Implication of Non-filing of Annual Forms – By Companies Amendment Bill, 2017
Implication of Non-filing of Annual Forms – By Companies Amendment Bill, 2017
One of the Major proposed Amendment”
Removal of reference of Section 403 from the Section
92 (Annual Return) and Section 137 (Financial Statement). Due to removal of 403
from the section 137 & 92 there are lot of questions arise in the mind of
the professionals and the Corporates due to non clarity as follow.
I.
No Upper Cap on Additional Fees:
In
the proposed Companies (Amendment) Bill, 2017, It is proposed that if any
company fails to comply with the provisions of Section 92 & 137 the
Companies Act, 2013 i.e. filing of e-form MGT-7 and AOC-4 with in period of 60
days and 30 days of date of Annual General Meeting “Then it proposed in the bill that the Company can file such form
subject to additional fees of Rs. 100/- per day”. Here the questions are;
·
If a
Company has not filed Annual forms for the f.y. 2014-15 , 2015-16 or any
previous financial year then whether fees shall be applicable as Rs. 100 per
day or 2 times, 4 times as per Companies Act, 2013?
·
There
are upper cap of maximum 12 times additional fees under CA, 2013 whether there
are any upper cap on additional fees under Amendment Bill, 2017.
II.
Double / Higher Additional Fees
In
the proposed Companies (Amendment) Bill, 2017, it is proposed that if the
Company commits default of 2 or more occasions in filing of documents, facts or
information required u/s 92 and 137 of the Act, the Company has to pay higher
additional fee, as may be prescribed and which shall not be lesser than “Twice the Additional Fees” as
mentioned above. Here the questions are;
·
If
company fails to file for the F.Y. 2014-15 and 2015-16 then whether it will be
considered as committing of default 2 times/ occasions.
·
Whether
this 2 time of additional fees only in case of non filing of annual forms or
non filing of any other forms also?
III.
Trigger of Compounding:
As
per provisions of Companies Act, 2013 if company fails to file Annual form
within the additional time prescribed under Section 403 (i.e. 270 days) then
company have to file application with NCLT for compounding of offence u/s 137
and 92.
However,
it can be opined that as per the provisiosn of Companies Act, 2013 Compounding
shall be triggered after completion of additional 270 days.
In
the proposed Companies (Amendment) Bill, 2017 if is proposed to remove the
reference of Section 403 from the section 137 and 92. Here
the questions are;
·
Whether
compounding shall be triggered from 31st day and 61st day
in case on non compliance of Section 137 & 92, non filing of AOC-4 &
MGT-7.
·
Whether
default shall be trigger from 31st day and 61st day for
availing the exemptions given to private limited Company.
Therefore, one can opine that due to non
clarity, it is urgent and important for all the Corporates and professionals to
file all the pending annual e forms if any, with the ROC at the earliest before
passing of Amendment Bill, 2017 from the Rajya Sabha and becomes the final Act.
(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. Although care has been
taken to ensure the accuracy, completeness and reliability of the information
provided, I assume no responsibility therefore. Users of this information are
expected to refer to the relevant existing provisions of applicable Laws. The
user of the information agrees that the information is not a professional
advice and is subject to change without notice. I assume no responsibility for
the consequences of use of such information. IN NO EVENT SHALL I SHALL BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM,
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