ANNUAL FILING UNDER COMPANIES ACT 2013
After Completion of
one year of Companies Act, 2013 now it is the high time for the members to
start work on Annual Return (MGT-7) and Director Report. The last date for
E-filling of company’s Annual Returns and balance Sheet under Companies Act is
an opportunity.
The companies under
the Companies Act 2013 are required to E-file annually the following documents
with the Registrar of Companies (ROC) as follow:
Type of Document
|
TYPE OF E-FORM
|
Balance –Sheet
|
Form
AOC-4.
|
Consolidated Financial
Statement
|
Companies which have Subsidiary Company, Associate Company and Joint
Ventures.
|
Profit &
Loss Account
|
Form AOC-4.
|
Annual Return
|
Form MGT-7 to be filled by Companies having share Capital.
|
Annual Return
|
Form MGT-7 to be filled by companies not having share capital.
|
Director Report
|
Director Report along with Following Annexure:
-
AOC-2
-
MGT-9
-
Secretarial Audit Report
|
FIVE STEPS FOR E-FILLING PROCESS
A) REGISTER
YOUR SELF ( STEP – I) :
Only registered users are allowed to do
E-Fling. Registration is a Simple, One time process.
B) DOWNLOAD E-FORM ( STEP – II) :
Go to the Annual
filling corner following the link provided at the home page of the MCA portal
& download the applicable E-forms following the Link “Downloads E-form”
C) COMPLETE E-FORM ( STEP – III ):
Download e-form
MGT-7 & AOC- 4 and fill the complete e-forms and attach respective
attachments. Affix DSC of Director and Professional and complete the e-form.
D) SUBMIT E-FORM ( STEP – IV ) :
A connection to
the internet will be required to carry out- e-filling submission will need to
be made at the MCA21 Portal using Specialized Functionality that is provided.
E) MAKE PAYMENT
(STEP – V ):
Fees calculation
will be done automatically by the system as applicable under the law & the
Fee for the services will be displayed to the user. The filling fees will be
paid through credit card & internet Banking. The system will generate a
receipt that you can retain as a part of your records.
COMPLETION OF E-FILLING
v The E-filling process will be completed once
the necessary payment is remitted.
v You
will also be provided a facility at MCA21 portal to check if the e-filling has
been completed successfully.
v The services request Number is printed on the
Challan or the computer generated receipt & is used to track your
services request.
PROVISIONS OF COMPANY LAW RELATING TO ANNUAL RETURN AS PER COMPANY ACT
2013:
ANNUAL RETURN:
The 2013 Act states that
requirement of certification by a company secretary in practice of annual
return will be extended to:
CERTIFICATON OF ANNUAL RETURN
(MGT-8):
a)
All Listed Companies
b)
Every Company having:
Ø Paid-Up
share capital of 10 Crore (Ten Crore) rupees or more or
Ø Turnover
of 50 Crore (fifty crore) rupees or more
SIGNING OF ANNUAL RETURN:
a)
All Listed Companies
b) All
Public Companies
c) Private
Limited company having:
Ø Paid
up share Capital Exceeding 50 lac
Ø Turnover
exceeding 2 Crore
Companies Exempt from signing of
annual return from company secretary:
a)
One Person Company
b)
Small company – As defined above
The information that needs to
be included in the annual return has been increased. The additional information
required, includes particulars of holding, subsidiary and associate companies,
remuneration of directors and key managerial personnel, penalty or punishment
imposed on the company, its directors or officers.
According to section 92 (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:—
Ø
Its
registered office, principal business activities, particulars of its holding,
subsidiary and associate companies;
Ø
Its shares,
debentures and other securities and shareholding pattern;
Ø
Its
indebtedness;
Ø
Its members
and debenture-holders along with changes therein since the close of the
previous financial year;
Ø
Its
promoters, directors, key managerial personnel along with changes therein since
the close of the previous financial Year;
Ø
Meetings of
members or a class thereof, Board and its various committees along with
attendance details;
Ø
Remuneration
of directors and key managerial personnel;
Ø
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;
Ø
Matters
relating to certification of compliances, disclosures as may be prescribed;
Ø
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
Ø
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:
According
to section 92 (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.
According
to section 92 (5):
If a company fails to file its annual return under
sub-section (4), before the expiry of the period specified under section
403 with additional fee, the company shall be punishable with fine which shall
not be less than fifty thousand rupees but which may extend to five lakhs
rupees and every officer of the company who is in default shall be punishable
with imprisonment for a term which may extend to six months or with fine which
shall not be less than fifty thousand rupees but which may extend to five lakh
rupees, or with both.
According
to section 92 (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 there under, he shall be punishable with fine which shall not be
less than fifty thousand rupees but which may extend to five lakh rupees.
According
to section 92 (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.
