It’s a common question amongst many professionals, mentioned below with hypothetical situation:
If a company fails to file Active form, status of form changed as Active Non Complaint.
-Out of 3 Directors 2 has not filed their DIR-3 KYC.
-Due to non filing of DIR-3 KYC their DIN are deactivated.
-Due to deactivation of DIN, Company is not able to file Annual Forms (AOC-4/ MGT-7)
-If Company will not file Annual Forms it can’t file Active form to change status of Company.
This situation us facing by many corporates and professionals these days. These companies are “Active non compliant”. In this editorial author trying to discuss the situation step wise step.
Process of change in Status:
If a Company fails to file Active form then Status shall be changed as “Active Non Compliant” and company shall not be allowed to file following forms:
- Sh-7 (Increase in Authorized Capital)
- PAS-3 (Allotment of Shares)
- DIR-12 (Appointment and Resignation of Director (Except
- Cessation))
- INC-22 (Change in Registered Office)
- INC-28 (For purpose of Amalgamation or de-merger)
In simple word it is very difficult situation for a company if its status changed as “Active Non Compliant”. Now let’s discuss the same on the point view of hypothecation situation mentioned above.
STEP-I
Out of 3 Directors 2 has not filed their DIR-3 KYC and non co-operating in filing of KYC. Due to non filing of DIR-3 KYC their DIN are deactivated. Now how to appoint new Director to file pending annual forms with ROC, to update Annual Compliances?
As per Companies (Incorporation) Eighth Amendment Rules, 2019 on 16th October, 2019, MCA has amended rule 25A as given below:
Legal Provision Company can’t file DIR-12 for change in director, except situations mentioned below:
- Cessation of Any Director or
- appointment of directors in such company where the total number of directors are less than the minimum number provided in clause (a) of sub-‘ section (1) of section 149 on account of disqualification of all or any of the director under section 164.
- Appointment of any director in such company where DINs of all or any it’s director(s) have been deactivated.
- Appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal under the provisions of this Act or under the Insolvency and Bankruptcy Code, 2016).
One can opine:
As per amended rules MCA allowing filing e-form DIR-12 by the Company, where DIN of directors deactivated due to non filing of DIR-3 KYC. Therefore, one can opine that company can file DIR-12 for appointment of new Director where other directors not updated their KYC.
Now question arise how to appoint new Director:
As there are 3 directors in the company in given example. They can appoint new director in meeting of board of Directors as Additional Director or call an EGM for appointment of Director.
STEP-II
Due to deactivation of DIN, Company is not able to file Annual Forms (AOC-4/ MGT-7)
After completion of Step-I. Now there are four directors on the Board of Company. Out of 4 directors DIN of 2 directors are de-activated. As DIN of 2 directors are de-activated company can’t file annual Forms.
Therefore, now question arise regarding removal of these two directors:
Company has to follow the process of removal of Director u/s 169 of Companies Act, 2013 and after completion of process have to file DIR-12 for cessation of such Directors. Company in ‘Active non compliant status’ still allowed to file DIR-12 for cessation of Directors.
STEP III
After cessation of directors, now there are two directors on the board of Directors and both having active DIN Status.
Company shall proceed further for filing of AOC-4 and MGT-7 for all the pending financial years. Once companies complete filing of Annual form, such company shall be eligible for filing of ACTIVE form.
STEP IV
Filing of ACTIVE form.
After completion of annual filing company shall file ACTIVE form with additional fees. Just after filing of Active form status of company shall be changed to ACTIVE.
(Author can be reached at csdiveshgoyal@gmail.com )
Author Bio
a) A person is Director in 8 Companies
b) For 5 out of these 8 companies, Balance Sheet has been filed on 31/03/2020
c) What is the Form No (Declaration), which is required to be up loaded with the Balance Sheet, in which the person should have declared the names of other companies in which he was a Director on 31/03/2020
I am an individual and have no knowledge whatsoever in this field
Thank you in advance
What if all the 3 Director’s DIN is deactivated ?
Sir
We are having paid up capital more than 10 crores. For non appointment of CS the status is Active non compliant. Now we have reduced to less than 10 crores. But we could not file PAS 3 for reduction of share capital, since we are in the status of active non compliant. For filing INC 22A from non compliant to non compliant it needs appointment of CS. How the issues will be solved? Please inform us the solution.