662 to 5665 dated 21.11.2023 to the company and its directors giving 15 days time to reply.
6. Further, neither the company nor its directors or their representatives have either furnished reply which has established the opinion that the company and its directors have nothing to say in the matter. Thus the company and its directors have violated the provisions of Section 168 the Act and liable to penalty as per Section 168 read with Companies (Adjudication of Penalties) Rules, 2014 read with Companies (Adjudication of Penalties) Rules, 2014 of the Companies Act, 2013.
7. The date of default in the matter has been taken as 07.05.2022 i.e. the date on which the company has to file DIR-12 with the Ministry of Corporate Affairs as per Section 168 read with Rule 15 of the Companies (Appointment and Qualification of Directors) Rules, 2014.
8. Further, Section 4468 of the Companies Act, 2013 provides that —
446B. Notwithstanding anything contained in this Act, if penalty is payable for noncompliance of any of the provisions of this Act by a One Person Company, small company, start-up company or Producer Company, or by any of its officer in default, or any other person in respect of such company, then such company, its officer in default or any other person, as the case may be, shall be liable to a penalty which shall not be more than one half of the penalty specified in such provisions subject to a maximum of two lakh rupees in case of a company and one lakh rupees in case of an officer who is in default or any other person, as the case may be.
9. Having considered the facts and circumstances of the case and after taking into account the factors above, I hereby impose a penalty of Rs.3,00,000/- (Rupees three lakh only) [Rs. 50000 + 294500 = Rs. 344500/- but the maximum penalty prescribed as per section 172 of the Act is Rs. 300000/- maximum] on the company and penalty of Rs. 1,00,000/-maximum on each Director (3), total penalty Rs. 6,00,000/- (Rupees four Lakh only) under section 168 read with Section 172 r/w Rule 15 of the Companies (Appointment and Qualification of Directors) Rules, 2014 for failure to make compliance of Section 168 of the Companies Act, 2013. I am of the opinion that penalty is commensurate with the aforesaid failure committed by the Noticee.
(Penalty calculation for the Company)
|
Date of filing DIR-I1 |
Due date of filing of the DIR-12 As per Rule 15 of the Companies (Appointment and Qualification of Directors) Rules, 2014. |
Per day penalty for non-filing of the DIR- 12 within due date (In Rs.) (3) | Total no. of days of default as on date (4) |
Total Penalty (In Rs.) (5=3X4) | Total Maximum penalty (In Rs.) as per Section 172 of the Act. | Revised Penalty in view of Section 446B of the Act. |
| 07.4.2022 | 07.05.2022 | 500 | 646 | 323000/- (for continuing failure) |
Rs.
3,00,000 |
Rs.
1,50,000 |
| Initial Penalty |
50000/- | |||||
| Total | 373000/- |
(Penalty calculation for Directors)
|
Date of filing D1R-11 |
Due date of filing of the DIR-12 As per Rule 15 of the Companies (Appointment and Qualification of Directors) Rules, 2014. |
Per day penalty for non-filing of the DIR-12 within due date (In Rs.) (3) | Total no. of days of default as on date (4) |
Total Penalty (In Rs.) (5=3X4) | Total Maximum penalty (In Rs.) as per Section 172 of the Act. |
Revised Penalty in view of Section 446B of the Act. |
| 07.4.2022 | 07.05.2022 | 500 | 646 | 323000/- (for continuing failure) 50000/- |
Rs. 3,00,000 | Rs. 1,50,000 |
| Initial Penalty |
||||||
| Total | 373000/- |
10. The Noticee shall pay the amount of penalty so imposed through MCA2I portal only as per rule 3(14) of the Companies (Adjudication of Penalties) Rules, 2014 within 90 days receipt of this order. The company needs to file 1NC-28 as pr the provisions of the Act, attaching the copy of adjudication order alongwith paid challan.
11. Appeal against this order may be filed in writing with the Regional Director (Northern Region), Minis-try of Corporate Affairs, COO Complex, Lodi Road, New Delhi, 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 a certified copy of this order. [Section 454(5) & 454(6) of the Act, read with Companies (Adjudication of Penalties) Rules, 2014.
12. Your attention is also invited to section 454(8) of the Companies Act, 2013, in the event of noncompliance of this order. In Case appeal is made 0/o Registrar of Companies, U.P. may be informed alongwith the penalty imposed & the payments made.
(Seema Rath)
Registrar of Companies &
Adjudicating Officer
Uttar Pradesh, Kanpur.
No. LC/ACN/ROC/UP/2022/Richeng/7178 to 7183
