Effect of non filing of E-Form Active

Ministry of Corporate Affairs (MCA) vide its notification dated February 21, 2019 issued Companies Incorporation (Amendment) Rules, 2019. As per the amended Rules, Every Company incorporated on or before December 31, 2017 are required to file eForm ACTIVe (Active Company Tagging Identities and Verification) or INC 22A. The original deadline for the form was April 25, 2019 which was extended up to June 15, 2019. The Companies which are able to successfully file eform INC 22A are now marked as ‘Active Compliant’ Company while rest of the Companies which have failed to file the Form is known as Active Non-Compliant.

Consequences of Non Filing:

So what are the consequences of non-filing of eForm ACTIVe? We have tried to summarise the same below:

1) As per MCA notice flashed on its website, in case eForm ACTIVe is not filed by the Company on or before June 15, 2019, the compliance status for such company shall be marked as ‘ACTIVE Non-compliant’ and Directors of such ‘ACTIVE non-compliant’ companies shall be marked as ‘Director of ACTIVE non-compliant company’.

2) Such Companies can file eForm ACTIVe after paying the additional fees of Rs. 10,000.

3) Once Company is marked as “Active- Non-compliant”, No request for recording the following event-based information or changes shall be accepted by the Registrar from such companies marked as “ACTIVE-non-compliant”, unless ” e-Form ACTIVE” is filed –

• a) SH-07 (Change in Authorized Capital);
• b) PAS-03 (Change in Paid-up Capital);
• c) DIR-12 (Changes in Director except cessation);
• d) INC-22 (Change in Registered Office);
• e) INC-28 (Amalgamation, de-merger)

Why Company Could not file the Form?

While the form was very easy to file and had a very minimum requirement as far as compiling of data is concerned. Many Companies failed to file the form due to various reason such as non-appointment of CS (applicable to Companies with Paid up capital of Rs. 5 crore or more), Non-filing of Auditors Appointment Form or any irregularities in previous years filing, Non Filing of Annual Accounts etc.

The form was auto-prefilled and had fetched data directly from the previous filings done by the Company. However, if there is any mismatch in the database or lack of filing, ACTIVe form filing was not permitted.

What next for such Non-Compliant Company?

MCA recently issued another message stating that Tagging of non-compliant Companies/Directors for not filing eForm Active(INC-22A) is in progress. To facilitate completion of the activity, e-filing of the form (ACTIVE) has been suspended temporarily. The same would be restored soon for filing purposes with fee as provided under the relevant rules once the Tagging activity is complete.

Which means that the Company which has failed to file the form will have to wait for a few more days before which it can file the eForm ACTIVe with additional fees of Rs. 10,000. Also, it means that in the meantime, above-mentioned activities (Change in Authorised Share Capital, Paid up capital etc.) will be on hold for such companies.

Does ACTIVe Non Compliant means disqualified Director?

No, disqualification of Director under Section 164 (2) as of date does not cover, Non-ACTIVe Compliant Director. Though the effect and purpose of Non-ACTIVe Compliant director are still not clear but as of today, it is not amounting to Disqualification of Director under Section 164(2) of the Act.