According
to section 92 (5):
If a company fails to file its annual return under
sub-section (4), before the expiry of the period specified under section
403 with additional fee, the company shall be punishable with fine which shall
not be less than fifty thousand rupees but which may extend to five lakhs
rupees and every officer of the company who is in default shall be punishable
with imprisonment for a term which may extend to six months or with fine which
shall not be less than fifty thousand rupees but which may extend to five lakh
rupees, or with both.
According
to section 92 (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 there under, he shall be punishable with fine which shall not be
less than fifty thousand rupees but which may extend to five lakh rupees.
According
to section 92 (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.
According
to section 92 (5):
If a company fails to file its annual return under
sub-section (4), before the expiry of the period specified under section
403 with additional fee, the company shall be punishable with fine which shall
not be less than fifty thousand rupees but which may extend to five lakhs
rupees and every officer of the company who is in default shall be punishable
with imprisonment for a term which may extend to six months or with fine which
shall not be less than fifty thousand rupees but which may extend to five lakh
rupees, or with both.
According
to section 92 (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 there under, he shall be punishable with fine which shall not be
less than fifty thousand rupees but which may extend to five lakh rupees.
According
to section 88 (5):
If a company
does not maintain a register of members or debenture-holders or other security
holders or fails to maintain them in accordance with the provisions of
sub-section (1) or sub-section (2), the company and every officer
of the company who is in default shall be punishable with fine which shall not
be less than fifty thousand rupees but which may extend to three lakh rupees
and where the failure is a continuing one, with a further fine which may extend
to one thousand rupees for every day, after the first during which the failure
continues.
BOOKS OF ACCOUNT TO BE
KEPT:
Place of keeping of Books of Accounts:
Every Company shall
prepare and
Keep At Its Registered Office
Ø Books
of Account and
Ø
other relevant Books and Papers and
Financial
Statement for every financial year which
give a true and fair view of the state of
the affairs of the Company including that of its branch office or
offices, if any Company can keep all or any of the books of account aforesaid at
Place
Other Then
Registered Office (but in INDIA)
of the Company by following procedure:
·
Board of Director of the Company will
pass a Board Resolution.
·
Within 7 days of passing of resolution
company will file form AOC-5 with ROC.
Meaning of Books of Accounts:
Every company must keep proper books of account
with respect to:
·
all sums of money received and expended by the company and
the matters in respect of which the receipt and expenditure take place;
·
all sales and purchases of goods by the company;
·
the assets and liabilities of the company; and
·
in the case of a company engaged in production, processing,
manufacturing or mining activities, such particulars relating to utilization of
material or labor or other items of cost as may be prescribed by the Central
Government, provided the Central Government so directs to any such class of
companies or any particular company.
Meaning of Book or Paper:
Accounts,
Deeds, vouchers, writings, documents, MINUTES and REGISTERES maintained on
paper or in electronic form.
TIME PERIOD OF PRESERVATION OF BOOKS OF ACCOUNT TO BE KEPT:
Books
of accounts of every company relating to a period of Not
Less Than 8 (Eighty) Years immediately proceeding the
financial year, along with relevant books and papers.
It
is highly advisable to pass a Board Resolution to Destroy records every year,
after prescribed period is over, giving list of records to be destroyed.
FINANCIAL YEAR:
In case of newly incorporate company:
v If Company
incorporated ON OR AFTER 1st January of a year, the period
ending on the 31st day of March of FOLLOWING Year.
v If Company
incorporated ON OR BEFORE 1st January of a year, the period
ending on the 31st day of March of that Year.
In case of old incorporate company:
§ Financial
year means the period ending on the 31st Day of March every year.
Transitory provisions in case of existing
Companies:
A
company existing on the commencement of the 2013Act, shall, with in a period of
2 (TWO) years from such commencement, align its financial year as 1st April, to
31st March.
Different financial year if holding or
Subsidiary is outside India:
If
because of holding or subsidiary is outside India Company required to follow a
different financial year for consolidation of its accounts outside India. The
company can make an application with CLB, if CLB satisfied, allow any period as
its financial year, whether or not that period is a year.
[This
can happen in case of foreign Companies having subsidiaries in India. Even in
that case, the Indian company has to prepare accounts for year ending on 31st
March, for income tax purpose]
FINANCIAL STATEMENT:
§ A
Balance Sheet
§ A
profit and Loss account (or Income and expenditure account)
§ Cash
Flow Statement
§ A
statement of changes in equity (If applicable)
§ Any
explanatory note attached to,
[The
State changes in equity is applicable for Companies to which the AS applies]
Cash Flow Statement not required to be
prepared by the companies:
§ One
Person Company; of
§ Small
Company; or
§ Dormant Company.
Financial Statement of Companies governed
by Special Acts:
Insurance
Company Banking
Company
Electricity Company any
other company governs by Special law.
Need not the disclose matters which are not
required to be disclosed under their specific Act.
