17 December 2010
Is compounding of offence available under Section 383A? If there is non-complaince in Sec. 383A but Secretarial Complaince Report obtained for the said F.Y. then it requires to do compounding or not?
In February 2008 the paid-up share capital of the Company reached Rs. 2 Crores and in the month of March 2010 the said date the paid up capital of the Company was Rs. 4.95 Crore.
The Company also by its letter in the month of August 2009 has informed the ICSI, WIRC for vacancy of CS. but get it in the month of March 2010.
The SCR obtained for FY 2007-08 & 2008-09. Then what will be the status under the said Section.
17 December 2010
Generally non-compliance of 383A is not taken very seriously due to reasons of non-availability of suitable persons, financial condition of the company, etc. Again proviso to Section 383A(1A) provides the company a reasonable opportunity to explain the efforts taken by them to comply with the provisions. Hence in my opinion compounding is not required provided the company has taken or is taking reasonable steps to engage a Company Secretary.
Non-compliance with the provisions of section 383A is an offence which is punishable with fine only and hence can be compounded under section 621A of the Companies Act, 1956.
What non-compliance you have made under section 383A i am not able to understand.Please Clarify....
In case thr paid up capital of ur company is Rs.10 Lacs or more but less than Rs. 5 Crores and u have obatined the Secretarial Compliance Certificate from a Company Secretary in whole time practice, then where is the non-compliance????? Pl. clarify....
As per proviso to Rule 2 (4) of the Companies (Appointment and qualification of Secretary) Rules, 1988, the company is required to appoint a whole time company secretary within a period of one year from the date of such increase.
In your case, the company capital increase to two crores on February 2008 and you inform the institute about the position on August, 2009, you have late informed the Institute and take more than one year, it means you have failed to take benefits of this rule and you not appoint secretary during that period.
At that time minimum requirement for appointment of CS was two crores.
I think, you have non-comply the provisions of section 383A of the Companies Act, 1956.
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