Punishment for Contravention on defaults relating to deposits

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Punishment for Contravention of Section 73 and Section 76 of Companies Act, 2013 for Acceptance of Deposits by Companies [New Section 76A inserted]

 

The Companies (Amendment) Act, 2015 has inserted a new Section 76A after Section 76 which introduces penal provisions for contravention of provisions of Section 73 and Section 76 (pertaining to acceptance of deposits by a company) or rules made thereunder, or if a company fails to repay deposits within the time specified.

As per the amended law:
A company, if it fails to repay deposits within the specified time, shall be punishable with a fine which shall not be less than Rs.1 crore but which may extend to Rs. 10 crores, in addition to the payment of the amount of deposit or part thereof and the interest due.
Every officer of the company who is in default shall be punishable with imprisonment which may extend to seven years or with a fine which shall not be less than Rs. 25 lakhs but which may extend to Rs. 2 crore, or with both.
Thus, specific punishment is prescribed for non-compliance to norms governing deposits taking activities.

Additional Fees for delay in e-filing under Companies Act, 2013

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MCA had changed the structure of Additional Fees to be levied for delay in filing E Forms over the companies while filing their Balance Sheet and Annual Returns with concerned Registrar of Companies through MCA Portal. Such change of Additional Fee Structure encouraged the Corporate to file their returns as early as possible so that they can avoid the heavy additional fees. That has resulted in increase the percentage of filing within the due time.

Pursuant to rule 12 of the Companies (Registration of Offices and Fees) Rules, 2014, following table of additional fees shall be applicable for delays in filing of the forms other than for increases in Nominal Share Capital

Sl  No. Period of delay  Additional fees for the period of delay
01 Up to 15 days (sections 93,139 & 157)         One time
02 More than 15 days and up to 30 days (Sections 93, 139 & 157) and up to 30 days in remaining forms.         2 times of normal filing fees

 
03 More than 30 days and up to 60 days         4 times of normal filing fees
04 More than 60 days and up to 90 days         6 times of normal filing fees
05 More than 90 days and up to 180 days         10 times of normal filing fees
06 More than 180 days and up to 270 days         12 times of normal filing fees

 

Further Note:

1) The additional fee shall also applicable to revised financial statement or board’s report under sections 130 and 131 of the Act and secretarial audit report filed by the company secretary in practice under section 204 of the Act.

(2) The belated filing of documents /forms (including increasing in nominal capital and delay caused thereon) which were due to be filed whether in Companies Act, 1956 Act or the Companies Act, 2013 Act i.e due for filing prior to notification of these fee rules, the fee applicable at the time of actual filing shall be applicable.

(3) Delay beyond 270 days, the second proviso to sub-section (1) of section 403 of  the Act may be referred.

MCA asks companies to submit annual filings on time

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To ensure that there is no last-minute congestion on its e-filing portal, the Ministry of Corporate Affairs (MCA) has asked companies to submit their financial statements and annual returns at the earliest.

The Ministry’s message assumes significance as this would also be the first year that corporates would be making their filings under provisions of the Companies Act, 2013 — which came into effect from April 1, 2014.

“To avoid last minute rush and system congestion on the MCA 21 portal on account of annual filings during month of October/November 2015, companies are requested to file their financial statements and annual returns at the earliest without postponing it to the last few days permitted for the same,” the Ministry said in a notice.

MCA 21 is the portal for companies to submit their filings electronically to the government under the Companies Act.

A raft of provisions have been introduced in the new law that replaces the nearly six-decade old Companies Act, 1956.

In terms of compliance, companies have slightly different requirements under the new Act and new electronic forms (e-forms) have been issued by the Ministry.

The Ministry, which is implementing the Companies Act, had earlier faced glitches with respect to functioning of MCA 21 due to various factors.

Most provisions of the Companies Act, 2013 came into force from April 1.

Among others, corporates are now required to furnish Permanent Account Number (PAN) while submitting their annual returns to the government, a move that would help in sharing of information between different departments.

So far, companies were not asked to provide PAN in the electronic form used for filing annual returns.

A new column has been inserted for providing PAN in the MGT-7 form — which is used for submitting the annual returns.

Meanwhile, the Ministry has already made a draft of changes to the Companies Act, 2013. Besides, various rules have been amended.

Amid concerns expressed in various quarters about certain provisions in the new Act, a high-level panel has also been set up to look into the issue.

Ease of doing business: Minimum Capital requirement, etc scrapped.

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Companies Amendment Act, 2015 has brought in certain provisions making way for Ease of doing business in India.

The Cabinet, chaired by Prime Minister Narendra Modi, had approved the changes in various provisions of the new Companies Act, 2013, which came into force with effect from April 1, 2014.

 

Minimum Capital requirement scrapped.

In the previous system, every company has to give a declaration to the Registrar of Companies (RoC), stating its paid-up capital is not less than Rs 500,000 in the case of public companies and not less than Rs 100,000 in the case of private companies, before commencement of business and exercising borrowing powers. The minimum paid-up capital requirement compliance and getting the certificate of commencement of business based on the above have been a hindrance for many small businesses.

Now, the minimum paid-up capital criteria have been scrapped, as per the Companies Amendment Act, 2015. Thus, a company can be formed even for small paltry amount of Rs. 10,000 and go ahead with doing business. The need to get the business commencement certificate based on the above compliance, is also dispensed with as per the Companies Amendment Act, 2015.