In other words, financial statements of the
Companies governed by Special Acts will be prepared as per provisions of those
special Acts and not as per provision of Companies Act.
Preparation
of Financial Statements:
§ Every
Company must prepare ‘Financial Statement’ for every financial year.
§ The
Financial statement should be prepared at the Annual General Meeting of
members.
AUTHENTICATION OF FINANCIAL STATEMENT:
The
Financial Statement (Including consolidated financial statement where
applicable) shall be approved by the Board of Directors. After Board approval,
the statement should be signed on behalf of the Board as follows-
a)
By any two Directors (on shall be MD,
if any) and
b)
CEO, if any
c)
CFO, if appointed.
d)
Company Secretary of the Company, if
appointed
§ In
case of Small Company where no MD, CEO CFO than Financial statement should be
signed by the Two Directors of the Company.
§ After
the signatures, it should be submitted to the auditor for his report thereon.
§ When
financial statement signed by two directors, such directors should
be present at the meeting and should sign the accounts at the meeting.
(i.e. should be signed at the meeting itself and not later).
Approval of Financial Statement and Board
Report by Board in Meeting:
Theoretically,
financial statements are presented to auditors only after they approved by
Boards and signed by authorized persons. The auditors are only expected to
submit his report on the financial statements presented to him for audit.
Practically, The
checking of financial statements is already completed before these are approved
by the Board. Auditor informally approves the draft financial statements with
notes etc., before the accounts are approved by the Board. Usually, he also
gives unsigned draft of the Auditor’s Report.
However,
auditor signs the financial statements only after these are approved by Board
and signed by person authorized by Board of the Company.
APPROVAL OF FINANCIAL STATEMENT:
§ Approval
of Financial Statement shall be done at the meeting of the Board.
§ The
approval can’t be done by circulation or by committee. (same provision in
Secretarial Standard (SS-1) of ICSI
§ MGT-14:
The Board resolution approving financial statement to be filed with ROC in form
MGT-14. (But Private Company not required to file MGT-14 after exemption on
Private Limited Companies)
CIRCULATION OF FINANCIAL STATEMENT:
To
whom:
§ Every
Member of the Company
§ To
every trustee for the debenture-holder of any debentures issued by the Company
and
§ To
all persons other than such member of trustee, being the person so entitled.
Time
period of circulation:
The
financial statement (including consolidated financial statement, if any)
auditor’s report and every other documents required by law to be annexed or
attached to financial statements, which are to be laid before a company in its
general meeting shall be sent “Not Less Than 21 (Twenty One) days before the
date of the Meeting.
Publication
on Website:
A
listed Company (Whether Debt Listed or Equity Listed) shall place its financial
statements (including consolidated financial statements, if any), and all other
documents required to be attached thereto, on Company’s website, which is
maintained by or on behalf of the Company.
Inspection
of Documents:
A
company shall allow every member or trustee of the holder of any debentures
issued by the company to inspect the documents stated under section 136(1) at
its registered office during business hours- Section 136(1)
Mode
of sending Financial Statement:
Financial
statement can be sent to members and others through post or courier or had
delivery as per Section 20(2).
However,
a listed company or a public company whose net worth is more than one crore and
turnover of more than ten Crores, financial statement can be sent by-
(a) E-mail
if shares in Demat form and email ID is registered with depository.
(b) E-mail
if shares are in physical form and member has positively consented in writing
for receiving by email
(c) By
post, courier or had delivery as per section
CONSOLIDATION OF FINANCIAL STATEMENT:
§ Every
company having a subsidiary or subsidiaries has to submit consolidated
financial statement in addition to its own ‘financial statement’.
§ The
financial statement should be in same form.
§ It
shall be laid before annual general meeting of the company, along with
company’s own financial statement.
§ In
addition to consolidated financial statement, a separate statement containing
salient features of financial statement of its subsidiaries shall be attached.
(Form AOC-1)
FILING COPY OF FINANCIAL STATEMENT:
§ Copy
of Financial Statements (including consolidated financial statements in case of
holding company), shall be filed with Registrar of Companies with in 30
(Thirty) days from the date when the accounts were duly adopted at the annual
General Meeting of the Company.
§ All
documents which are required to be annexed or attached to the financial
statement must be filed.
§ The
documents are required to be filed with filing fees.
Financial
statement to be filed even if not adopted in AGM:
Even
if the financial statements are not adopted at AGM or at the adjourned general
meeting, the un-adopted financial statement duly signed is required to be
submitted within 30 days from date of AGM. The registrar of Companies shall
take them on record a provisional, till the financial statements duly adopted
are filed after the accounts are adopted in the adjourned General Meeting.
Such
adopted financial statement shall be filed within 30 days from the date of
adjourned meeting where the accounts were adopted.
