Introduction: The regulatory landscape governing corporate entities demands meticulous compliance with statutory provisions outlined in the Companies Act, 2013. In a recent adjudication order, Turbotech Engineering Limited faced penalties for non-compliance with Section 92 of the Act. This article provides an in-depth examination of the case, elucidating the violations, legal framework, and consequential actions.
Detailed Analysis: The adjudication order, dated December 21, 2023, reveals the contravention committed by Turbotech Engineering Limited concerning the filing of the annual return, a mandate under Section 92 of the Companies Act, 2013. Despite statutory obligations, the company failed to file its annual return within the prescribed timeframe, resulting in a default period of 333 days for the financial year 2018-2019.
The order underscores the gravity of non-compliance, emphasizing the legal repercussions envisaged under Section 92(5) of the Companies Act, 2013. Failure to adhere to prescribed timelines attracts penalties, both on the company and its officers in default. In this instance, a penalty of Rs. 83,300/- was levied on the company, with additional penalties imposed on the officers in default, totaling Rs. 3,33,200/-.
Furthermore, the order delineates the procedural aspects, including the appointment of the adjudicating officer, issuance of show cause notices, and the absence of responses from the company and its officers. It underscores the statutory obligation of prompt response and cooperation during adjudication proceedings.
The order concludes with directives regarding the payment of penalties and the consequences of default. It mandates timely payment through the Ministry of Corporate Affairs portal and highlights the potential repercussions of non-compliance, including fines and prosecution under the Companies Act, 2013.
Conclusion: The adjudication order against Turbotech Engineering Limited serves as a pertinent reminder of the stringent regulatory framework governing corporate entities. Non-compliance with statutory provisions, such as the timely filing of the annual return, can have significant ramifications, including substantial penalties and legal liabilities. It underscores the imperative for companies to prioritize regulatory compliance and adhere to prescribed timelines to avoid adverse legal repercussions. As organizations navigate the complex regulatory landscape, proactive compliance measures emerge as indispensable safeguards against regulatory scrutiny and penalties.
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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 : roc.mumbai@mca.gov.in
No. ROC(M)/TEL- SEC 92/ADJ-ORDER/6230 to 6234
Date: 21 DEC 2023
Order for Penalty under Section 454 for violation of section 92 of the Companies Act,2013.
IN THE MATTER OF TURBOTECH ENGINEERING LIMITED
(L65990MH1981PLCO23839)
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: –
2. The Company TURBOTECH ENGINEERING LIMITED bearing CIN: L65990MH1981PLCO23839 (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 Flat No. 105, lst Floor, Adarsh Building 12, Opp. Ambedkar Hall, RTO Lane, 4-Bunglow, Andheri (West), Maharashtra, India, 400053.
Relevant Provisions of the Companies Act, 2013
3. 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: –
4. 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.
5. 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.
6. 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: –
7. No reply has been received by this office from the Company and its Officers in default till date.
8. The Show Cause Notice dated 28.10.2020, bearing Consignment No. ‘EM961987882IN’ was sent to PRATIK RAMESHCHANDRA SHAH. However, it was returned to this office bearing remark ‘Left’.
9. The Show Cause Notice dated 28.10.2020, bearing Consignment No. ‘EM961987848IN’ was sent to TURBOTECH ENGINEERING LIMITED. However, it was returned to this office bearing remark ‘Left’.
FINDINGS: –
10. 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.
11. 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.
12. As per Section 454 of the Companies Act, 2013 read with Rule 3(1.1) 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.
13. As per Section 92(5) of the Companies Act,2013 “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” Hence, penalty is being levied on Mr. Pratik Rameshchandra Shah (Director), Mr. Alimehdi Sajjad Noorani (Additional Director) and Mr. Arun Bhanubhai Vaghasiya (Director).
14. 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
15. 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.
16. 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 (N) |
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. PRATIK RAMESHCHANDRA SHAH (DIRECTOR) 2. ALIMEHDI SAJJAD NOORANI (ADDITIONAL DIRECTOR) 3. ARUN BHANUBHAI VAGHASIYA (DIRECTOR) |
50,000/-
50,000/- 50,000/- |
333 X 100 = 33,300/-
333 X 100 = 33,300/- 333 X 100 = 33,300/- |
83,300/-
83,300/- 83,300/- |
5,00,000/-
5,00,000/- 5,00,000/- |
|
| TOTAL | 3,33,200/- | 20,00,000/- | |||
TOTAL PENALTY PAYABLE: – Rs. 3,33,200/-
(♦) 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.
17. I am of this opinion that, the penalty is commensurate with the aforesaid failure committed by the Noticee.
18. 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.
19. 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.
20. 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 rupee, but which may extend to one lakh rupees, or with both.
21. 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.
22. 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.
23. 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.
24. 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.
