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 31st March, 2019.
ü Every outstanding receipt of money in
Company as on 31st 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 1st April, 2014 to 31st 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 30th 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 31st March of last financial year.
e.g. DPT-3 filed for 31st
March, 2019 then audited net worth figure should be related to date 31st
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 30thJune mentioning details as on 31st
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 30th 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 31st March of last financial year.
e.g. DPT-3 filed for 31st March, 2019 then audited net worth figure should be related to date 31st 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 01st 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 22nd
January, 2019
2. Second for half yearly return mentioning data as on
31st 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:-
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. 30th May, 2019 (1st 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’ 30st
October
For
half year period ‘October to March’ 30th 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.
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.
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
Great piece of knowledge and reseaech sharing
ReplyDeleteIn case of MSME one time form, What date to be filled in point no. 3A and 3B.
ReplyDeletethanku sir , this information is very help ful
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