Practical Difficulties – MCA Updates (DPT-3, MSME-1, DIR-3 KYC, Demat of Public Company)

Practical Difficulties –

MCA Updates (DPT-3, MSME-1, DIR-3 KYC, Demat of Public Company)

The Ministry of Corporate Affairs in its drive to provide relaxations or ease to corporate on many provisions Company Law regularly like: DPT-3, MSME-1, Demat of Shares and Return of the same etc.

In this Flash Editorial author begins by referring the queries / questions received from professionals, Students or corporate in relation to above.

This is article no. 452 of the series of editorials written by the author on corporate laws {including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008 etc.}.

FAQ’S – DPT-3- One Time

    1.  Which information are required to file according to Rule 16A in e-form DPT-3:-

As per New Rule 16A, Every Company has to file e-form DPT-3 with ROC containing following Information:

ü Every Outstanding Loan (Not Considered as Deposit) in Company as on 31^st March, 2019.

ü Every outstanding receipt of money in Company as on 31^st March, 2019.

Any loan received which falls under definition of deposit not required to mention while filing e-form DPT-3 under Rule 16A.

     2.  What is due date for filing of e-form DPT-3 in Rule 16A:-

Due date of Filing of e-form DPT-3 one time in rule 16A is 29th June, 2019. Because form required to file within 90 days from 31st March, 2019.

  

    3.  Outstanding Loan and outstanding receipt of money which period required to be report under this rule.

Outstanding receipt of Money and Loan from 1^st April, 2014 to 31^st March, 2019.

    4.  Whether auditor certificate is required to attach in e-form DPT-3 filed for one time return?

Rule 16A(3) doesn’t not state about auditor certificate in complete rule. Therefore, it seems that there is no need to attach auditor certificate in one time Return of DPT-3.

However, it is always advisable to take certificate from the auditor of Company.

Here Auditor include Statutory Auditor of the Company.

   5.  Whether entity wise/ transaction wise reporting is mandatory in DPT-3 one time?

As per available e-form CONSOLIDATED amount of “Total amounts of outstanding money or loan received by a company but not considered as deposits in terms of rule 2(1)(c) of the Companies (Acceptance of Deposits) Rules,2014 as specified in rule 16(A)(3)” required to mention in point no. 14 of e-form.

  

     6.  Which figures shall be considered for calculation “Net Worth” in point No. 8?

As per language of e-form DPT -3 “Net Worth as per the latest audited balance sheet preceding the date of the return”.

Ground of Discussion:

As per Companies Act, 2013 Company have to circulate audited financials with share holders at the time of AGM. There is no provision which restricting the company to get audit till 30^th June.

However, as per Rule 16 Every company….. file with the Registrar, a return in Form DPT-3……. furnish the information contained therein as on the 31st day of March of that year duly audited by the auditor of the company. (figure in relation to loans and deposits)

Therefore, one can opine that it is very clear by language of Law that figures of Net worth calculation should be audited by the Auditor of company as on 31^st March of last financial year.

e.g. DPT-3 filed for 31^st March, 2019 then audited net worth figure should be related to date 31^st March, 2018.

      7.  Whether NBFC Company is required to file e-form DPT-3?

As per Rule 1(3) (3) These rules shall apply to a company other than -

(i) a banking company;

(ii) a non-banking financial company as defined in the Reserve Bank of India Act, 1934 (2 of 1934) registered with the Reserve Bank of India; 

(iii) a housing finance company registered with the National Housing Bank established under the National Housing Bank Act, 1987 (53 of 1987)

Therefore, Rules of Deposits are not applicable on NBFC Companies.

Therefore, one can say that requirement of filing of DPT-3 states under Rule 16. However, Rules are not applicable on NBFC Companies.

It is crystal clear that NBFC Companies are not required to file e-form DPT-3 with ROC as per latest Deposit rules.

FAQ’S – DPT-3- Yearly

     1.  Which Companies are covered in rule 16 explanation:-

All the Companies required filing DPT-3 after publication of these rules

·        Small,

·        Non Small,

·        Private,

·        Public,

·        OPC etc

     2.  Which Companies are exempted in rule 16 explanation:-

Following Companies are exempted to file e-form DPT-3:

·        Banking Companies

·        Non Banking Financial Companies

·        Housing Finance Company

·        Government Company

       

   3.  What is meaning of “Deposit or Particulars Not Considered as Deposit” as mentioned in explanation.

DEPOSIT: Whatever includes in definition of Deposit as per Companies Act and rules eg.

·        Acceptance of loan from public,

·        Acceptance of loan from shareholders by Public Limited Company.

