COMPANY INCORPORATED ON OR BEFORE DECEMBER 31, 2017? IMPORTANT MCA NOTIFICATION

However, the Companies which have not filed Financial Statements or Annual Returns or both (except case recorded under management dispute) shall not be able to file the said e-Form ACTIVE.

Companies Excluded from the requirement of filing the said e-Form:

  • Struck off Companies
  • Companies under the process of Strike off
  • Companies under Liquidation
  • Companies Amalgamated
  • Companies Dissolved

Failure to File the said e-Form ACTIVE (INC-22A):

1) If the Company fails to file the said e-Form ACTIVE on or before the due date then such Company shall be marked as “ACTIVE-NON-COMPLIANT” and shall be liable for action under Section 12(9) of the Companies Act, 2013.

2) The following e-Forms shall be barred from taken on record:-

  • SH-7 (Change in Authorized Capital)
  • PAS-3 (Change in paid-up Capital)
  • DIR-12 (Change in Director except cessation)
  • INC-22 (Change in Registered Office)
  • INC-28 (Amalgamation, de-merger)

3) Penalty of INR 10,000/- after due date.

FILING FEES:

On or before June 15, 2019 – Nil

After June 15, 2019 – INR 10,000/-

Mandatory Attachment to e-Form ACTIVE (INC-22A):

Photograph of Regd. Office showing the external building and inside office and also showing therein at least one Director/KMP who has affixed his/her DSC to the said e-Form.

MCA FILING DEADLINE EXTENDED

The Central Government vide its notification dated November 02, 2018 had directed that every *“Specified Company” shall file MSME Form I with details of all outstanding dues to Micro or Small Enterprises suppliers existing on the date of notification of this order (i.e. January 22, 2019) within 30 days from date of publication of this notification i.e. on or before February 21, 2019.
However, as per the recent circular published by MCA on February 21, 2019 the due date of filing MSME Form I for the Specified Companies has been extended and the Companies now have to file the specified form within 30 days from the date of publication of MSME Form I on MCA 21 Portal. As of now, the specified form has not been published yet.
*Specified Companies include the following:
All companies, who get supplies of goods or services from micro and small enterprises and whose payments to micro and small enterprise suppliers exceed forty five (45) days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of section 9 of the Micro, Small and Medium Enterprises Development Act, 2006.

New Form Filing By MSME

In a push to ensure transparency of dues in the MSME sector, the Ministry of Corporate Affairs (“MCA”) has issued following direction to certain specified companies as listed below (“Specified Companies”):

(i) 45 days to report existing outstanding: Details of all outstanding dues to Micro or small enterprises suppliers existing on January 22, 2019, should be reported with ROC in MSME Form I within thirty (30) days from January 22, 2019 i.e. by February 20, 2019; and

(ii) Continuing reporting: File a half yearly return in MSME Form I for the period April to September by October 31 and for the period October to March by April 30 every year.

Meaning of Specified Companies:

All companies, who get supplies of goods or services from micro and small enterprises and whose payments to micro and small enterprise suppliers exceed forty five (45) days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of section 9 of the Micro, Small and Medium Enterprises Development Act, 2006.

New norms in the E- Commerce sector under the Foreign Direct Investment (FDI) Policy Circular 2017

The Department of Industrial Policy and Promotions, Ministry of Commerce and Industry, Government of India, had issued a Press Note No. 2 (2018 Series) bringing new norms for the foreign direct investment in the E-commerce sector (“Press Note”).

The Press Note introduced following additions in Section 5.2.15.2 (E-Commerce Activities) of the Foreign Direct Investment Policy Circular 2017 dated August 28, 2017 (“FDI Policy”):

  • A marketplace cannot sell more than 25% of the seller’s inventory on its platform and such marketplace shall deem to have control over such seller’s inventory if the marketplace purchases more than 25% from the seller;
  • A marketplace entity cannot have exclusive arrangements with the sellers;
  • An entity (i) which is either controlled by a marketplace entity or its group companies; or (ii) has equity participation of such marketplace entity or its group companies, will not be allowed to sell its products/services on such marketplace;
  • Further the services that are being provided by the marketplace or other entities of vendor, in which such marketplace or its subsidiaries has control or equity participation, should provide such services (including logistics, warehousing, advertisement/marketing, payments, financing etc) at arm’s length and in a fair and non-discriminatory manner to all its vendors. The cashback provided by such marketplace entity to the buyers has to be fair and non-discriminatory; and
  • There has been a new addition with respect to the compliance to be followed by all the marketplace entities. Every marketplace entity will furnish a certificate along with a statutory auditor’s report to Reserve Bank of India, confirming compliance with the e-commerce guidelines for the immediate preceding financial year, by 30th September of each year.

Newly incorporated companies will now require Certificate Of Commencement Of Business

Commencement of Business:

As per MCA notification dated December 18, 2018, every public and private limited company having share capital incorporated after December 18, 2018 cannot commence its business or exercises any borrowing powers until it has obtained the certificate of commencement of business (COB) from the concerned Registrar of Companies (ROC). The company can commence its business activities only when:

  1.  A declaration in form 20A is filed by a director with the ROC within 180 days of company incorporation, to the effect that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him; and
  2.  The company has filed with the ROC all the documents with respect to situation of its registered office in form INC-22 within 30 days of incorporation of company.

For e.g.: A newly incorporated company can enter into employment agreement but it cannot enter into any service contract or provide services without obtaining the COB.

Consequences of non-filing for commencement of business:

  1.  Penal Provision: In addition to late filing fees levied by ROC, Penalty upto Rs. 5,000/- and every officer who is in default shall be punishable with fine upto Rs. 1,000/- for every day during which the default continues.
  2.  Removal of name from register of companies:  In case of default in filing with the ROC for commencement of business within a period of 180 days of the date of incorporation of the company and the ROC has reasonable cause to believe that the company is not carrying on any business or operations, the ROC may initiate action for the removal of the name of the company from the register of companies.