It’s a common question amongst many professionals, mentioned below with hypothetical situation:
If a company fails to file Active form, status of form changed as Active Non Complaint.
This situation us facing by many corporates and professionals these days. These companies are ‘Active non compliant’. In this editorial author trying to discuss the situation step wise step.
Process of change in Status:
If a Company fails to file Active form then Status shall be changed as “Active Non Compliant” and company shall not be allowed to file following forms:
In simple word it is very difficult situation for a company if its status changed as “Active Non Compliant”. Now let’s discuss the same on the point view of hypothecation situation mentioned above.
Out of 3 Directors 2 has not filed their DIR-3 KYC and non co-operating in filing of KYC. Due to non filing of DIR-3 KYC their DIN are deactivated. Now how to appoint new Director to file pending annual forms with ROC, to update Annual Compliances?
As per Companies (Incorporation) Eighth Amendment Rules, 2019 on 16th October, 2019, MCA has amended rule 25A as given below:
Legal Provision Company can’t file DIR-12 for change in director, except situations mentioned below:
One can opine:
As per amended rules MCA allowing filing e-form DIR-12 by the Company, where DIN of directors deactivated due to non filing of DIR-3 KYC. Therefore, one can opine that company can file DIR-12 for appointment of new Director where other directors not updated their KYC.
Now question arise how to appoint new Director:
As there are 3 directors in the company in given example. They can appoint new director in meeting of board of Directors as Additional Director or call an EGM for appointment of Director.
Due to deactivation of DIN, Company is not able to file Annual Forms (AOC-4/ MGT-7)
After completion of Step-I. Now there are four directors on the Board of Company. Out of 4 directors DIN of 2 directors are de-activated. As DIN of 2 directors are de-activated company can’t file annual Forms.
Therefore, now question arise regarding removal of these two directors:
Company has to follow the process of removal of Director u/s 169 of Companies Act, 2013 and after completion of process have to file DIR-12 for cessation of such Directors. Company in ‘Active non compliant status’ still allowed to file DIR-12 for cessation of Directors.
After cessation of directors, now there are two directors on the board of Directors and both having active DIN Status.
Company shall proceed further for filing of AOC-4 and MGT-7 for all the pending financial years. Once companies complete filing of Annual form, such company shall be eligible for filing of ACTIVE form.
Filing of ACTIVE form.
After completion of annual filing company shall file ACTIVE form with additional fees. Just after filing of Active form status of company shall be changed to ACTIVE.
Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at [email protected]