·        Acceptance of Loan from Body Corporate etc

PARTICULAR NOT- CONSIDERED AS DEPOSIT:

Whatever loan exempted under deposit rules and sections 73 shall be considered as particular of non-considered as deposit. Eg

·        Loan from Director is exempted Deposit. However will be covered under this head.

·        Loan from Bank, Financial Institutions Etc.

·        Loan from Company not considered as deposit. However covered under above head etc.

  

       4.      After publication of these rules i.e. 22nd January, 2019. When the first time requirement of filing of DPT-3 shall be trigger for Companies.

Every Company has to file DPT-3 every year after end of financial year before 30^thJune mentioning details as on 31^st March, 2019.

Particular of Transaction	Whether DPT-3 Filed or Not
Secured / Unsecured Loan Received (Bank, Other Entity)	YES
External Commercial Borrowing Received by Company	YES
Loan Received from Holding / Subsidiary/ Associate Company	YES
Loan Received from any other Company as (Inter Corporate Deposit)	YES

       5.      Which figures shall be considered for calculation “Net Worth” in point No. 8?

As per language of e-form DPT -3 “Net Worth as per the latest audited balance sheet preceding the date of the return”.

Ground of Discussion:

As per Companies Act, 2013 Company have to circulate audited financials with share holders at the time of AGM. There is no provision which restricting the company to get audit till 30^th June.

However, as per Rule 16 Every company….. file with the Registrar, a return in Form DPT-3……. furnish the information contained therein as on the 31st day of March of that year duly audited by the auditor of the company. (figure in relation to loans and deposits)

Therefore, one can opine that it is very clear by language of Law that figures of Net worth calculation should be audited by the Auditor of company as on 31^st March of last financial year.

e.g. DPT-3 filed for 31^st March, 2019 then audited net worth figure should be related to date 31^st March, 2018.

QUICK BITES:

      6.      If a company not having any outstanding loan or outstanding receipt of money as on 31.03.2019. Whether company need to file e-form DPT-3.

As per rule 16A DPT-3 Every Company other than Government Company shall file a onetime return of outstanding receipt of money or loan by a company but not considered as deposits.

Therefore, one can opine that in the above mentioned situation there is no need to file e-form DPT-3.

      7.      If some outstanding receipt of money or loan had become due before 01^st April, 2014, still continuing and outstanding in record of Company. Whether such outstanding loan or receipt required to report in DPT-3.

As per rule 16A DPT-3 required to file for each and every loan received by Company outstanding as on date of publication of these rules (22.01.2019).

Therefore, one can opine that such outstanding loan is required to report to ROC in e-form DPT-3

     8.      If Company received loan after 01st April, 2014 but such loan is not outstanding as on 31.03.2019 . Whether company need to report such loan in DPT-3.

As per language of Rule 16A, company has to report outstanding Loan and outstanding receipt of money to Roc in DPT-3. If Company has already paid Loan and such loan is not outstanding in record of Company. There is no need to inform such loan to ROC.

9.        If company doesn’t accept loan or doesn’t having any outstanding Loan. Whether need to file DPT-3,

If there is no outstanding Loan or company doesn’t accept any loan there is no need to file e-form DPT-3 with ROC.

FAQ’S – MSME-1 - One Time or Half Yearly

First we would like to clear that MSME form is required to file two times in Month May, 2019

1.  First for one time return mentioning date as on 22^nd January, 2019

2.  Second for half yearly return mentioning data as on 31^st March, 2019

I.        Which Companies falls under MSME

The limit for investment in plant and machinery / equipment for manufacturing / service enterprises, as notified, vide S.O. 1642(E) dtd.29-09-2006 are as under

Manufacturing Sector
Enterprises	Investment in plant & machinery
Micro Enterprises	Does not exceed Rs. 25,00,000/- (Twenty Five Lakh)
Small Enterprises	More than Twenty Five Lakh (25,00,000) rupees but does not exceed Five Crore Rupees (50,000,000)
Medium Enterprises	More than Five Crore (50,000,000) rupees but does not exceed Ten Crore (100,000,000) rupees
Service Sector
Enterprises	Investment in equipments
Micro Enterprises	Does not exceed Ten Lakh rupees (Rs. 1,000,000):
Small Enterprises	More than  Ten Lakh rupees(Rs. 1,000,000) but does not exceed Two Crore (20,000,000) rupees
Medium Enterprises	More than Two Crore (20,000,000)  rupees but does not exceed five core rupees (50,000,000)

  

II.        Which are Specified Companies:-

Every Company “PUBLIC OR PRIVATE” if falls in below mentioned condition:

