Quarterly, Half Yearly, Annual Compliances & Formation of New Pvt. Ltd. Company
♦ INTRODUCTION: The formation of the new company is quite a complex process and requires so much of time and efforts. Its Quarterly, Half Yearly and Annual Companiances are also one of the complex and time consuming task. In this article I had tried to explain the process of formation and its various compliances for the year.
♦ STEPS FOR THE NEW COMPANY FORMATION:
- Step 1: Promotion Stage
- Step 2: Registration Of Company (Incorporation Of Company)
- Step 3: Raising Of Capital
- Step 4: Commencement Of Business
Section 3: Formation of Company:
1. A Company may be formed for any lawful purpose by—
i. seven or more persons, where the company to be formed is to be a public company ;
ii. two or more persons, where the company to be formed is to be a private company ; or
iii. One Person, where the company to be formed is to be One Person Company that is to say, a private company, by subscribing their names or his name to a memorandum and complying with the requirements of this Act in respect of registration:
Provided that the memorandum of One Person Company shall indicate the name of the other person, with his prior written consent in the prescribed form, who shall, in the event of the subscriber’s death or his incapacity to contract become the member of the company and the written consent of such person shall also be filed with the Registrar at the time of incorporation of the One Person Company along with its memorandum and articles.
Provided further that such other person may withdraw his consent in such manner as may be prescribed.
Provided also that the member of One Person Company may at any time change the name of such other person by giving notice in such manner as may be prescribed.
Provided also that it shall be the duty of the member of One Person Company to intimate the company the change, if any, in the name of the other person nominated by him by indicating in the memorandum or otherwise within such time and in such manner as may be prescribed, and the company shall intimate the Registrar any such change within such time and in such manner as may be prescribed.
Provided also that any such change in the name of the person shall not be deemed to be an alteration of the memorandum.
2. A company formed under sub-section (1) may be either—
i. a company limited by shares; or
ii. a company limited by guarantee ; or
iii. an unlimited company .
Provided that a Specified IFSC public company shall be formed only as a company limited by shares.
Section 3A: Members severally liable in certain cases:
If at any time the number of members of a company is reduced, in the case of a public company, below seven, in the case of a private company, below two, and the company carries on business for more than six months while the number of members is so reduced, every person who is a member of the company during the time that it so carries on business after those six months and is cognizant of the fact that it is carrying on business with less than seven members or two members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.
- Note 1: In case of company with share capital it can commence the business only after completion of all the four stages.
- Note 2: In case of company without share capital it can commence the business after incorporation stage. (i.e. After 2nd stages.)
STEP 1: PROMOTION STAGE:
STEP 2: REGISTRATION OF COMPANY (INCORPORATION OF COMPANY)
Section 7:
Procedure for Incorporation of Company
1. Reservation of Name by Filling e-Application.
2. Drafting & signing of MOA & AOA and its submission to ROC. These documents have to be e-filed and e-stamped.
- Consent of persons nominated as director to act as director to be submitted electronically in DIR 2.
1. Submission of Statutory declaration of compliance and other declarations.
2. Pay fees and amount of stamp duty electronically.
3. Obtain certificate of incorporation digitally signed by ROC.
- File declaration about address of registered office.
♦ QUARTERLY, HALF YEARLY AND ANNUAL COMPLIANCES:
Sr. No. |
Particulars |
Relevant Section |
Relevant Rules |
Forms |
Descriptions Of Compliance |
Due Date |
Penalty (If Any) |
I |
Quarterly Compliance For April To June: |
||||||
1 |
Disclosures of interest by directors |
184(1) |
Rule-9 of companies (meetings of board and its power) rules, 2014 |
MBP-1 |
Disclosure of interest by director in any company or companies or bodies corporate (including shareholding interest), firms or other association of individuals. |
1st board meeting in which participate as director, 1st bod meeting after any change and 1st bod meeting in Avery F.Y. |
One lakh rupees |
2 |
Disqualification of directors |
164(2) |
Rule-14 of companies (appointment and qualification of directors) rules, 2014 |
DIR-8 |
Every director shall inform to the company about his disqualifications under section 164(2) of companies Act, 2013. |
Before appointment and reappointment |
– |
3 |
Half yearly return in respect of outstanding payments to micro or small enterprises |
405 |
– |
MSME-1 |
All companies who get supplies of goods or services from micro and small enterprises and whose payment to micro and small enterprises suppliers exceed 45 days from acceptance or the deemed acceptance of the goods or services |
For April to September – 31st October & for October to march – 30th April |
Company and officer in default – 25000, for continuing default 1000/ day subject to max. 300000/- |
II |
Quarterly Compliance For July To September: |
||||||
1 |
Return on foreign liabilities and assets |
– |
As per regulation of Fema, 1999 |
FLA return |
Shall have to be filed by all Indian companies who received FDI (foreign direct investment) and/or made FDI abroad during previous year including the current year |
On or before 15th July every year. In case if accounts are unaudited, first submit return on provisional basis and then submit the revised return based on audited accounts by 30th September |
As per FEMA regulation |
2 |
Directors KYC |
– |
Rule-12a of Companies (appointment and qualification of directors) rules, 2014 |
DIR 3-KYC |
Every individual who is holding din shall submit e-form dir-3 KYC |
