Signing board's report after issue of notice of agm

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Querist : Anonymous

Querist : Anonymous (Querist)

29 October 2012 notice of AGM was issued on 29/8/2012. can directors sign board's report on 20/09/2012????

Ajay Mishra

Ajay Mishra (Expert)
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29 October 2012 Hi

Notice of AGM shall contain, 4 ordinary business which will be finalise by the Board in its meeting before sending the Notice of AGM. Thease business are:

1. Adoption of Balance Sheet
2. Appointment of Auditor,
3. Dividend
4. Re-appointment of Director

Generally The Companies Act, says that Balance Sheet should be send by the company at least 21 days before the AGM. So before adopting the balance sheet you can not send such balance sheet to its members.

So you can not send the notice of AGM,before finalising the above mentioned items.

Regards

CS Ankur Srivastava

CS Ankur Srivastava (Expert)
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29 October 2012 Notice is to be placed and signed at last...

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Querist : Anonymous

Querist : Anonymous (Querist)

29 October 2012 what if 23AC has been filed showing above dates???
Date of notice attached shows 29/08/2012
Date of signing Board's Report and signed by auditor shows 20/09/2012?
Please let me know Consequences of above and how to rectify it.....

Ajay Mishra

Ajay Mishra (Expert)
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29 October 2012 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.

Querist : Anonymous

Querist : Anonymous (Querist)

29 October 2012 what steps i should take to rectify this mistake?

Ajay Mishra

Ajay Mishra (Expert)
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29 October 2012 General Circular No: 5/2010

No.17/75/2010-CL.V
Government of India
Ministry of Corporate Affairs
5th floor, `A' Wing, Shastri Bhavan,
Dr. Rajendra Prasad Road, New Delhi-110 001.
Dated: 22nd November, 2010

To
All Regional Directors
All Registrars of Companies

Subject:- Reopening/revision of annual accounts after their adoption in the annual general meeting.

Sir,

Your attention is drawn to the provisions of section 220 of the Companies Act, 1956 which provide for the manner in which annual accounts (viz balance sheet and profit and loss account etc) are laid before annual general meeting for adoption by shareholders and filed with Registrar. This Ministry, vide General Circular Number 1/2003 (F. No. 17/75/2002) dated 13.01.2003 had directed the grounds and manner in which accounts can be re-opened/ revised by companies and thereafter adopted by shareholders. A copy of such circular is attached.

It has now come to the notice of the Ministry that few companies have been filing their annual accounts under section 220 more than once resulting into filing/availability of more than one such accounts in the Registry for a particular financial year.
The matter has been examined in the Ministry in detail and it has been concluded that keeping in view the provisions of section 220 of the Act read with Ministry’s General Circular 1/2003, a company cannot lay more than one set of annual accounts for a particular financial year unless it has reopened/revised such annual accounts after their adoption in the Annual General Meeting on the grounds specified in Ministry’s circular Number 1/2003.

Accordingly, it is hereby directed that ROCs should keep a watch on such kinds of repeat filings of annual accounts and such accounts should not be accepted except in accordance with provisions of section 220 read with Ministry’s General Circular 1/2003.

Yours faithfully,
(E. Selvaraj)
Director (inspection & Investigation)
(Ph: 2338 4502

Ajay Mishra

Ajay Mishra (Expert)
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29 October 2012
General Circular No: 1/2003
No.17/75/2002-CL.V
Government of India
Ministry of Finance and Company Affairs
Department of Company Affairs

5th floor, `A' Wing, Shastri Bhavan,
Dr. Rajendra Prasad Road, New Delhi-110 001.

Dated: 13th January, 2003

To
All Regional Directors
All Registrars of Companies

Subject:- Reopening/revision of annual accounts after their adoption in the annual general meeting.
.....
Sir,

In partial modification of earlier view on re-opening/revision of annual accounts, this Department had clarified in 1987 that a company could reopen and revise its accounts even after their adoption in the annual general meeting in order to comply with technical requirements of taxation laws and further adopt the revised annual accounts in the subsequent annual general meeting and file with the Registrar of Companies.

2. Recently it has come to notice of the department that insurance companies, pursuant to directions for revision of accounts by Insurance Regulatory and Development Authority (IRDA) are required to reopen their accounts.

3. It is hereby clarified that a company could reopen and revise its accounts even after their adoption in the annual general meeting and filing with the Registrar of Companies in order to comply with technical requirements of any other law to achieve the object of exhibiting true and fair view. The revised annual accounts would be required to be adopted either in the extraordinary general meeting or in the subsequent annual general meeting and filed with the Registrar of Companies.

Yours faithfully,

(E. Selvaraj)
Joint Director (T)
(Ph: 2338 3452)

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