03 March 2010
A private limited company has been incorporated on 24th Sept 2008. By which date should the first AGM be held and by which date should Form23 AC, Form 23ACA and Form 20B be filed. If the the AGM is still not held and filings not done, what is the solution to avoid the penalties. It is intended to hold the AGM withing 18 months, i.e by 23rd March 2010. What will be the implications of this?
Requesting your advice and guidance on an urgent basis.
03 March 2010
As per Section 166 , 1 AGM can be held within 18 months i.e. 23rd March 2010.
While as per Section 210 1st AGM need to be held within 9 months from the end of Financial year. so if your 1st FY is ending on 31 March 2009 than you need to held AGM on 31st Dec 2009.
of above which every is earlier that will be ur AGM date.
Form 23AC & 23ACA need to be filed within 30 days from AGM date and 20 B within 60 days of AGM date.
Thus first check your first financial year ends on which date and accordingly ur AGM will be held.
if you are unable to file these Forms within time than you can file with late fees but if AGM cannot be held within due date than many penalty for non compliance will be levied eg. Sec 166, 219,210 & other
03 March 2010
Thank You, Ma'am for your quick response.
To take care of the delay, can we keep the first financial year from sept 2008 to Aug 2009 and hold the first AGM by 23rd March? In this case, can we keep the second financial year as Sept 2009 to March 2010? Will this be advisable?
On the other hand, if we hold the AGM by Dec 2009 and go for late filing of Forms, what would be late filing fees?
Which of the above two would be an advisable option?
03 March 2010
Keep the first year from sept 2008 upto Sept 2009 (13 months). Only Board Resolution is required for the purpose. And keep the next year for six months from oct 2009 to march 2010.
If you opt for agm by dec 2009 and go for late filing, then Form 23ac & 23aca have to be filed by Jan 2010. For a delay of one month, additional duty is one times, for two months, two times. Since it is already March, the penalty will be two times the normal filing fees (which is max Rs. 500/-).
The Annual Return (Form 20B) has to be filed by Feb 2019 and hence penalty will be one times normal filing fees.
Let us first decide what is your financial year—your first financial year would be from 24.09.2008 to 31.03.2009 i.e. a period of 6 months and 07 days read with section 210(4).
Applicability of Section-166 read with section-210 suggest in your case
As per Section-166 last date for holding your AGM would be March 23, 2010 i.e. 18 months from the date of incorporation of the company.
As per section-210 Balance Sheet & Profit and Loss A/c shall lay before the members in case of first AGM within 9 months from the end of financial year i.e. last date for holding your AGM as per section-210 would be December 31, 2009.
Conclusion as per the rule of Harmonious construction
As per my opinion your first financial year is ending on March 31, 2009 and as per section-166 you may hold your first AGM up to March 23, 2010. But here if you follow section-166 blindly without application of section-210 then there would be violation of section-210 regarding presentation of Balance Sheet & Profit and Loss A/c to the members in the first AGM within 9 months from the end of financial year.
Final Answer—To conclude in your case last date for holding first AGM would be December 31, 2009 which is in line with the provisions of both the sections.
As per section-220 Balance Sheet & Profit and Loss A/c is required to be filed with ROC within 30 days of AGM. So last date of filing of form-23AC and 23ACA in your case would be January 29, 2010.
Annual Return
As per section-159 Annual Return is required to be filed with ROC within 60 days of AGM. So last date of filing of form-20B in your case would be February 28, 2010.
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