III.        Which type of entities cover under Micro and Small entities?-

Micro and small Includes:

·        Proprietorship,                                 Hindu Undivided Family,               

·        Association of Persons,                 Co-Operative Society,

·        Partnership Firm,                            Company or       

·        Undertaking

  

IV.        Which form Specified Company required to file with ROC:-

Specified Companies are required to file returns with ROC in e-form MSME-1:

Two Type of Returns required filing by “Specified Companies” like:

       

          ·        One Time Return

·        Half Yearly Return

  

V.        Which is due date of filing of “One Time Return”?

One time return required to file within 30 days of publication of these rules i.e. 30^th May, 2019 (1^st May, 2019 + 30 days)

VI.        In “One Time Return” which type of information required to submit with ROC?

VII.        Which is due date of filing of “Half Yearly Return”?

For Half year period ‘April to September’                30^st October

For half year period ‘October to March’           30^th April

QUICK BITES:

VIII.        If a Company falls in criteria of MSME, However not registered under MSME Act. Whether Company need to mention details of such MSME in their reporting?

As per language of Notification, If a Company registered under MSME Act and having a valid MSME certificate. Then only required to include in reporting while filing of MSME-1.

Therefore, one can opine that, Details of only registered MSME required filing with ROC in form MSME-1.

IX.        If on 22.01.2019 (date of notification of rules) company doesn’t have any MSME register creditor. Whether Company need to file MSME-1 with NIL details.

As per language of Notification, if all the vendors/ creditors of Company are NON- MSME registered. In such case there is no need to file MSME-1.

X.        Whether Udyog Aadhar Registration shall be considered as MSME Registrations.

As per MSME Act Udyog Aadhar is a way out to get registration of MSME. Therefore, such registration shall be considered as MSME Register.

 XI.        Whether there is any limit on amount of transaction with MSME?

As per MSME Act, 2006; Limit of amount doesn’t matter to check whether payment made in 45 days or not.

For an EG. If due amount is Rs. 100/- only and doesn’t made payment in 45 days. Specified Companies needs to report the same to ROC in e-form MSME-1.

XII.        What are the Consequences on Company if its fails to file e-form MSME-1 within 30 days of notification?

Statutory Provisions Contained Under the Act:

Section 405: - Power of Central Government to Direct Companies to Furnish Information or Statistic

(1) The Central Government may, by order, require companies generally, or any class of companies, or any company, to furnish such information or statistics with regard to their or its constitution or working, and within such time, as may be specified in the order.

(4) If any company fails to comply with an order made under sub-section (1) or subsection (3), or knowingly furnishes any information or statistics which is incorrect or incomplete in any material respect, the company shall be punishable with fine which may extend to twenty-five thousand 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 twenty-five thousand rupees but which may extend to three lakh rupees, or with both.

Therefore, one can opine that if company fails to file MSME-1 within 30 days then Penalty shall be as follow:

Penalty on	Minimum Fine	Fine can Extend Upto
Company	Rs. 25,000/-	Rs. 25,000/-
Officer in Default (KMP, Directors)	Rs. 25,000/-	Rs. 300,000/-

XIII.        How to identify whether creditors entity falls under Micro and Small or not?-

For the purpose of reporting under MSME Form-1. Company should be aware that creditor’s entity is Micro or Small or not.

Therefore,

·        Company have to ask a declaration from the creditors whether they falls under Micro or small or not and whether as on date they meet criteria of MSME.

·        Company has to ask for copy of certificate of registration under MSME.

XIV.        Whether Traders and Retailers can get registration under MSME?

As per our understanding of MSME Act, Only manufactures and service provides as mentioned above can get registration under MSME.

XV.        If there is an agreement between MSME registered company and other company for payment with in any days more than 45 days e.g 60 days or 75 days? Whether Specified Company need to file e-for MSME-1 after expiry of 45 days?

As per section 15 of MSME Act, “in no case period agreed between supplier and buyer in writing shall exceed 45 days from day of acceptance.

Therefore one can opine that, agreement between supplier and buyer for payment after 45 days doesn’t have any effect in filing of MSME-1. Because as per MSME Act, supplier and buyer cannot decide day more than 45 days.

 XVI.        What are consequences for non filing of the MSME form?

As per section 16 of MSME Act, if buyer make

§  Delay in payment more than 45 days or

§  Delay in payment from agreed term or

§  Delay in 15 days payment where no term agreed

In such case buyer is liable to pay compound interest with monthly restes to the supplier on that amount from the appointed day, at three times of the bank rate notified by RBI.

Therefore one can opine that, consequences nonpayment within above mentioned specified time buyer liable to make payment of heavy interest.

  

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