Process of Change in Status of Company From Active Non Compliant to ACTIVE - Series 528
Process of Change in Status of Company
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.
Sh-7 (Increase in Authorized Capital)
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.
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 16th 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:
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:
After cessation of directors, now there are two directors on the board of Directors and both having active DIN Status.
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 email@example.com).
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