Penalty/Fine on Late filing of e-form alongwith additional fees - Series 117
Penalty/Fine
on Late filing of e-form alongwith additional Fees
(20th
December 2019)
It’s a
common question amongst many professionals that “If company files e-form after due date whether there are any consequences
except additional fees?”
In this editorial, author will strive to answer the following:
v Whether Additional Fees is fine or Penalty?
v Provisions dealing with late filing of e-form.
v Consequences on late filing of e-forms except
additional fees.
i)
Many people having doubt whether ‘Additional Fees’ paid on filing of e-form
is penalty or fine?
As per Rule 12 of The Companies (The Registered
offices and Fees) Rules, 2014.
Additional fees is only a fees paid by
Company for filing of form. it is neither Fine nor Penalty.
Example: Section 92- Annual
Return
Sub section 4: States about filing of Annual Return
and additional fees in case of non filing with in prescribed period of 60 days
from AGM.
Sub Section 5: States about fine in case of company
fails to file annual return within time prescribed under sub section 4.
Therefore, one can opine
that for the same form (Annual Return - MGT-7), the Company is paying
additional fees on one hand and fine on the other, in case of not filing within
prescribed period.
Therefore, the Additional
fees is neither fine nor penalty.
Ø Provisions dealt with
Late filing of e-form
As
per Companies Act, 2013, every company has to file many e-forms with ROC. Some
as annual compliance and some as transaction based. Every form has its separate
section, additional fees and Penalty/ fine. E.g
S. No.
|
Section
|
e-form
|
Additional Fees
|
Penalty/ Fine
|
1.
|
92
|
MGT-7
|
100 per day
|
Company
and its every officer who is in default shall be liable to a penalty of fifty thousand
rupees and in case of continuing failure, with further penalty of one hundred
rupees for each day during which such failure continues, subject to a maximum of five lakh rupees
|
2.
|
137
|
AOC-4
|
100 per day
|
The
company shall be 9[8[6[liable
to a penalty]]] of one thousand rupees for
every day during which the failure continues but which shall not be more than
ten lakh rupees,
|
3.
|
Rule
16
|
DPT-3
|
2 Times
4 Times
6 Times
10 Times
12 Times
|
The
company and every officer of the company who is in default shall be
punishable with fine which may extend to five 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 day during which the contravention
continues.
|
4.
|
90
|
BEN-2
|
2 Times
4 Times
6 Times
10 Times
12 Times
|
company
and every officer of the company who is in default shall be punishable with
fine which shall not be less than ten lakh rupees but
which may extend to fifty lakh rupees
and where the failure is a continuing one, with a further fine which may
extend to one thousand rupees
for every day after the first during which the failure continues.
|
5.
|
117
|
MGT-14
|
2 Times
4 Times
6 Times
10 Times
12 Times
|
company
shall be liable to a penalty of one lakh rupees and
in case of continuing failure, with further penalty of five hundred rupees for each day
after the first during which such failure continues, subject to a maximum of
twenty-five lakh rupees
every
officer of the company who is in default including liquidator of the company,
if any, shall be liable to a penalty of fifty thousand rupees
and in case of continuing failure, with further penalty of five hundred rupees for each day after the
first during which such failure continues, subject to a maximum of five lakh
rupees.
|
6.
|
*450
|
MSME-1
|
NIL
|
company
who is in default or such other person shall be punishable with fine which
may extend to ten thousand rupees,
and where the contravention is continuing one, with a further fine which may
extend to one thousand rupees
for every day after the first during which the contravention continues
|
*However, if under any section penalty/ fine is not mentioned then fine/
penalty shall be levied as per section 450 of Companies Act, 2013.
As
everyone knows MCA has introduced section 454 under Companies Act, in respect
of e-adjudication of Penalties. Therefore, in any section which provide penalty
under Companies Act, 2013, ROC can issue notice for adjudication.
Ø CONSEQUENCES FOR LATE FILING OF E-FORMS
As
mentioned above:
§ Additional
fees neither Penalty nor Fine. It is just a fees paid to ROC for late filing of
form.
§ Every
section in which companies are filing e-forms prescribed penalty/ fine in
addition to additional fees. (Chart of some regular forms with corresponding additional
fees and penalties/ fine given above)
Question:
Whether fine/ penalty can be imposed after payment of additional fees?
If a company files
a form after due date even with late fees it shall always be considered as non
compliance of section. [eg. If company files e-form AOC-4 after expiry of due dates
i.e. 30 days then company and officer in default liable for penalty].
Once a company made
any non compliance it is required to do followings according to sections’
requirement:
§ Compounding
§ Condonation
§ E-adjudication
Therefore, one can
opine that if a company filing any e-form after due date, company and officer
in default always liable for payment of penalty/ fine under that section. Just
payment of additional fees can’t save a company from fine/ penalty.
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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
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