On or before 30th sept. Of every year |
Rs. 5,000/- for not filling within due date. |
3 |
Annual general meeting (AGM) |
96 |
– |
– |
Every company other than OPC shall hold its – first AGM within 9 months from the closing of the 1st f. Y. Subsequent AGM within 6 months from the end of the financial year |
Not more than 15 months shall elapse between two AGM. Therefore its due date comes to 30th day of September from the end of F.Y. |
Penalty may extend to Rs.1,00,000 /- and for continuing default, a further fine which may extend to Rs.5,000/- per day till default continues. |
III |
Quarterly Compliance For October To December: |
||||||
1 |
Appointment of auditor |
139(1) |
– |
ADT-1 |
Appointment of first auditor of the company within 30 days of its incorporation. Then after appointment of auditor in AGM of company |
File e-form within 15 days from the date of AGM |
Section 147 (Non-compliance with section 139 to 146) – company shall be punishable with fine which shall not be less than Rs. 25,000/- but may extend up to Rs. 5,00,000/- |
2 |
Filing of the financial statements |
137 |
Rule-12 of the Companies (accounts) rule,2014 |
AOC-4 |
Every company shall have to file copy of financial statement of the company to the registrar |
File within 30 days of the date of annual general meeting (AGM) and in case of OPC, form aoc-4 shall be file within 180 days from the closure of the financial year |
Penalty for company: Rs. 10000/-, continuing failure Rs. 100/- each day, subject to max. Rs. 200000/-. And for officer in default: Rs. 10000/- , continuing failure Rs. 100/- each day, subject to max. Rs. 50,000/- |
3 |
Annual return |
92 |
Rule-11 of Companies (management and administration) rules, 2014 |
MGT-7 |
Every company shall have to file annual return to the registrar of companies |
Within 60 days from the date of AGM |
Penalty for company: Rs. 10000/- , continuing failure Rs. 100/- each day, subject to max. Rs. 2,00,000/-. And for officer in default: Rs.50,000/- .For company secretary – certifies the annual return in contravention of the provisions of this section or the rules made there under – penalty = Rs. 200000/- |
4 |
Certification of annual return |
92 |
Rule-11 of Companies (management and administration) rules, 2014 |
MGT-8 |
MGT-8 is required only:-in listed company or– the company having paid-up share capital of Rs.10 crores or more or– turnover of Rs.50 crores or more and the same shall be certified by company secretary in practice. |
MGT-8 is an attachment to the form MGT-7 |
|
5 |
Abridged annual return |
92 |
Rule-11 of Companies (management and administration) rules, 2014 |
MGT-7A |
Abridged annual return for OPCs and small companies from the financial year 2020-21 onwards |
Within 60 days from the date of AGM |
|
6 |
Income tax return |
139 of income tax act. |
– |
ITR-6 |
Income tax return |
3st October, of the relevant A.Y. (audit report is required to be filed by 30th September of relevant A.Y.) |
Penalty u/s 234F:penalty- when the total income of the person exceeds INR 5 lakhs: Rs. 5,000– any other case: Rs. 1,000 |
7 |
Board of directors report |
134 |
Rule-8 of the Companies (accounts) rules, 2014 |
AOC-4 |
Board of directors report should contain the matters specified in the rule 8 of the companies (accounts) rule, 2014 |
BOD report should be prepared and approved by bod before they are sign on behalf of bod by chairperson (authorised by bod), or by two directors, CEO, CFO etc.Report should be attached with the financial statement files u/s 137 |
Company shall be liable to penalty of Rs. 3,00,000/- and every officer who is in default shall be liable to penalty of Rs. 50,000/-. |
IV |
Quarterly Compliance For January To March: |
||||||
1 |
Board meetings and its notice |
173 |
– |
– |
1st BOD meeting – within 30 days on incorporation, and thereafter minimum 4 board meeting shall be held by the bod of the company and not more than 120 days shall intervene between two meetings; for OPC, small company and dormant company, minimum 2 board meetings are required and the gap between two meetings shall not be less than 90 days. Quorum: 2 or 1/3 of total w.e. is higher. (For section 8 company – BOD shall held at least one meeting within every 6 calendar month.) |
Notice of the meeting should be given at least 7 days prior to the date of bod meeting. Shorter notice than 7 days can also be given to transact the urgent business. |
Every officer of company whose duty is to give the notice shall be liable to penalty of Rs. 25000/- on contravention of the provisions of this section. |
2 |
Maintenance of statutory registers |
189 |
– |
– |
Mandatory registers – every company shall have to prepare:– register of director & key managerial personnel (KMP) and their share-holding register of member (MGT-1)– register of interest of the directors u/s 184– register of related party transactions u/s 188 |
– |
Every director of the company who fails to comply with the provisions of this section lible to penalty of Rs. 25000/-. |
♦ OTHER COMPLIANCES:
1. INCOME TAX COMPLINCES:
1. Quarterly payment of advance tax.
2. Filing of income tax return.
3. Tax audit mandatory in case turnover or gross receipts of business exceeds 1 crore.
4. Filing of tax audit report.
2. EVENT BASED COMPLINCES:
Besides The Annual Filings, There Are Various Other Compliances That Need To Be Compiled With On Occurrence Of Any Event In The Company. Here Are Specific Instances Of Such Events:
|
i. Change in the authorised share capital or the paid-up share capital of the company. |
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| ii. Allotment of new shares or transfer of new shares. | ||||||||||
| iii. Giving the loans to other companies. | ||||||||||
| iv. Giving the loans to directors. | ||||||||||
| v. Appointment of managing director or whole time director and their payments. | ||||||||||
| vi. When the bank account is opened and closed, or there is change in the signatories of the bank account of company. | ||||||||||
| vii. If there is appointment or change of the statutory auditor of the company. | ||||||||||
3. REGISTERES TO BE MAINTAINED BY PVT. LTD. CO.:
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