Implication of non-filing of annual form - Companies Amendment Act, 2017

SHORT SUMMARY:

In this Flash editorial, the author begins by referring the provisions of section 92 & 137 of Companies Act, 2013 relating to filing of MGT-7 & AOC-4. As the Companies Amendment Act, 2017 'hereafter referred as CAA-2017' has been passed in Rajya Sabha there are many alteration/ modifications are prescribed under the Act. One of the Major impacts of the CAA-2017 is on the filing of MGT-7 & AOC-4 like: increase in additional fees, trigging of Compounding etc.

The main shove of the research, is upon the matters like:

(i) What shall be side effect on Additional Fees of filing of Annual Form after Companies Amendment Act, 2017.

(ii) What shall be the Trigging Period for the compounding of offence of not filing of Annual form within the time prescribed under particular section?

(iii) What shall be the effect on availability of 'Exemptions to Private Limited Company' in case of default of filing of Annual Forms? Etc.

Introduction:

As per Companies Act, 2013 it is compulsory for the company to file Annual Return in e-form MGT-7 and financial statement in e-form AOC-4 after closing of financial year as per provision mentioned below. If company not be up to snuff for filing the same within prescribed time period then company have to put up with many type of complexities like: compounding on non compliance of sections, condonation of delay in filing of form, disqualification of directors, non availability of exemptions to private limited Companies, heavy additional fees etc.

As we are aware MCA has already closed approximately 200,000/- Companies Due to non Compliance in filing of Annual Form. MCA has taken many other actions in relation to the same like:

• MCA has issued notices to the directors of Company for action in case of non compliance of Section 137 & 92.

• They have touched the additional fees and compounding of non compliance of Section 137 & 92 under Companies Amendment Act, 2017.

• They have further touch the point in the Exemption Notification given to private limited Companies issued on 13th June, 2017.

A. Provisions under Companies Act, 2013

Language of Sections:

1. Section 137- Filing of Financial Statement: A copy of the financial statement, including consolidated financial statement, if any, along with all the documents which are required to be or attached to such financial statements under this Act, duly adopted at the annual general meeting of the company, shall be filed with the Registrar WITHINTHIRTY DAYSOF THE DATE OF ANNUAL GENERAL MEETING in such manner, with such fees or additional fees as may be prescribed WITHIN THE TIME SPECIFIED UNDER SECTION 403

2. Section 92- Filing of Annual Return: Every company shall file with the Registrar a copy of the annual return, WITHINSIXTYDAYSFROM THE DATE ON WHICH THE ANNUAL GENERAL MEETING is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees AS SPECIFIED, UNDER SECTION 403 or additional fees as may be prescribed, within the time.

One can opine that as per Section 137 and 92 company have to file the financial statement and Annual Return within 30 and 60 days of Annual General Meeting. If Company fails to file the same with in prescribe period of 30 and 60 days than with additional fees can file within time mentioned under Section 403 (i.e. 270 additional days).

Language of Section 403:

(1) Any document, required to be submitted, filed, registered or recorded, or any fact or information required or authorized to be registered under this Act, shall be submitted, filed, registered or recorded WITHIN THE TIME SPECIFIED IN THE RELEVANT PROVISIONON PAYMENT OF SUCH FEEAS MAY BEPRESCRIBED:

Provided that any document, fact or information may be submitted, filed, registered or recorded, after the time specified in relevant provision for such submission, filing, registering or recording, WITHIN A PERIOD OF TWO HUNDRED AND SEVENTY DAYS FROM THE DATE BY WHICH IT SHOULD HAVE BEEN SUBMITTED, filed, registered or recorded, as the case may be, on payment of such additional fee as may be prescribed:

First - Point of Research - Side Effects of Companies Amendment Act - 2017

I. Compounding:

As per above mentioned provisions of Companies Act, 2013 if company fails to file Annual form within the additional time prescribed under Section 403 (i.e. 270 days) then company have to file application with NCLT for compounding of offence u/s 137 and 92.

However, it can be opine that as per the provisions of Companies Act, 2013 Compounding shall be trigger after completion of additional 270 days. Practically Corporates use this period of 270 days as per their convenient and files the annual form within additional 270 days with additional fees.

Major Effect:

It is proposed to remove the reference of Section 403 from the section 137 and 92 under Companies Amendment Act, 2017.

It can be opine that, no additional time of 270 days shall be available for filing of MGT-7 and AOC-4 u/s 92 & 137. However, the requirement of compounding shall be trigger from 31st day and 61st day of Annual General Meeting.

II. No Upper Cap - Additional Fees:

In Companies (Amendment) Act, 2017 if any company fails to comply with the provisions of Section 92 & 137 the Companies Act, 2013 i.e. filing of e-form MGT-7 and AOC-4 with in period of 60 days and 30 days of date of Annual General Meeting Then it proposed in the bill that the Company can file such form subject to additional fees of Rs. 100/- per day.

Calculation of Time Period and Additional Fees:

Major Effect:

Alter the method of additional fees on filing of e-form MGT-7 & AOC-4 as mentioned above. One can be opine, there shall be huge additional fees for non-filing of Annual Forms and such fees shall be increase by each day. 'There is no upper cap in additional Fees'

III. Double/ Higher Additional Fees:

If the Company commits default of 2 or more occasions in filing of documents, facts or information required u/s 92 and 137 of the Act, the Company has to pay higher additional fee, as may be prescribed and which shall not be lesser than 'Twice the Additional Fees' as mentioned above.

Major Effect:

One can be opine that once non compliance of provision of Section 92 & 137 twice than additional fees shall be 'Twice the actual additional fees'.

Second - Point of Research:

Effects of Exemption Notification to Private Limited Company

Under the exemption notification a condition is mentioned as follow 'These exemptions shall apply to the Private Company 'Which has not committed a default in filing its financial statements under Section 137 of the Act OR annual Return u/s 92 of the said Act'

Major Effect:

As per the conditions if a Private Company fails to comply with the provision of Section 137 & 92 pertaining to filing of e-form AOC-4 & MGT-7 then exemptions give to private limited Companies by the notification dated 5th June, 2015 and 13th June, 2017 shall not be available.

Non-compliance shall be trigger from 31st day and 61st day. Thus, one can opine that due to CAA-2017, if a private Company make default in filing of Annual Form AOC-4 & MGT - 7 within 30 and 60 days then exemption shall be withdraw from such Company.

Conclusion:

All these efforts of MCA or Central Government give an idea that they are in frame of mind of taking severe actions for non compliance of Section 137 & 92. As non compliance of these two Sections have an effect on the transparency about the financial structure of the Company, Management structure of the Company. It is required to stringent the provisions to get it compliance by the Corporates.