Introduction: The Ministry of Corporate Affairs, through the Registrar of Companies, Chennai, has levied penalties against M/s Vivan Trade Impex Private Limited for non-compliance with Section 92 of the Companies Act, 2013. The company failed to file its annual return for the financial year ending on 31.03.2018, leading to regulatory action by the authorities.
Background: M/s Vivan Trade Impex Private Limited is a registered company under the Companies Act, 2013, with its registered office located at No.61, Sembudoss Street, II Floor, Chennai, Tamil Nadu. The company’s financial information as available on the MCA-21 portal indicates a lack of revenue from operations, other income, or profit for the period, and it has not filed financial statements and annual returns since 31.03.2018.
Directors: The company’s sole director, Mr. Sanjay Kumar Sharma, who serves as the Whole-time Director, has been identified as the officer in default concerning the non-filing of annual returns.
Legal Provision and Violation: Section 92 of the Companies Act, 2013, mandates every company to file its annual return with the Registrar of Companies within sixty days from the date of the annual general meeting. Failure to comply with this provision incurs penalties for the company and its officers in default.
Adjudication Process: The Registrar of Companies initiated an inquiry under Section 206(4) of the Companies Act, 2013, after which show cause notices were issued to the company and its officers. Despite the notices, no response was received. Subsequently, an adjudication hearing was scheduled, but the company failed to attend. Finally, a final hearing was conducted, during which Mr. Sanjay Kumar Sharma appeared and expressed willingness to accept the prescribed penalty.
Decision and Penalty Imposition: Considering the non-compliance and the submissions made during the final hearing, the adjudicating officer concluded that the company and its officer in default are liable for penalties as per Section 92(5) of the Companies Act, 2013. The penalty was calculated based on the number of days of default, amounting to Rs. 1,88,600 for the company and Rs. 50,000 for Mr. Sanjay Kumar Sharma. The total penalty imposed is Rs. 2,38,600 for the financial year 2017-18.
Payment and Appeal: The company and its officer in default are required to pay the imposed penalties online through the MCA portal within 90 days of receiving the order. They also have the option to file an appeal against the order with the Regional Director (SR), Ministry of Corporate Affairs, within 60 days.
Consequences of Non-Compliance: Non-compliance with the order within the specified period may result in further fines or imprisonment as per Section 454(8) of the Companies Act, 2013.
Conclusion: The penalty imposed on M/s Vivan Trade Impex Private Limited underscores the importance of adhering to regulatory requirements concerning the filing of annual returns. Companies and their officers must ensure timely compliance with statutory obligations to avoid legal consequences and maintain corporate governance standards.
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GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF REGISTRAR OF COMPANIES, TAMIL NADU, ANDAMAN & NICOBAR ISLANDS, CHENNAI
II FLOOR, C- WING, SHASTRI BHAVAN, 26, HADDOWS ROAD, NUNGAMBAKKAM, CHENNAI- 6
F.NO.ROC/CHN/VIVAN TRADE/ADJ/S.92/2024 DATE: 19 MAR 2024
ADJUDICATION ORDER UNDER SECTION 92 OF THE COMPANIES ACT, 2013
IN THE MATTER OF M/S VIVAN TRADE IMPEX PRIVATE LIMITED
1. Appointment of Adjudicating Officer:‑
The Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014- Ad.II, dated 24.03.2015 has appointed Registrar of Companies, Chennai as Adjudicating Officer in exercise of the powers conferred by section 454(1) of the Companies Act, 2013 (hereinafter referred as Act or Companies Act, 2013) r/w Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.
2. Company: ‑
Whereas the company viz M/s. Vivan Trade Impex Private Limited with CIN: U74999TN2016PTC113208 (herein after referred as ‘company’ or ‘subject company’) is a registered company with this office under the Companies Act, 2013 having its registered office as per MCA21 Registry at No.61, Sembudoss Street, II Floor, Chennai, Tamil Nadu. The financial & other details of the subject company as available on MCA-21 portal is stated as under:
| S. No. | Particulars | Details as per FY 2016-17 |
| 1. | Paid up Capital | Rs. 1,50,000/‑ |
| 2. | a. Revenue from Operation | NIL |
| b. Other Income | NIL | |
| c. Profit for the Period | NIL
Note: The company has not filed financial statements and Annual Return since 31.03.2018 |
|
| 3. | Whether it is a Holding Company | No |
| 4. | Whether it is a Subsidiary Company | No |
| 5. | Whether company registered under Section 8 of the Act? | No |
| 6. | Whether company is a small company? | No |
| 7. | Whether company registered under any other special Act? | No |
Directors
| S.No. | Name of Director Default | Designation | Date of Appointment | Date of Cessation |
| 1. | Sanjay Kumar Sharma | Whole time Director | 07.11.2016 | ….. |
Section and Penal Provision as per Companies Act, 2013
Section 92 of the Companies Act, 2013- Annual Return:
4) 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 may be prescribed.
