26 May 2018
Two directors were appointed as additional directors and thereafter the other directors (who were the first directors) resigned from the post of directorship but still hold 100% shares of company. This was all done in the first year of incorporation which was FY 2013-14 and thereafter no AGM held and no annual filings have been done. As of now the company has only two additional directors, who were appointed in FY 2013-14 as per MCA records. Further the company has not commenced any business since its commencement. Now my queries are: 1.Who was responsible for e filing ? 2.Are additional directors disqualified as per Section 164(2) [in my opinion this is not possible because as per the provision of Section 161, additional directors shall hold office till next annual general meeting or the last date on which the annual general meeting should have been held, whichever is earlier.]. 3.How to remove the name of Additional directors from MCA site. 4.How to strike off name of such company.
26 May 2018
As per the provisions of Section 152 of the Companies Act 2013, every Director shall be appointed in General Meeting. But as per Section 161 (1) every additional director shall hold the office till the Conclusion of Annual General Meeting. So ideally such Additional director should have vaccated the office till the AGM of the Company but since then Company has not commenced any business and as the Company has not filled returns since then , so as per Section 164(2), directors become disqualified and as per the provisions of the Companies Act 2013, additional directors shall have the same power as that of original directors. So as per section 167, if any of the directors incuurs disqualification as per section 164, then office of such director becomes vaccat. so in your case also, such additional director are disqualified and the office of such director needs to be vaccated. and as per section 167 (3), if all the directors are disqualified, then promoters appoints the director or in absence of such promoter, central government appoints the director as company needs to comply with the requirement of minimum number of directors. Further for striking of the Company , if the notice is received by roc then company shall be strike off as per section 248(1)- sue motto power of ROC otherwise by company option as per section 248(2)
30 May 2018
Sir, Can additional directors regularise themselves as a whole time director ? Like in my case if Directors want to e file financial statements and annual return, then first they have to regularise themself, is it possible ?
CAclubindia
