Process of Change in Status of Company From Active Non Compliant to ACTIVE - Series 528

Process of Change in Status of Company

From Active Non Compliant to

                                         Active      

It’s a common question amongst many professionals, mentioned below with hypothetical situation:

“If a company fails to file Active form, status of form changed as Active Non Complaint.

      ·        Out of 3 Directors 2 has not filed their DIR-3 KYC.

      ·        Due to non filing of DIR-3 KYC their DIN are deactivated.

    ·        Due to deactivation of DIN, Company is not able to file Annual Forms (AOC-4/ MGT-7)

     ·        If Company will not file Annual Forms it can’t file Active form to change status of Company.

This situation us facing by many corporate and professionals these days. These companies are “Active non compliant”. In this editorial author trying to discuss the situation step wise step.

Process of change in Status:

If a Company fails to file Active form then Status shall be changed as “Active Non Compliant” and company shall not be allowed to file following forms:

·        

        Sh-7 (Increase in Authorized Capital)

·        PAS-3 (Allotment of Shares)

·        DIR-12 (Appointment and Resignation of Director (Except

·        Cessation))

·        INC-22 (Change in Registered Office)

·        INC-28 (For purpose of Amalgamation or de-merger)

In simple word it is very difficult situation for a company if its status changed as “Active Non Compliant”. Now let’s discuss the same on the point view of hypothetical situation mentioned above.

STEP-I

Out of 3 Directors 2 has not filed their DIR-3 KYC and non co-operating in filing of KYC. Due to non filing of DIR-3 KYC their DIN are deactivated. Now how to appoint new Director to file pending annual forms with ROC, to update Annual Compliances?

As per Companies (Incorporation) Eighth Amendment Rules, 2019 on 16^th October, 2019, MCA has amended rule 25A as given below:

Legal Provision Company can’t file DIR-12 for change in director, except situations mentioned below:

      ·        Cessation of Any Director or

     ·        appointment of directors in such company where the total number of directors are less than the minimum number provided in clause (a) of sub-' section (1) of section 149 on account of disqualification of all or any of the director under section 164.

    ·        Appointment of any director in such company where DINs of all or any it’s director(s) have been deactivated.

    ·        Appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal under the provisions of this Act or under the Insolvency and Bankruptcy Code, 201.6).

One can opine that:

As per amended rules MCA allowing filing e-form DIR-12 by the Company, where DIN of directors deactivated due to non filing of DIR-3 KYC. Therefore, one can opine that company can file DIR-12 for appointment of new Director where other directors not updated their KYC.

Now question arise how to appoint new Director:

As there are 3 directors in the company in given example. They can appoint new director in meeting of board of Directors as Additional Director or call an EGM for appointment of Director.

STEP-II

Due to deactivation of DIN, Company is not able to file Annual Forms (AOC-4/ MGT-7)

After completion of Step-I. Now there are four directors on the Board of Company. Out of 4 directors DIN of 2 directors are de-activated. As DIN of 2 directors are de-activated company can’t file annual Forms.

Therefore, now question arise regarding removal of these two directors:

Company has to follow the process of removal of Director u/s 169 of Companies Act, 2013 and after completion of process have to file DIR-12 for cessation of such Directors. Company in ‘Active non compliant status’ still allowed to file DIR-12 for cessation of Directors.

STEP III

After cessation of directors, now there are two directors on the board of Directors and both having active DIN Status.

Company shall proceed further for filing of AOC-4 and MGT-7 for all the pending financial years. Once companies complete filing of Annual form, such company shall be eligible for filing of ACTIVE form.

STEP IV

Filing of ACTIVE form.

After completion of annual filing company shall file ACTIVE form with additional fees. Just after filing of Active form status of company shall be changed to ACTIVE.

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