(5) If any company fails to file its annual return under sub-section (4), 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 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. Issue of Adjudication Notice:
This Office has conducted an Inquiry U/s 206 (4) of the Companies of the Companies Act, 2013 in the matter of M/s. Vivan Trade Impex Private Limited. The Inquiry report states that the company has not filed Annal Returns and Balance sheet for the financial year ending on 31.03.2018. After that this office has issued show cause for adjudication vide letters (i) No.ROC/CHN/113208/S.92/P.2/INQUIRY FOLLOW UP/ 2020 on 06.05.2022 to the company and its Officers in default for non-compliance of Section 92 of the Companies Act, 2023.
6. Reply of Company and Directors for Adjudication Notice issued:
No reply has been received from the company and its directors.
7. Adjudication Hearing:
Since no reply has been received from the company and its directors for the Adjudication notice, this office had issued Adjudication Hearing Notice to the subject company and Officers in default on 15.09.2023 fixing the hearing date as 21.09.2023 at 03:30 PM. No response was received for the hearing notice dated 15.09.2023 and neither the authorized representative of the company nor the Directors attended the hearing on 21.09.2023. Hence, this office fixed final hearing for the said violation on 19.10.2023 at 03:.00PM vide notice dated 13.10.2023 and served the same through Post and email.
Pursuant to the hearing notice dated 13.10.2023, Shri. Sanjay Kumar Sharma, Whole Time Director has appeared before the Adjudicating Authority on 19.10.2023 at 03:00 PM and made submissions that “the said violation may be adjudicated and accepted to pay the penalty as prescribed under Section 92(5) of the Companies Act, 2013”.
8. Decision
Having considered the facts and circumstances of the case and after taking into account the factors above, it is concluded that (i) the company and its officers in default are liable for penalty as prescribed under Section 92(5) of the Act for non-filing of Annual Return for the Financial Year ending on 31.03.2018.
- Financial Year 2017-18 for 1786 days i.e, by considering the AGM was conducted on 30.09.2018, 60 days from the date of AGM i.e, 29.10.2018 to 19.10.2023 (both days are included)
Accordingly, I am inclined to impose a penalty as prescribed under Sub-section 5 of Section 92 of the Companies Act, 2013. The details of the penalty imposed on the company and officers in default are shown in the table below:
I. FY 2017-18
|
Name of person on whom penalty imposed |
No of days of default | Penalty for default (Rs) | Total Penalty (Rs) | Maximum Limit for penalty (Rs) | Penalty Imposed (Rs) |
| M/s. Vivan Trade Impex Private Limited, Company | 1786 days | Rs.10,000 + Rs.100 per day (for continuing failure) | 10,000 + 1786 x 100= 1,88,600 | 2,00,000 | 1,88,600 |
| Mr. Sanjay Kumar Sharma, Whole time Director | 1786 days | Rs.10,000 + Rs.100 per day (for continuing failure) | 10,000 + 1786 x 100= 1,88,600 | 50,000 | 50,000 |
Therefore, in view of the above said violation, in exercise of the powers vested to the undersigned under Section 454(1) & (3) of the Companies Act, 2013 a penalty of Rs.1,88,600/- (Rupees One lath eighty eight thousand six hundred) is imposed on the Company and Rs.50,000/- (Rupees Fifty thousand) is imposed on the Officer in default. Totally Rs. 2,38,600/- (Rupees Two laths thirty eight thousand six hundred) as penalty amount for the FY 2017-18.
9. The said amount of penalty shall be paid through online by using the website mca.gov.in(Misc. head) within 90 days of receipt of this order, and intimate this office with proof of penalty paid.
10. Whereas Appeal against this order may be filed with the Regional Director (SR), Ministry of Corporate Affairs, 5th Floor, Shastri Bhavan, 26 Haddows Road, Chennai600006, Tamil Nadu within a period of sixty days from the date of receipt of this order, in Form ADJ [available on Ministry website www.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 Act read with Companies (Adjudicating of Penalties) Rules, 2014].
11. Your attention is also invited to section 454(8) of the Act in the event of non-compliance of this order, “(8)(i) Where company fails to comply with the order made under subsection (3) or sub-section (7), as the case may be within a period of ninety days from the date of the receipt of the copy of the order, 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.
(ii) Where an officer of a company or any other person who is in default fails to comply with the order made under sub-section (3) or sub-section (7), as the case may be within a period of ninety days from the date of the receipt of the copy of the order, such officer 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.”
(B. SRIKUMAR, ICLS)
REGISTRAR OF COMPANIES
TAMILNADU, CHENNAI.
ADJUDICATING OFFICER
