Important Update – Annual Filings

 

As per a recent notification dated October 29, 2019, the Ministry of Corporate Affairs (“MCA”) has provided relief to the stakeholders by relaxing additional fees and extending the last date of filing for the following for the financial year which ended on March 31, 2019 to:

  1. Filing of forms for financial statements – November 30, 2019; and
  2. Filing of annual returns – December 31, 2019.

On failure to file the forms by the above due dates, an additional fees of INR 100/- per day for each day of default will become applicable.

Information to Include in Director’s Report

The following information must be mandatorily disclosed in the Director’s Report filed by the Board of Directors:

1 Dividend, if declared & amount, if any, carried forwarded to reserves
2 Details of ESOPs:

a. Options granted

b. Options vested

c. Options exercised, and

d. Total number of Options in force, if any

3 Information about the financial performance / financial position and details of the subsidiaries / associates/ JV
4 Details of loans, investments and guarantees by the company
5 Details relating to deposits, covering the following:

Accepted during the year;
Remained unpaid or unclaimed as at the end of the year;
Whether there has been any default in repayment of deposits or payment of interest thereon during the year and if so, number of such cases and the total amount involved (i) at the beginning of the year (ii) maximum during the year and (iii) at the end of the year.
Details of deposits which are not in compliance with the requirements of Chapter V of the Act

6 Website address
7 Disclosures under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013
8 Borrowing by the company
9 Director remuneration (for each director)
10 Details of transfer of shares during the financial year
11 Break up of related party transaction (1. Name of related party and nature of relationship and 2. Duration of the agreement)

Is it mandatory to have audited balance sheet for a newly formed private limited company?

A private limited company is the most popular form of starting a business, there are various compliances which are required to be followed once a private limited company is incorporated including getting the balance sheet audited by the statutory auditors of the Company.

Every newly formed private limited company is required to appoint first statutory auditors of the Company, within 30 days of incorporation and in case of failure of the board to appoint such auditor, it shall inform the members of the Company who shall within 90 days at an extraordinary general meeting appoint such statutory auditor who shall hold the office till the conclusion of the first annual general meeting.

Every private limited company is required to file its balance sheet along with a statement of profit and loss account and director report within 30 days of holding of the annual general meeting.

Thus it is mandatory for every newly incorporated company to get its balance sheet audited and hold its first AGM within nine months from the closure of the financial year of the company and thereafter within six months from the closure of the financial year of the company.

Revival of Company Struck Off by Registrar Of Companies, India (“ROC”)

Over 2,00,000 companies which have not filed their annual returns and balance sheet for 3 consecutive financial years, have been de-registered by the Registrar of Companies (ROC) and a series of action against such companies have been taken including de-activating the DIN of the directors of such companies. This essentially means, that directors of such companies are now disqualified and cannot be appointed as directors in any other company.

However, the Registrar of Companies (ROC) has also now given an opportunity to such companies, to get their compliance in place and apply for the revival of the company.  If you are the director or promoter of any such company, then read on to understand how you can rectify the situation:

1. Who can apply for the revival of a company?

The following persons can file the application with National Company Law Tribunal (NCLT) for revival:

  • The company that has been deregistered by the Registrar of Companies (ROC);
  • Creditors or shareholders of a company that has been deregistered by the Registrar of Companies (ROC); and
  • Workmen of a company that has been deregistered by the Registrar of Companies (ROC).

2. What is the timeline for filing an application for revival of a company that has been deregistered by the Registrar of Companies (ROC)?

A company that has been deregistered by the Registrar of Companies (ROC) can apply for revival within the below-stated timelines:

  • Where the order for deregistration has been passed by NCLT: The company has 20 years from the date of strike-off order to apply to Registrar of Companies (ROC) for revival; or
  • Where the order for deregistration has been passed by Registrar of Companies (ROC): The company has 3 years from the date of the order passed by Registrar of Companies (ROC) to apply to Registrar of Companies (ROC) for revival.

3. What is the procedure to be followed for revival?

The applicant has to file a petition for revival with NCLT through the Registrar of Companies (ROC), in the prescribed Form NCLT-9 for the restoration of the name of the company with the following supporting documents:

  • Document and/or other evidence in support of the statement made in the application or appeal or petition, as are reasonably open to the petitioner(s);
  • Where the petition is presented on behalf of members (shareholders), the letter of consent given by them, if applicable;
  • Affidavit verifying the petition;
  • Evidence regarding payment of the fee of Rs. 1,000/-;
  • Memorandum of appearance with a copy of the Board resolution or the vakalatnama, as the case may be;
  • Certified True copy of the Power Of Attorney;
  • Affidavit Not Claiming Dormant Status Of The Company;
  • Affidavit on Demonetization;
  • Audited Financial Accounts, Profit and Loss account, Auditors Report;
  • Directors Report, AGM Notice, Attendance Register and Minutes;
  • Certified True Copy of the Memorandum of Association of the Company;
  • Certified True Copy of the Articles of Association of the Company;
  • Three copies of the petition; and
  • Any other documents in support of the case.

Upon receiving the application, NCLT shall fix a date for hearing the matter and after giving reasonable opportunity to both the parties of being heard, pass an order for restoration of the name of the company and removal of disqualification of the director, if it is satisfied with the reasons given by the company. There will, of course, be a certain penalty imposed as well.

4. Is the company automatically revived if the NCLT passes an order for restoration?

No. There are certain steps to be taken to restore the company. The applicant will have to submit a certified copy of the order with the Registrar of Companies (ROC) within 30 days from the date of the order. Only after the  Registrar of Companies (ROC) publishes the order of restoration in the Official Gazette, will the company be considered to have been restored.

In addition, the company will also have to complete all the pending financial statements and annual returns with the Registrar of Companies (ROC) and comply with the requirements of the Companies Act, 2013 and rules made thereunder within such time as may be directed by the NCLT.