Understanding the companies fresh start scheme, 2020

Ankita Sharma , Last updated: 13 April 2020
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INTRODUCTION:

With the world economies facing the Covid-19 crises, governments across the globe are making reforms and amendments to their respective existing laws for benefit of businesses. The Ministry of Corporate Affairs (MCA) has also come with various compliance relaxations to provide relief to companies and LLPs.

The MCA on 30th March 2020 launched two such compliance relaxation schemes namely- (i) Companies Fresh Start Scheme, 2020; and (ii) LLP Settlement Scheme 2020 ("Both Schemes"). Both Schemes have been formulated to provide opportunities to companies and LLPs respectively to make good of any filing default, and make a fresh start as a fully legally compliant entity. The crux of Both Schemes is to provide a one-time waiver towards payment of additional filing fees by companies or LLPs with the Registrar of Companies ("ROC") during the term of the Schemes, i.e.: from 1st April 2020 to 30th September 2020 ["Term"].

By way of this Article we take an overview of the Companies Fresh Start Scheme 2020.

Companies Fresh Start Scheme, 2020 ["CFSS 2020"]:

A. Applicability of CFSS 2020:

Any "Defaulting Company" (any company registered under the Companies Act, 2013 or any other previous act, which has defaulted in filing any of its statements, returns, etc. with the ROC.) could file the belated forms during the Term of CFSS 2020 (i.e.: 1st April 2020 to 30th September 2020) which were previously due for filing on any given date as per the applicable provisions of the Companies Act, 2013 ("Act") at normal fees and without payment of any additional fees.

Understanding the companies fresh start scheme, 2020

CFSS 2020 shall not apply to:

	Any company against whom action for final notice for striking off has been initiated u/s 248 (Power of Registrar to remove the name of a company from the ROC);
	Any application already filed by the company for the action of striking off the name from ROC;
	Companies which have amalgamated under a scheme of arrangement or compromise under the Act;
	Vanishing Companies;
	Application made before the commencement of CFSS 2020 for obtaining "Dormant Status" under section 455 (Dormant Company); and
	Increase in authorized share capital of the company (Form SH-7) and charge related documents (CHG-1, CHG-4, CHG-8, and CHG-9).

B. Salient Features of CFSS 2020:

i. During the Term of CFSS 2020, the companies could by only paying the regular filing fees to ROC and with no additional/delay fee payments complete the necessary statutory filing compliances with the ROC (e.g.: returns, annual filing, financial statements).

E.g.: With respect to filing of Return of Allotment under PAS-3 within a specified period. Section 42(4) states that, the money received through private placement cannot be utilized unless filing of PAS-3 Form. Therefore, vide the means of CFSS 2020, a company could avail immunity towards delay in filing PAS-3 form at normal fee payment, but this immunity shall not be applicable for utilization of money raised through private placement. Thus, a company shall have to necessarily wait for the PAS-3 filing under the immunity cover, to utilize the money.

CFSS, 2020 shall be effective from 1st April 2020 until 30th September 2020.

In addition to the fee waiver, Inactive Companies could get themselves classified as "Dormant Company" u/s 455 [Dormant Company] of the Act vide filing of form MSC-1 at normal fee payment or apply for name striking off by filing of form STK-2.

CFSS, 2020 grants immunity towards proceedings for any additional filing fees or penalty at the ROC, but does not provide for any immunity cover for proceedings against company’s directors/KMP for violation of any law or proceedings involving shareholders’ interest.

The CFSS, 2020 further clarifies that where any penalties that have been imposed by any adjudicating authority for delayed filing, but no appeal has be made by the company before the Regional Director as on 1st April 2020, then-

If the last date for filing of appeal falls between 1st March 2020 to 31st May 2020 (inclusive of both days), a period of 120 additional days (commencing from such last date) shall be given to such companies to file the appeal before the concerned Regional Director ["Additional Period"];

During such Additional Period, no prosecution shall be initiated against the company and/or its officers with respect to any filing of document, statement or return with the ROC.

An application for seeking "Immunity Certificate" shall be made online by filing Form CFSS-2020. The said e-form is a zero fee form, which is readily available on MCA’s website.

Upon receipt of the Immunity Certificate by a company, the ROC having jurisdiction over a said company shall withdraw any pending prosecution(s) with respect to any penalty imposed for filing.

Upon the expiry of CFSS, 2020 (i.e.: on 30th September 2020) the ROC shall have the power to initiate necessary actions against the companies which have not availed the benefit immunity under CFSS, 2020 and still continue the filing default.

