Companies act
This query is : Resolved
04 December 2013
Dear Experts,
Please, give the explanation to this example. A Pvt. Ltd. Company is incorporated in the FY 2010-11 having 2 share holders, it is held AGM within the due dates i.e, for the FY 2010-11 on 30th Sep 2011, FY 2011-12 on 30th Sep 2012 and for the FY 2012-13 30th Sep 2013. But, it is not presented the Financial statements relating the FY 2010-11 and 2011-12. It, is Submitted all its Financials relating to the FY 2010-11, 2011-12 and 2012-13 on 30th Sep 2013. What are legal Consequences.
Please, give the explanation to this example. A Pvt. Ltd. Company is incorporated in the FY 2010-11 having 2 share holders, it is held AGM within the due dates i.e, for the FY 2010-11 on 30th Sep 2011, FY 2011-12 on 30th Sep 2012 and for the FY 2012-13 30th Sep 2013. But, it is not presented the Financial statements relating the FY 2010-11 and 2011-12. It, is Submitted all its Financials relating to the FY 2010-11, 2011-12 and 2012-13 on 30th Sep 2013. What are legal Consequences.
05 December 2013
Hi
If the annual general meeting of a company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, or is adjourned without adopting the balance sheet or, if the annual general meeting of a company for any year has not been held, a statement of that fact and of the reasons therefore shall be annexed to the balance sheet and profit and loss account required to be filed with the Registrar electronically in e-Form 23AC and 3-Form 23ACA— Section 220(2).
It has been clarified by the Department that the balance sheets and profit and loss accounts which are not laid before an Annual General Meeting of the company but submitted to Registrar of Companies, for filing under section 220 of the Act would not be taken on record. The question of launching prosecution in such cases would be considered. [Vide Circular No. 4/74, dated 22-2-1974]
If the annual general meeting of a company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, or is adjourned without adopting the balance sheet or, if the annual general meeting of a company for any year has not been held, a statement of that fact and of the reasons therefore shall be annexed to the balance sheet and profit and loss account required to be filed with the Registrar electronically in e-Form 23AC and 3-Form 23ACA— Section 220(2).
It has been clarified by the Department that the balance sheets and profit and loss accounts which are not laid before an Annual General Meeting of the company but submitted to Registrar of Companies, for filing under section 220 of the Act would not be taken on record. The question of launching prosecution in such cases would be considered. [Vide Circular No. 4/74, dated 22-2-1974]
05 December 2013
Penalty for non-compliance of section 220
If default is made in complying with section 220(1) and (2), the company, and every officer of the
company who is in default, shall be punishable with fine, which may extend to five hundred rupees for
every day during which the default continues. [Section 220(3)]
It has been held in the case of Ravindra Narayan v Registrar of Companies (1994) 2 SCL 281 (Raj),
that where there is a managing director of company, other directors cannot be held to be falling within the expression 'officer who is in default' in section 5 and cannot be held liable for default in complying with requirements of sub-sections (1) and (2) of section 220.
Where directors failed to file balance sheet and profit and loss accounts despite notice, it was decided that any director of the company who is knowingly guilty of the default would be an 'officer in default' under section 5 read with section 2(30). [Bachrenj Baid v State of West Bengal Case No. 809 (Kol) 92].
In the case of Alim Ahuja and Another v Registrar of Companies (2006) 129 Comp Cas 104 (Raj), the Registrar of Companies sent notices to the directors calling upon them to show cause as to why action
should not be taken for their prosecution for contravention of section 159/160/162/220 and as to why they should not be prosecuted under Section 210(5) of the Act, for the default in complying with section 210(3)
of the Act. On receipt of these notices, the petitioners filed application to High Court for grant of relief under section 633 of the Act instead of showing cause to the ROC praying that they were not active directors of the company and are being not connected with the management of the company.
The Court held that that the plaintiffs have voluntarily continued as directors of the company. The Board of Directors has never resolved to exempt them from their responsibility and duty as directors to comply with the provisions of the Act. It is hardly of any substance that petitioners are senior citizens. They had accepted the directorship voluntarily and presumed to have known of their responsibility, obligation,
liability and duty under the Act.
It was further held that rather than approach to this Court at this stage they should have placed their cases for consideration before the respondent but that has not been done. That apart the notices have been given only for launching the prosecution against the petitioners and in their prosecution they can take all these defences and where they are able to prove the same the Court may not punish them for violation of provisions of the Act.
Penalty for non-compliance of section 220
If default is made in complying with section 220(1) and (2), the company, and every officer of the
company who is in default, shall be punishable with fine, which may extend to five hundred rupees for
every day during which the default continues. [Section 220(3)]
It has been held in the case of Ravindra Narayan v Registrar of Companies (1994) 2 SCL 281 (Raj),
that where there is a managing director of company, other directors cannot be held to be falling within the expression 'officer who is in default' in section 5 and cannot be held liable for default in complying with requirements of sub-sections (1) and (2) of section 220.
Where directors failed to file balance sheet and profit and loss accounts despite notice, it was decided that any director of the company who is knowingly guilty of the default would be an 'officer in default' under section 5 read with section 2(30). [Bachrenj Baid v State of West Bengal Case No. 809 (Kol) 92].
In the case of Alim Ahuja and Another v Registrar of Companies (2006) 129 Comp Cas 104 (Raj), the Registrar of Companies sent notices to the directors calling upon them to show cause as to why action
should not be taken for their prosecution for contravention of section 159/160/162/220 and as to why they should not be prosecuted under Section 210(5) of the Act, for the default in complying with section 210(3)
of the Act. On receipt of these notices, the petitioners filed application to High Court for grant of relief under section 633 of the Act instead of showing cause to the ROC praying that they were not active directors of the company and are being not connected with the management of the company.
The Court held that that the plaintiffs have voluntarily continued as directors of the company. The Board of Directors has never resolved to exempt them from their responsibility and duty as directors to comply with the provisions of the Act. It is hardly of any substance that petitioners are senior citizens. They had accepted the directorship voluntarily and presumed to have known of their responsibility, obligation,
liability and duty under the Act.
It was further held that rather than approach to this Court at this stage they should have placed their cases for consideration before the respondent but that has not been done. That apart the notices have been given only for launching the prosecution against the petitioners and in their prosecution they can take all these defences and where they are able to prove the same the Court may not punish them for violation of provisions of the Act.
05 December 2013
Default of section 220 of the Act is compoundable under section 621A of the Act. But first the default should be made good and only then application for compounding of offence under section 621A will be maintainable. [General Produce Company Ltd. (1994) 4 Comp LJ 99 (CLB)]
Default of section 220 of the Act is compoundable under section 621A of the Act. But first the default should be made good and only then application for compounding of offence under section 621A will be maintainable. [General Produce Company Ltd. (1994) 4 Comp LJ 99 (CLB)]
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