Introduction: The Ministry of Corporate Affairs, through the Registrar of Companies, Mumbai, issued an adjudication order (No. ROC(M)/TIL/ADJ-ORDER/5351 to 5352) on November 20, 2023, against Tricom India Limited. This order, under Section 454, addresses the company’s non-compliance with Section 92 of the Companies Act, 2013. This article delves into the background, relevant provisions, findings, and the penalties imposed.
Detailed Analysis:
Background: Tricom India Limited, located in Mumbai, faces penalties for its failure to file the Annual Return within the stipulated timeframe. Section 92 of the Companies Act, 2013, mandates the submission of accurate annual returns, and non-compliance results in penalties under Section 454.
Relevant Provisions: Section 92 outlines the requirements for the Annual Return, covering various aspects such as registered office, shareholding pattern, indebtedness, and details of directors. Failure to adhere to these provisions attracts penalties as specified in Section 454 of the Companies Act, 2013.
Observations: MCA21 database records indicate that Tricom India Limited defaulted in filing its Annual Return for the Financial Year 2018-2019. The company violated Section 92 by not filing its Annual Return for the Financial Year 2018-19, with a default period of 333 days from the due date of November 29, 2019.
Penalty Imposition: In the absence of any reply, the Adjudicating Officer, appointed by the Ministry of Corporate Affairs, decided to impose penalties. The company faces a penalty of Rs. 83,300, while its Managing Director, Mr. Chetan Shantilal Kothari, incurs a penalty of Rs. 83,300.
Order and Consequences: The Adjudicating Officer, considering the facts and circumstances, imposed the penalties. The company and its managing director are directed to remit the penalty amount through the Ministry of Corporate Affairs portal within 90 days. Failure to comply within this period may result in additional fines and potential prosecution.
Appeal Process: The order provides a 60-day window for filing an appeal with the Regional Director, Western Region, Ministry of Corporate Affairs, in Form ADJ, accompanied by the grounds of appeal and a certified copy of the penalty order.
Conclusion: Tricom India Limited’s case underscores the critical importance of adhering to the Companies Act, 2013. The penalty order, supported by relevant legal provisions, emphasizes the consequences of delayed Annual Return filing. Companies and their officers must prioritize timely and accurate submissions to avoid financial penalties and legal ramifications.
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GOVERNMENT OF INDIA
MINISTRY OF CORPORATE AFFAIRS
OFFICE OF THE REGISTRAR OF COMPANIES
100, “EVEREST”, MARINE DRIVE,
MUMBAI – 400 002
Website www.mca.gov.in
e-Mail ID: [email protected]
No. ROC(M)/TIL/ADJ-ORDER/5351 To 5352
Date: 20 NOV 2023
Order for Penalty under Section 454 for violation of Section 92 of the Companies Act, 2013
IN THE MATTER OF TRICOM INDIA LIMITED
(L65910MH1992PLC068953)
Appointment of Adjudicating Officer: –
1. Ministry of Corporate Affairs vide its Gazette Notification No. A-42011/112/2014-Ad. II dated 24.03.2015 appointed the undersigned as Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 [herein after known as Act] read with Companies (Adjudication of Penalties) Rules, 2014 for adjudging penalties under the provisions of this Act.
Company: –
1. The Company TRICOM INDIA LIMITED bearing CIN: L65910MH1992PLC068953 (herein after known as ‘Company’) is a registered company with this office under the provisions of the Companies Act, 1956 having its registered office as per MCA master data at address Tricom house, Gandhi Estate, Andheri Kurla Road, Safed Pool, Andheri (East), Mumbai, Mumbai City, Maharashtra, India, 400072.
Relevant Provisions of the Companies Act, 2013
2. Section 92- Annual return. — (1) Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding —
(a) its registered office, principal business activities, particulars of its holding, subsidiary and associate companies;
(b) its shares, debentures and other securities and shareholding pattern;
(c) its indebtedness;
(d) its members and debenture-holders along with changes therein since the close of the previous financial year;
(e) its promoters, directors, key managerial personnel along with changes there in since the close of the previous financial year;
(f) meetings of members or a class thereof, Board and its various committees along with attendance details;
(g) remuneration of directors and key managerial personnel;
(h) penalty or punishment imposed on the company, its directors or officers and details of compounding of offences and appeals made against such penalty or punishment;
(i) matters relating to certification of compliances, disclosures as may be prescribed;
(j) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them; and
(k) such other matters as may be prescribed, and signed by a director and the company secretary, or where there is no company secretary, by a company secretary in practice:
Provided that in relation to One Person Company and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.
(2) The annual return, filed by a listed company or, by a company having such paid-up capital or turnover as may be prescribed shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act.
(3) An extract of the annual return in such form as may be prescribed shall form part of the Board’s report.
(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, within the time as specified, under section 403 .
(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 fifty 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 five lakh rupees.
(6) If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made thereunder, he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.
Facts about the case: –
3. In terms of provisions of Section 92 of the Companies Act, 2013, the Company was required to file the Annual Return within sixty days from the date of Annual General Meeting held in pursuance of Section 96 of the Companies Act, 2013.
