FAQ’S – Surrender of DIN - Series 3


FAQ’S – Surrender of DIN

These FAQ’s are based on Section 153 or other relevant sections in relation to DIN.

    A.1.   Whether it is allowed to have more than one DIN by an individual?

As per Section 155: No individual, who has already been allotted a Director Identification Number under section 154, shall apply for, obtain or possess another Director Identification Number
However, one can opine that if a person has applied or got second DIN then it shall be considered as non compliance of Section 155.

    A.2.  What shall be penalty on individual if a person having two DIN?

As per Section 159:  If any individual or director of a company, contravenes any of the provisions of section 152, section 155 and section 156, such individual or director of the company shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues.
However, one can opine that it is default on the part of individual and such individual shall be punishable with file as mentioned above.
     
     A.3.   If a person having two DIN, then whether such person can surrender DIN?

As per Rule 11 of The Companies (Appointment and qualification of Directors) Rules, 2014 “The Central Government or Regional Director (Northern Region), Noida or any officer authorised by the Regional Director may, upon being satisfied on verification of particulars or documentary proof attached with the application received alongwith fee as specified in Companies (Registration Offices and Fees) Rules, 2014 from any person, cancel or deactivate the DIN”.

However, one can opine that Rule 11 allowed an individual to surrender of DIN if having more than 2 DIN.

     A.4.   In case of 2 DIN, First DIN shall be surrender or Second DIN shall be Surrender?
In Another Word First Din obtained in 2006 and second DIN obtained in 2010, and then which DIN no. can be surrender.

As per provisions of Companies act read with relevant rules and Updation on the MCA website “ in respect of an individual who is in possession of Duplicate/Multiple DINs, he can retain the Oldest DIN only. DINs obtained later have to be surrendered.

However, one can opine that DIN taken on later on (means second DIN) shall be surrender by individual. Surrender of First DIN is not at all allowed.
                
A.5.  – If a person having 2 DIN. Such person having directorships by second DIN, but no directorship on first DIN. Then whether he can surrender second DIN. If yes, what shall be status of Directorship?

As per CA, 2013 and from above mentioned question it is clear that, second DIN can’t be retain by the individual in any of situations.

Therefore, Individual has to surrender the Second DIN. But what shall be status of directorships?

As per Act, in above mentioned situation following shall be done:
       ·         Individual has to surrender Second DIN Only.
       ·         RD shall migrate directorship of Second DIN on First DIN.
      ·         After migration second DIN shall be surrender

     
      A.6.  If a person having Single DIN only, whether he can surrender his DIN?

Regional Director can cancel / surrender DIN on the basis of situation mentioned in Rule 11.
Rule 11 (a-e) mentioned the situation for surrender of DIN Like (unsound mind, Death, Insolvent etc).

However, Rule 11(f) states that “on an application made in Form DIR-5 by the DIN holder to surrender his or her DIN along with declaration that he has never been appointed as director in any company and the said DIN has never been used for filing of any document with any authority, the Central Government may deactivate such DIN”

Note:

As per Rule 11(f) - when a person made application in DIR-5 for surrender of his DIN to RD has to ensure following conditions:

      ·        That he has never been appointed as director in any company; and
      ·        The said DIN never been used for filing of any document with any authority.

Therefore, one can opine that Single DIN which never used by the applicant can be surrender. But if it is used ever then can’t be surrender.

In Simple Words:
            ·        Single DIN never used can be surrender.
·      Single DIN ever used can’t be surrender.
.
    
   A.7.  Whether Surrender of DIN is enough or it is mandatory to file COMPOUNDING APPLICATION also with surrender?

As discussed in question no. 2 in case of double din penalty shall be as per Section 159.

As per practical situation, after filing of documents/ forms for Surrender of DIN Regional Director is asking for the acknowledgement of Compounding Petition.
Therefore, one can opine that along with surrender of second DIN, compounding Is mandatory.

     A.8.  Which Regional Director having power of Surrender of DIN?

Regional Director Northern Region, Delhi having power to deal with all the matters of DIN. Power to cancel DIN is also vested with RD Northern Region.

(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, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION

Comments

  1. Very useful information..

    But Divesh Ji requested to please clarify the following point:
    As per point No. 7 you have mentioned that Compounding is mandatory along with filing of DIR-5. As per section 159 the person shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues.

    as per section 441(6)(a) any offence which is punishable under this Act, with imprisonment or fine, or with imprisonment or fine or with both, shall be compoundable with the permission of the Special Court, in accordance with the procedure laid down in that Act for compounding of offences.

    ReplyDelete

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