In this article, we will discuss about the Condonation of Delay Scheme 2018, the Procedure to be followed and how DIN can be restored even after Condonation of Delay Scheme (CODS Scheme, 2018).

Background

MCA had disqualified over 3 lakh directors vide its circular dated 6th September, 2017 and 12th September, 2017 respectively. The Disqualification is done by MCA under Section 164 (2) and Section 167 (1) of the Companies Act, 2013 as the directors had failed to file financial statements or annual returns of the Company for the continuous period of 3 years.[1]

As a result of their action, there had been several representations from the Industry, defaulting Companies, Corporates and their Directors seeking an opportunity for the defaulting companies to become compliant and normalize their operations. Also, several Writ Petitions had been filed before Various High Courts in India by the Directors seeking relief from their disqualification.[2]

Hence, to give an opportunity to the non-compliant, defaulting companies to rectify their default, the MCA had introduced Condonation of Delay Scheme, 2018 (also referred to as the “CODS Scheme”), through a general Circular No.16/2017 on its official website.[3]

Condonation of Delay Scheme, 2018

The Government notified the Condonation of Delay Scheme, 2018 (also referred to as the “CODS Scheme”), through a general Circular No.16/2017 on its official website on 29.12.2017 effective from (1st January, 2018 to 31st March, 2018)[4] which is later extended to 1st May, 2018 through a official circular no. 3/2018 dated 27.4.2018.[5]

Eligibility Criteria :

This Scheme is applicable to only existing defaulting Companies and they can avail the benefit under the said Scheme. The Companies whose name had been struck off by the Registrar from the Registrar of Companies under Section 248 (5) of the Companies Act, 2013 cannot avail benefit under the said Scheme. The term “Defaulting Company” and the “Designated Authority” are explained below:

Defaulting company means a company which has not filed its financial statements or annual returns as required under the Companies Act, 1956 or Companies Act, 201.3, as the case may be, and the Rules made thereunder for a continuous period of three years.[6]

Designated authority” means the Registrar of Companies having jurisdiction over the registered office of the company.

The Prescribed Forms to fill under the Scheme are:

i) Form Number 208/MGT-7- Form for filing company having share capital.

ii) Form 21A/MGT-7- Particulars of Annual return Annual return by a for the company not having share capital.

iii) Form 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4(CFS), AOC (XBRL) and AOC-4(non-XBRL) – Forms for filing Balance Sheet/Financial Statement and profit and loss account.

iv) Form 66 – Form for submission of Compliance Certificate with the Registrar.

v) Form 238/ADT-1- Form for intimation for Appointment of Auditors.

Procedure to be followed:

i) The DINs of the concerned disqualified directors de-activated at present, shall be temporarily activated during the validity of the scheme to enable them to file the overdue documents.

ii) The defaulting company shall file the overdue documents in the respective prescribed E-Forms paying the statutory filing fee and additional fee payable as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014 for filing the overdue documents.[7]

iii) The defaulting company after filing documents under this scheme shall seek condo nation of delay by filing form e-CODS attached to the scheme online on the MCA21 portal. The fee for filing application E- form CODS is Rs.30,000/- (Rs. Thirty Thousand only).

iv) The DINs of the Directors associated with the defaulting companies that have not filed their overdue documents and the E-form CODS, and these are not taken on record in the MCA21 registry and are still found to be disqualified on the conclusion of the scheme in terms of section 164(2) (a) r/w Section 167(1) (a) of the Act shall be liable to be deactivated on expiry of the scheme period.

v) The defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN of such Companies shall be re-activated only NCLT order of revival subject to the company having filing of all overdue documents.

Restoration of DIN after Condonation of Delay Scheme (CODS), 2018

After the Condonation of Delay Scheme, 2018 got expired on 1.5.2018. Several Directors of the Companies approached the High Court as well as National Company Law Tribunal (“NCLT”) in order to restore their DIN’s as well as revive their Companies under Article 226 of the Constitution of India (for issuance of Writ of Certiorari) for setting aside the disqualification of Directors and restoring their companies and under Section 252 of the Companies Act, 2013 for revival of Companies and Restoration of their DIN’s respectively.