CFSS, 2020 shall provide immunity at normal filing fee for the following company e-forms:

Form No.	Description
23C	Appointment of Cost Auditors
MR-2	Form of Application to the Central Government for approval of appointment or reappointment and remuneration or increase in remuneration or waiver for excess or over payment to managing director or whole time director or manager and commission or remuneration to directors
ADT-2	Application for removal of auditor(s) from his/their office before expiry of term
NDH-2	Application for extension of time
DIR-3C	Intimation of Director Identification Number by the company to the registrar
INC-12	Application for grant of License under section 8
MSC-1	Application to ROC for obtaining the status of dormant company
DIR-12	Particulars of appointment of directors and the key managerial personnel and the changes among them
INC-4	Intimation for Change in Member/Nominee
INC-6	One Person Company – Application for Conversion
INC-22	Notice of Situation or Change of situation of Registered Office of the Company
INC-27	Conversion of public company into private company or private company into public company
20B	Annual Return
21A	Annual Return for company having no share capital
23B	Notice by Auditor
23D	Information by cost auditor to Central Government
23AC	Filing balance sheet and other documents with the Registrar
23AC- XBRL	Form for filing XBRL document in respect of balance sheet and other documents with the Registrar.
Form 66	Form for submission of Compliance Certificate
AOC-4	Form for filing financial statement and other documents with the Registrar
AOC-4 CFS	Form for filing consolidated financial statements and other documents with the Registrar
AOC- 4 (XBRL)	Form for filing XBRL document in respect of financial statement and other documents with the Registrar
ADT-1	Information to the Registrar by company for appointment of auditor
ADT-3	Notice of Resignation by the Auditor
BEN-2	Return to the Registrar in respect of declaration under section 90
CRA-2	Form of Intimation of appointment of cost auditor by the company to Central Government
CRA-4	Form for filing Cost Audit Report with the Central Government
DPT-3	Return of deposits
DPT-4	Statement regarding deposits existing on the commencement of the Act
GNL-2	Form for submission of documents with the Registrar
INC-5	One Person Company- Intimation of exceeding threshold
IEPF-1	Statement of amounts credited to the Investor Education and Protection Fund
IEPF-2	Statement of unclaimed or unpaid amounts
IEPF-3	Statement of shares and unclaimed or unpaid dividend not transferred to the Investor Education and Protection Fund
IEPF-4	Statement of shares transferred to the Investor Education and Protection Fund
IEPF-6	Statement of unclaimed or unpaid amounts to be transferred to the Investor Education an Protection Fund
IEPF-7	Statement of amounts credited to IEPF on account of shares transferred to the fund
IEPF-5 e- verification report	Application to the authority for claiming unpaid amounts and shares out of Investor Education and Protection Fund (IEPF) – E-verification report
I-XBRL	Form for filing XBRL document in respect of cost audit report and other documents with the Central Government
MGT-7	Annual Return
MR-1	Return of appointment of key managerial personnel
MSC-3	Return of dormant companies
NDH-1	Return of Statutory Compliances
NDH-3	Return of Nidhi Company for the half year ended
NDH-4	Application for declaration as Nidhi Company and for updation of status by Nidhis
PAS-3	Return of allotment
SH-11	Return in respect of buy-back of securities
A-XBRL	Form for filing XBRL document in respect of compliance report and other documents with the Central Government
DIR-3 KYC/Web form	Application for KYC of Directors
FC-1	Information to be filled by Foreign company
FC-2	Return of alteration in the documents filed for registration by foreign company
FC-3	Annual accounts along with the list of all principal places of business in India established by foreign company
FC-4	Annual Return of a Foreign Company
INC-22A	Active Company Tagging Identities and Verification (ACTIVE)
INC-20A	Declaration for commencement of business
AOC-5	Notice of address at which books of account are maintained
DIR-11	Notice of resignation of a director to the Registrar
GNL-3	Particulars of person(s) or key managerial personnel charged or specified for the purpose of sub-clause (iii) or (iv) of clause 60 of section 2
INC-20	Intimation to Registrar of revocation/surrender of license issued under section 8
INC-28	Notice of order of the Court or Tribunal or any other competent authority
MGT-6	Return to the Registrar in respect of declaration under section 89 received by the company
MGT-10	Changes in shareholding position of promoters and top ten shareholders
MGT-14	Filing of Resolutions and agreements to the Registrar under section 117
MGT-15	Form for filing Report on Annual General Meeting

CONCLUSION:

The main motto of CFSS, 2020 lies in providing immunity to companies for belated filings by waiving off the burden of additional fee payment, and to allow make a "Fresh Start" for FY 2020-21.

This one-time opportunity during the pandemic crisis shall lessen the time-clock burden on the companies for compliance adherence and filing proceedings. It shall be beneficial for companies to immediately complete an internal due diligence on any filing default and apply for immunity certificate under the CFSS, 2020.