Common Seal made optional

Another provision under the Companies Amendment Act, 2015, towards Ease of doing business in India, is making Common Seal optional.

As a consequence, changes have been made with regards to authorization for execution of documents [Sections 9, 12, 22, 46 and 223], which made execution of documents, in the past, with  signatures of 2 directors under a Common Seal.

Schedules of Companies Act, 2013 and the corresponding provisions under Companies Act, 1956

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Table containing Schedules of Companies Act, 2013 as notified up to date and corresponding provisions thereof under Companies Act, 1956

Note: This is a ready reckoner for the information of stakeholders. Please refer to the relevant notifications and circulars issued separately.

Schedule. No. as per the Companies Act, 2013 (as notified – 282 sections)
 Schedules corresponding to the provisions of Companies Act, 1956
Schedule I Schedule I
Schedule II Schedule XIV
Schedule III Schedule VI
Schedule IV Nil
Schedule V Schedule XIII
Schedule VI Nil
Schedule VII Nil

Incorporation of Companies under Companies Act, 2013

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Steps for Incorporation of company under Companies Act, 2013

 

  1. Obtaining Digital Signature Certificate

For the Directors of the company, we have to obtain the Digital Signature Certificate (DSC).

For the DSC, the following documents are required:

  • For Indian Nationals: PAN Card (mandatory) and Voter’s identity card or Passport copy or Driving License copy
  • For Foreign nationals and Non Resident Indians: Passport Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile Bill; Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old. Foreign director’s specimen signature and latest photograph duly verified by the banker or notary.
  1. Obtaining Director Identification No. (DIN)

Application in Form DIR-3 is to be e-filed for getting the Director Identification Number for all the proposed directors.

  1. Application for Reservation of Name

Application in Form INC -1 to be e-filed for the proposed company, giving 5-6 options of the main name with combination of coined words. The same shall be reserved for a period of 60 days.

  1. Drafting of Memorandum of Association

The main lines of business to be pursued on formation of the company to be mentioned. The secondary or incidental objects also to be furnished.

  1. Drafting of Articles of Association

The bye-laws of the company to be drafted as Articles of Association in line with the provisions of the Companies Act, 2013.

  1. Filing Incorporation Form

The e-filing of Form No. INC.7 to be made alongwith,

(a) The Memorandum and Articles of the company duly signed by all subscribers;

(b)   A declaration in Form No.INC.8 by an advocate or Practicing professional (CA, CS, CA) who is engaged in incorporation, and a person named as Director, Manager or Secretary, that all requirements related to incorporation has been complied with;

(c)   An affidavit in Form No. INC.9 from each subscriber and from each person named as first director in the articles that, he is not convicted of any offence in connection with promotion, formation or management of any company, he is not been found guilty of any fraud or misfeasance or of any breach of duty to any company during preceding five years, and all the documents filed with the Registrar contain correct, complete and true information to the best of his knowledge and belief;

(d)  The address for correspondence till its registered office is established;

(e)  The particulars of every subscribers along with proof of identity;

(f)   The Particulars of first directors along with proof of identity; and

(g)  The particulars of interests of first directors in other firms or bodies corporate along with their consent to act as directors.

 

  1. Registered Office to be established

A company shall have a registered office within 15 days of Incorporation and it shall file Form No.INC.22 to verify the same.

Thus all the documents can be filed on-line to incorporate the company.

As initiative of ease of doing business, incorporation can be done through e-filing of single integrated Form 29, as well.

Ease of doing business: No need for certificate of commencement of business for companies

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Ease of doing business:

No certificate of commencement of business required for companies

The government has done away with this requirement, taking another step to ease doing business in India.

The Cabinet, chaired by Prime Minister Narendra Modi, had approved the 14 changes in various provisions of the new Companies Act, 2013 under the Companies (Amendment) Act, 2015.

One of the changes brought with reference to Commencement of Business Certificate is as below:

SECTION EARLIER PROVISION

 PROVISIONS AFTER AMENDMENT

11

 Commencement of Business. No requirement of Commencement of Business Certificate. Section 11 shall be omitted.

 

Many promoters have been asking for the clarification as, earlier companies having share capital shall not commence any business or exercise any borrowing powers unless –

Declaration shall be filed in Form No INC 21 by a Director and the content of the form shall be verified by Practising Professional (CS/CA/CWA) stating that every subscriber has paid the value of shares agreed to be taken and paid up capital is not less than statutory limit;

and

Following documents needs to be attached with the Form No INC 22

  • Registered document of the title in name of Company; or
  • Notarised copy of Lease/rent agreement along with rent paid receipt (Rent receipt shall not be older than 1 month); or
  • Authorisation from Owner to Company along with proof of ownership for use of premises as Registered Office (NOC can be submitted for this); and

Proof of evidence of any utility service like gas, electricity, telephone etc. in the name of owner (not older than 2 months)

The Cabinet, chaired by Prime Minister Narendra Modi, has made the meaningful change in various provisions of the new Companies Act, 2013, which came into force with effect from April 1, 2014, inter-alia, about the Commencement of Business Certificate and now, the government has done away with this requirement, taking another step to ease doing business in India.