Financial
statement to be filed even if not adopted in AGM:
Where
the annual General Meeting of a company for any year has not been held, the
financial statement along with the documents required to be attached under
section 137(1), duly signed along with the statement of facts and reasons for
not holding the Annual General Meeting shall be filed with the Registrar within
30 (thirty) days of the last date before which the annual General Meeting
should have been held.
Filing
financial statement in case of OPC:
In
case of One Person Company, financial statement along with annexes and
attachments should be filed with ROC within 180 days from close of financial
year.
Filing
financial statement in case of Company having subsidiaries outside India:
In
case of companies having subsidiary or subsidiaries outside India and which has
no place of business in India, the accounts of subsidiary/ subsidiaries should
be filed along with financial statement of the holding Company.
INSPECTION OF FINANCIAL STATEMENT:
The financial
statement and related documents filed with ROC are ‘public documents’ and any
person can inspect those documents on payment of prescribed inspection fees.
Duty to lay
Annual Accounts at Annual General Meeting:
1.
Notice
of AGM
2.
Directors
Report and Compliance Certificate from Practicing Company Secretary, (If
Required).
3.
Auditors
Report
4.
Balance
Sheet
5.
Profit
& loss Account
In case of
Holding company:
1. Balance
Sheet
2. Directors
Report
3. Auditors
Report
Statement
of holding company’s interest in subsidiary, if any
AUDIT
REPORT REQUIREMENT
Section
143 (3) read with rule 11 of the Companies (Audit and Auditors) Rules, 2014 of
the Companies Act, 2013 talks about the provisions of Audit Report:
The
Requirement of audit report comes from Section 142(2) of Companies Act, 2013.
The
auditor shall make a report to the members of the company on the accounts
examined by him and on every financial statement which are required by or under
this act to be laid before the company in general meeting.
Importance
of Audit Report:
The audit report of the
company is referred to and relied upon by many who are dealing with the
Company. Information available in the audited accounts is very valuable for
all.
A.
Contravention of
Provision of Section 139-146: (Attendance in General Meeting): If any
provisions of this Section contravene then:
Penalty
on Company:
The
company shall be punishable with fine which shall not be less than Rs. 25,000
(Rupees twenty-five thousand) but which may extend to Rs. 5 Lac (Rupees five
lac)
AND (+)
Penalty
on Officer of Company:
Every
officer of the company who is in default shall be punishable with
imprisonment for a term which may extend to one year OR with fine
which shall not be less than Rs. 10,000/- (Rupees ten thousand) but which may
extend to Rs. 1 Lac (Rupees one lakh), OR with BOTH.
B.
Contravention of
Provision of Section 145: (Signing of Auditor Report): If any provisions
of this Section contravene then:
Penalty on Auditor
(without intention or will):
The auditor shall be punishable with fine
which shall not be less than Rs. 25,000/- (Rupees twenty-five thousand) but
which may extend to Rs. 5 Lac (Rupees five lakh)
Penalty on Auditor
(Contravene the provisions knowingly or willfully):
If
an auditor has contravened such provisions knowingly or willfully with the
intention to deceive the company or its shareholders or creditors or tax
authorities, he shall be punishable with imprisonment for a term which
may extend to one year AND with fine
which shall not be less than Rs. Lac
(Rupees one lac) but which may extend to Rs. 25 Lac (Rupees twenty-five lac).
CONCLUSION:
Therefore all
Companies registered under the provisions of the companies Act 1956/2013 are
required to file with the registrar of companies the audited copy of financial
statement with in a period of 30 days of holding the annual general meeting in
terms of section 137(1), and the Annual return within a period of 60 days of
the Annual General meeting in terms of section 92(4) of the Companies Act,
2013.
(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES
Company Secretary in Practice from Delhi and can be contacted at
csdiveshgoyal@gmail.com)
Disclaimer: The entire contents of this document have been
prepared on the basis of relevant provisions and as per the information
existing at the time of the preparation. The observations of the author are personal view and the authors do not take
responsibility of the same and this cannot be quoted before any authority
without the written
That means now a private company need not file ADT-1 and MGT-14 regarding appointment of auditors/take on record the financial statement of the company. only filing of AOC-4, MGT-7 required.
ReplyDeleteMs. Anu,
ReplyDeleteYes for Private Limited Company no need to file MGT-14 for approval of Financial statement and Directors' Report.
Yes ADT-1 not required for ratification of auditor for all the Companies.
Sir,
ReplyDeleteWhat is the procedure for annual filing of Section 8 companies?Please provide me the format of Director's Report for Section 8 Companies.
Thank You,
Regards
Niharika Gupta
sir,
ReplyDeletewhat forms have to select for annual filing of section 8 companies
Thank you
Regards
Hari krishna
sir,
ReplyDeletewhat forms have to select for annual filing of section 8 companies
Thank you
Regards
Hari krishna
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