AS PER SECTION-117 OF COMPANIES ACT, 2013:
Sub- Section 1 of Section- 117: A Copy Of Every Resolution or any agreement, in respect of matters specified in sub-section (3) *** together with the explanatory statement under section 102, if any, annexed to the notice calling the meeting in which the resolution is proposed, shall be filed with the Registrar within 30 (Thirty) Days of the passing or making thereof in such manner and with such Fees as may be Prescribed Within The Time Specified Under Section 403.
CONSEQUENCES OF NOT FILING:
A. Additional fees:
As per Section 117(1) Every resolution or any agreement, in respect of matters specified in sub-section (3) is required to file with ROC in e-from MGT-14. If the Company failed to file same in e-form MGT-14 within 30 days of passing of resolution. Then additional feel will be applicable.
Delay beyond 270 days, the second proviso of section 403(1) of the Act may be referred.
If Company fails to file e-form within 30 days + additional 270 days (total 300 days) then provisions of section- 403(2) will applicable.
(1) Any document, required is submitting, filing, registering or recording, or any fact or information required or authorized to be registered under this Act, shall be submitted, filed, registered or recorded within the time specified in the relevant provision on payment of such fee as may be prescribed:
Provided that any document, fact or information may be submitted, filed, registered or recorded, after the time specified in relevant provision for such submission, filing, registering or recording, within a period of two hundred and seventy days from the date by which it should have been submitted, filed, registered or recorded, as the case may be, on payment of such additional fee as may be prescribed:
VIEW POINT: As per Language of Section given above, if a company fails to file E-form within 300 days from the date of passing of resolution company have to pay to Fees 12 times of Original fees Plus Compounding of Offence as per 403(2).
C. Penalty which can be Imposed is as per Section 403(2):-
Where a company fails or commits any default to submit, file, register or record any document, fact or information under sub-section (1) before the expiry of the period specified in the first proviso to that sub-section with additional fee, the company and the officers of the company who are in default, shall, without prejudice to the liability for payment of fee and additional fee, be liable for the penalty or punishment provided under this Act for such failure or default.
But there is A Way to get Save Company from Penalty Maximum Penalty:
Notwithstanding anything contained in this Act,—
(a) Where any application required to be made to the Central Government (MCA) under any provision of this Act in respect of any matter is not made within the time specified therein, that Government may, for reasons to be recorded in writing, condone the delay; and
(b) Where any document required to be filed with the Registrar under any provision of this Act is not filed within the time specified therein, the
Hence if a Company has passed resolution which was required to file with ROC in MGT-14, but failed to file e-form MGT-14 in this respect beyond 300 days, it needs to file application for condonation of delay with Central Government (MCA), so that the forms- CG-1 can be filed with Central Government.
Jurisdiction of compounding of MGT-14 is lying with the Ministry of Corporate Affairs (MCA), Delhi.
Sum so specified in order shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded.
In general for compounding of offence Company is required to ‘make default good’ before applying for compounding. But in case of compounding of MGT-14 MCA will not allow us to file MGT-14 until unless we don’t mention the SRN of filing of order of compounding in MGT-14. Therefore, in this situation Company will first go for the compounding then will file MGT-14.
PROCESS OF CONDONATION OF DELAY OF MGT-14:
|Preparation of Compounding Application||Preparation of Application for compounding of non-filing of MGT-14 on Letter head of the Company and signed by any Director, Company Secretary or officer of the Company.|
|Calling of Board Meeting||Company will call the Board Meeting as per Companies Act, 2013 and SS-1.|
|Calculate the amount of offence||Board will calculate the amount of the penalty as per the relevant section.|
|Holding of Board Meeting||Pass a resolution to file application with MCA for compounding of offence and authorize director of the Company and for preparation and signing of documents including application. Company will authorize any professional for follow up the matter with authority. Board will approve the application.|
|Filling of Form with MCA||PROCEDURE FOR MAKING APPLICATION:
Company will file the e-form CG-1 with MCA along with following attachments:
• Application for Compounding.
• Copy of Resolution for which MGT-14 was required to file.
• Board resolution to authorize any professional for follow up the matter with authority.
|Hearing before Authority||There is no specific provision in the Act, normally, MCA will give personal hearing and then pass a speaking order giving reasons. The hearing can be attended by Director/secretary/ officer of Company or by authorized representative like advocate or a practicing CA/ CMA/ CA.|
Before ordering composition of the offence, the Ministry of Corporate Affairs is required to follow the rules of natural justice, by giving an opportunity of hearing to the company, the officer in-default.
|Order by Authority||After hearing authority will issue the order of Compounding.|
|Payment of amount of order by Company||After the order, the compounding fees should be paid in appropriate account by way of challan and receipt challan should be produced to one compounding authority.|
|Filling of Order with ROC||After payment of compounding fee Company will file INC-28 with ROC along with following attachments:
• Copy of order
• Copy of challan of payment of compounding fees.
|Filing of MGT-14 with ROC||After filing of INC-28, Company will file MGT-14 by mentioning the SRN of INC-28 in e-form MGT-14.
Along with following attachments:
• Copy of order
• Copy of Resolution for which form was required to file
(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at [email protected])
Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. The observations of the author are personal view and the authors do not take responsibility of the same and this cannot be quoted before any authority without the written permission of the Author.