Withdrawal of Exemption - Private Limited Company




withdrawal of exemption of Non-filing of Annual Form
PRIVATE LIMITED COMPANIES


Short Summary:
In this Flash editorial, the author begins by referring the provisions of section 92 & 137 of Companies Act, 2013 relating to filing of MGT-7 & AOC-4..

(i) What shall be the effect on avaibility of “Exemptions to Private Limited Company” in case of default of filing of Annual Forms? Etc.

(ii) What shall be the effect on avaibility of “Exemptions to Private Limited Company” in case of Company files annual Form after due Date

(iii) In case MCA extend date of filing of Annual forms by mentioned in circular that no additional fees shall be charge for next 30 days then exemption shall be withdrawal from actual due date or extend date?

This is article no. 393 of the series of editorials written by the author on corporate laws {Including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008 etc.}.

Effects / WITHDRAWAL of Exemption Notification to Private Limited Company

Introduction:

Ministry of Corporate Affairs by notification dated 5th June, 2017 has given several exemptions to Private Limited Companies. Via Notification dated 13th June, 2017 MCA has added more exemptions by amending the notification dated 5th June, 2015.

Under the exemption notification a condition is mentioned as follow “These exemptions shall apply to the Private Company “Which has not committed a default in filing its financial statements under Section 137 of the Act OR annual Return u/s 92 of the said Act”

QUESTION- I
As per Companies Amendment Act, 2017 Following shall be due date of filing of Annual e-forms:-

   Ø  Annual Return i.e. (MGT-7)                 With in 60 days from AGM
   Ø  Financial Statement i.e. (AOC-4)                   With in 30 days from AGM

Example: If company fails to file annual forms within due dates

S. No.
Form No.
Date of AGM
Due date of e-form
Avaibility of Exemption
1.       
AOC-4
29-09-2018
28-10-2018
Non Available
2.       
MGT-7
29-09-2018
27-11-2018
Non Available





3.       
AOC-4
30-09-2018
29-10-2018
Non Available
4.       
MGT-7
30-09-2018
28-11-2018
Non Available

Therefore, as per above mentioned example one can opine that, if Company fails to file Annual Forms (either any one) then exemptions shall not be available to such private limited company and such company have to comply all the provisions of the act without any benefit of private limited Company.

 
Note: In other words, from F.Y. 2017-18 and onwards if a Private Company fails to file financial statement i.e. AOC-4 within 30 days from the date of AGM and Annual return within 60 days of AGM i.e. 60 days from AGM
Then all the exemption given the private limited Company by exemption Notification shall be withdrawan.

 









QUESTION- II
(ii) What shall be the effect on avaibility of “Exemptions to Private Limited Company” in case of Company files annual Form after due Date.

For example in above table Company files annual form on 20.12.2018 whether exemptions shall be available w.e.f. 21st December, 2018.

   Solution: As per Exemption notification exemption shall not be available to company which            has been fails to files financial statement u/s 137 and 92.

    Therefore, one can opine that if Company files Annual Forms after due date e.g. 20.12.2018.              Then it shall be compliance of provision of section 137 and 92. It shall be considered as                      default made good.

    Therefore, one can opine that once default made good ‘exemptions available to private limited          Company’ shall be available from such date.

However, once more question, whether such exemption shall be available after compounding or without compounding?’
QUESTION- III
(iii) In case MCA extend date of filing of Annual forms by mentioned in circular that no additional fees shall be charge for next 30 days then exemption shall be withdrawal from actual due date or extend date?

        For example: Hypothetical example
    
        Due date of Filing                                                       29.10.2017
        Extended date for Additional Fees                             29.11.2017
        Form actually filed on                                                20.11.2017
    
     Solution: Whenever MCA issue circular / notification for exemption from additional fees                for filing of e-forms. Subject of circular like: “[1]Relaxation of additional Fees and Extention of           last date of filing of ………. Forms”

   One can opine that, as date of annual filing extended by the MCA, Therefore, if MCA its self                extending date of annual filing in such case default of Section 137 and 92 shall be considered             after extended date.
    
    In other words, above mentioned example if Private Limited Company file forms on 20.11.2017        in such case exemptions on Private Limited Company shall not withdrawal.

    Conclusion:





All these efforts of MCA or Central Government give an idea that they are in frame of mind of taking severe actions for non compliance of Section 137 & 92. As non compliance of these two Sections have an effect on the transparency about the financial structure of the Company, Management structure of the Company. It is required to stringent the provisions to get it compliance by the Corporates.

(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.
This is only a knowledge sharing initiative and author does not intend to solicit any business or profession.


I am referring last year circular for this

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