Also, the Ministry of Corporate Affairs (MCA) had issued a general Circular No.5/2018 dated 17.5.2018 regarding clarification of Condonation of Delay Scheme, 2018. It states that where petitions have already been filed before NCLT under section 252 of the Companies Act 2013, during the currency of the scheme and orders are pending before the NCLT then, such struck off companies can file CODS upon obtaining orders for the same even after 01.05.2018.

It states that defaulting companies whose names have been removed from the register of companies by the ROC and the Companies which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director’s DIN of such companies shall be re-activated only NCLT Order provided the Company had filed all the overdue documents. Also, in such cases , the ROC will raise a ticket through Change Requirement Form (CRF) on MCA21 portal along with copy of NCLT order and the E-governance shall activate DIN of the director of such struck off companies that have been revived through NCLT to file e-CODS, 2018.[8]

And, the directors whose DINs are proposed to be activated through CRF should not be directors on any other company which has been stuck off under section 248(1) of the Act. The Registrar(s) of Companies are also directed to ensure that CRFs are raised in such cases only after thorough scrutiny of the NCLT orders and ensuring that such struck off companies will file overdue documents before filing e-CODS, 2018 and they had filed petitions before the NCLT during the validity of CODS Scheme.[9]

There had been several landmark Judgements by the Supreme Court of India on the above legal aspects. In Commissioner of Income Tax (Central)-I , New Delhi v. Vatika Township Pvt. Ltd. (1) (2015) 1 SCC 1[10] and Commissioner of Income Tax 5 Mumbai v. M/s Essar Teleholdings Ltd. through its Manager which relies on Vatika (supra) (2018) SCC Online SC 59 [11], it has been held by the Constitution Bench of the Supreme Court that a challenge has also been laid to the retrospective application of the provisions of the Companies Act, 2013 especially given the fact that the consequences of the respondent’s action are in the nature of a penalty upon the petitioners as well as the companies concerned[12].

Recently, the Delhi High Court has asked the Ministry of Corporate Affairs (MCA) to explain removal of 1 Lakh Directors from Registrar of Companies (ROC).The court also temporarily revived the identification numbers of the disqualified directors to allow them to function in other active companies.

The directives were challenged in the court by two directors of five private companies struck off from the register of companies who said they were constrained in functioning as directors in three of their other companies that were active. The Court stressed on the fact that issues raised in this writ petition require adjudication and are of grave importance as far as the working of the spirit, intent and objects of the Companies Act, 2013, specifically the manner in which the respondents would operate Sections 164 and 248 of the enactment.

The directors also raised several important law points, including whether the 2013 law could penalize them for acts done before it came into force. The directors were not only disqualified from the companies struck off the list, but also new ones under Sections 164 (2) and 167 of the 2013 act. They contested the legality of Section 164 on the ground that it was borrowed from Section 274 (1) (g) of the Companies Act, 1956, which applied only to public limited companies[13].

Conclusion :

Recently, the ministry of Corporate Affairs (MCA) has undertaken very significant steps by issuing various Circulars on its official website regarding the restoration of DIN of Directors and revival/ restoration of Companies after the Condonation of Delay Scheme, 2018. Therefore, now the need of the hour is to be aware of the provisions and recent developments in law about the same.

Get in touch with the professionals at http://www.muds.co.in or call at 9599653306 or [email protected] with regard to applicability of provisions and compliance requirements of the company.

Disclaimer : While all care has been taken in the preparation of this material, no responsibility is accepted by the Author(s) or our Community, its staff, volunteers or partners, for any errors, omissions or inaccuracies. The material provided in this resource has been prepared to provide general information only. It is not intended to be relied upon or be a substitute for legal or other professional advice. No responsibility can be accepted by the Author(s) or our community or its partners for any known or unknown consequences that may result from reliance on any information provided in this publication.

[1] http://www.livelaw.in (last visited on 5.6.18)

[2] https://www.thehindubusinessline.com (last visited on 5.6.18)

[3] Supra Note 1

[4] Ibid

[5] http://www.mca.gov.in/Ministry (last visited on 5.6.2018)

[6] Supra Note 5

[7] Supra Note 8

[8] Supra Note 7

[9] Supra Note 10

[10] http://judis.nic.in/supremecourt (last visited on 5.6.18)

[11] Supra Note 12

[12] http://delhihighcourt.nic.in (last visited on 7.6.18)

[13] Supra Note 14

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