4. It was observed as per the MCA 21 database, that the Company has defaulted in filing its Annual Return for the Financial Year 2018-19. The company is in noncompliance of provisions of Section 92 of the Companies Act, 2013 for non-filing of Annual Return for the financial year ended 31.03.2019 with a default period of 333 days. The due date of filing was 29.11.2019, however, the Company failed to file its Annual Return for the Financial Year 2018-19.
5. Subsequently, this office issued a Show Cause Notice to the Company and its Officers in default, dated 28.10.2020, under. Section 454 of the Companies Act, 2013 for adjudication of offence under Section 92(5) of the Companies Act, 2013.
Reply of the Company: –
6. No reply has been received by this office from the Company and its Officers in default till date.
7. The Show Cause Notice dated 28.10.2020, bearing Consignment No. ‘EM961986913IN’ was sent to the Company. However, it was returnedto this office bearing remark ‘Refused’.
8. The Show Cause Notice dated 28.10.2020, bearing Consignment No. ‘EM961986887IN’, was sent to RATNAKAR ANANT KULTHE. However, it was returned to this office bearing remark ‘Left’.
FINDINGS: –
9. As observed from the MCA21 database, the Company has failed to file the Annual Return within the time prescribed by the provisions of Section 92 of the Companies Act, 2013.
10. It is also observed that no reply has been received from the Company and its Officers in Default to the Show cause notice till date.
11. As per Section 454 of the Companies Act, 2013 read with Rule 3(11) of Companies (Adjudication of Penalties) Rules, 2014, if the Company and Officers in default fail to reply or neglect or refuse to appear as required, the adjudicating officer may pass an order imposing the penalty, in the absence of such person after recording() the reasons for doing so.
12. As per Section 2(60) Read with Section 2(51) of the Companies Act,2013 Managing Director is considered as Officer in Default. Hence, penalty is being levied on Mr. Chetan Shantilal Kothari (Managing Director) and not on the other noticee viz Mr. Ratnakar Arrant Kulthe (Additional Director) and Mr. Masood jilani Sheikh ( Additional Director).
13. As no reply has been received till date and the violation of the said provision has been established from the MCA21 database, the following Order is being passed.
ORDER
14. In exercise of the powers conferred on me vide Notification dated 24.03.2015 and having considered the facts and circumstances of the case and after taking into account the factors mentioned in the relevant Rules, I am of the opinion that penalty shall be imposed for the default related to non-compliance of section 92 of the Act. The delay, if any, in passing of the order is due to the legal complexities involved in the matter.
15. Having considered the facts and circumstances of the case and after taking into the factors above, I hereby impose a penalty of Rs. 83,300/- (Rupees Eighty-Three
Thousand and Three Hundred only) on Company and its Officers in default, each, as per table given below for violation of provisions of Section 92 of the Companies Act, 2013.
| No. of days of default (♦) |
Penalty imposed on Company/ KMP | First default Penalty in (Rs.) |
Default continues Penalty in (Rs.) |
Total Penalty levied in (Rs.) | Maximum Penalty in (Rs.) |
| 333 | A. Company | 50,000/- | 333 X 100 =33,300/- | 83,300/- | 5,00,000/- |
| B. Directors /KMP
1. CHETAN SHANTILAL KOTHARI (MANAGING DIRECTOR) |
50,000/- | 333 X 100 = 33,300/- | 83,300/- | 5,00,000/- | |
| TOTAL | 1,66,600/- | 10,00,000/- | |||
TOTAL PENALTY PAYABLE: – Rs. 1,66,600/-
(♦) The period of violation of provisions under Section 92 of the Companies Act, 2013 is from 30.11.2019 till 27.10.2020. As per signatory details available on MCA21 portal, the above-mentioned individuals were Officers in default during the period of violation.
(♦) Due date of filing was 29.11.2019 and Annual Return has not been filed till the date of dispatch of the Show Cause Notice being 28.10.2020. Default period is thus calculated to be at a total of 333 days till 27.10.2020.
16. I am of this opinion that, the penalty is commensurate with the aforesaid failure committed by the Noticee.
17. The Noticee shall pay the said amount of penalty through “Ministry of Corporate Affairs” portal and proof of payment be produced for verification within 90 days of receipt of this order.
18. Please note that as per Section 454(8)(i) of the Companies Act, 2013, where Company does not pay the penalty imposed by the Adjudicating Officer or the Regional Director within a period of ninety days from the date of 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.
19. Where an Officer of a Company who is in default does not pay the penalty 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.
20. Therefore, in case of default in payment of penalty, prosecution will be filed under Section 454(8)(i) and (ii) of the Companies Act, 2013 at your own costs without any further notice.
21. Further the company and its officers are hereby direct that the penalty amount shall be remitted from their own sources through MCA 21 ports within 60 days from the date of receipt of order. The company need to file INC-28 as per the provisions of the Act, attaching copy of adjudication order along with payment challans.
22. Appeal if any, against this order may be filed in writing with the Regional Director, Western Regional, Ministry of Corporate Affairs, within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by the certified copy of this order. (Section 454 of the Companies Act,2013 read with the Companies (Adjudicating of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019.
23. In terms of the provisions of sub-rule (9) of Rule 3 of Companies (Adjudication of Penalties) Rules 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019, copy of this order is being sent to the Company and Noticee/s and also to Office of the Regional Director, Western Region, Ministry of Corporate Affairs.
(B MISHRA)
Adjudication officer and Registrar of Companies,
Maharashtra, Mumbai.
