Tag Archives: MCA

Clarification on Form ADT-1 (Form for Appointment of Auditor) filed through GNL-2 during the period 1 April 2014 to 20 October 2014

The Ministry of Corporate Affairs (the MCA) had received representation from various stakeholders seeking for relaxation from payment of additional fee specifically with respect to filing e-form ADT-1 which was filed through Form GNL-2 during the period from 1 April 2014 to 20 October 2014 for appointment of Auditors for the period 2014 to 2019 as the e-form ADT-1 was not available for filing during the said period and consequent to this, companies were facing difficulties in filling the details of Auditor in e-form INC-22A Active (One time return to be filed by companies on details of registered office of the Company).

MCA has considered the matter and issued a General Circular on 13 May 2019 clarifying  that the companies which had filed Form ADT-1 through form GNL-2 during non-availability of e-form ADT-1 i.e, from 1 April 2014 to 20 October 2014 may file e-form ADT-1 for appointment of Auditor for the period upto 31 March 2019 without any fee till 15 June 2019.

Further, the Companies which had filed form ADT-1 through e-form GNL-2 even after the deployment of e-form ADT-1 will have to file the e-form ADT-1 now with additional fee.

Source: http://www.mca.gov.in/Ministry/pdf/GeneralCircular13052019.pdf

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Simplified process of Incorporation & Commercial registrations

Introduction

The Ministry of Corporate Affairs (MCA) had notified the Companies (Incorporation) Third Amendment Rules, 2019[1] on 29 March 2019 which introduced the e-form INC-35 [Application for Goods and services tax Identification number, employees state Insurance corporation registration pLus Employees provident fund organisation registration (AGILE)]. The said AGILE form aims at bringing a single window where applicants can make applications under the Goods and Services Tax (GST), Employees Provident Fund Organization (EPFO) and Employees State Insurance Corporation (ESIC).

At present, the application for incorporation of a Company is made in e-form INC-32 (SPICe) along with e-Memorandum of Association (e-MOA) in Form No. INC-33 and e-Articles of association (e-AOA) in Form no. INC-34. Through e-form INC-32, the applicants can apply for PAN and TAN and now with the deployment of e-form INC-35, applications can be made for GST, EPFO and ESIC while incorporation of the Company.

This is a welcoming change brought about by the MCA wherein the incorporation process has been made hassle-free and the applicants can apply for various registrations while incorporating the Company. Previously, even after obtaining the certificate of incorporation Companies had to apply for registrations under the GST, EPFO and ESIC and subsequent approval. This proved to be a setback for companies and they couldn’t actually commence operation. However, with the introduction of the AGILE form the Ease of doing Business in India initiative has now been further enhanced.

How does this work?

For incorporation of the Company, applicants have to upload the requisite incorporation related linked e-forms i.e., INC-32, INC-33, INC-34 and INC-35. Thereafter, on approval of the same by the MCA, the Certificate of Incorporation, PAN and TAN is issued. Subsequently, the requisite information for GST, EPFO and ESIC (whichever service is availed) that has been filed in e-form INC-35 is forwarded to the concerned departments for its approval.

Thus, there are no repetitive submissions of incorporation related documents for obtaining registrations under GST, EPFO and ESIC.

Practical issues faced

Though this new amendment has made the incorporation process stress-free, applicants still face practical issues in this respect. Some of the issues are as follows:

  1. Companies have to provide a registered office address compulsorily for the AGILE form: While incorporating a company, applicants have an option to provide a correspondence address instead of a registered office address. However, they do have to obtain a registered office address within 30 days from the date of incorporation of the Company. This helps applicants a sufficient time to set up a registered office in case they do not have one at the time of incorporation. However, for the purpose of filing the AGILE form it is mandatory to have a registered office address as the form will only accept the address provided in the SPICe i.e., INC-32, or the correspondence address has to be the same as the address of the registered office.
  2. Principal place of business should be the same as the Registered Office of the proposed Company: Applicants willing to apply for GSTIN/Establishment code as issued by EPFO/Employer Code as issued by ESIC at the time of incorporating company, have to make sure that the principal place of business is the same as the Registered Office Address of the proposed Company. Thus, Companies intending to have the principal place of business different from the Registered Office address cannot avail this facility. They have to follow the existing registration procedure under the GST, EPFO and ESIC.
  3. Mandatory filing of AGILE form: Applying for GSTIN/ Establishment code as issued by EPFO/Employer Code as issued by ESIC at the time of incorporating company is optional. However, applicants have to still file the e-form as it is a linked e-form which accompanies the SPICe form for incorporation. This can prove to be an unnecessary compliance requirement for applicants who do not want to apply for GST, EPFO and ESIC registrations at the time of incorporation. 
  4. Resubmission of GST Application through the GST portal: In case of any error in the GST Application and the same has been sent for resubmission, applicants have to resubmit the application through the GST portal only. Further, if the TRN expires, a fresh application for GST shall have to be made through the GST portal too.

Conclusion

The introduction of this form surely proves to be beneficial for stakeholders however it still does not cover all the general registration requirements for a newly incorporated company such as Professional Tax, Trade License, Shop and Establishments, etc. Additionally, the MCA also has to look into the practical issue that are being faced and incorporate the changes to provide a seamless service.

Authors: Alivia Das and Ashwin Bhat

Reference:

[1] http://www.mca.gov.in/Ministry/pdf/companiesINC3rdAmendmentRules_30032019.pdf

Changes in Eligibility Criteria for Class Action Application

The Ministry of Corporate Affairs (“MCA”) on 08 May 2019 amended the National Company law Tribunal Rules, 2016, (“Rules”) which will streamline the provisions of Rule 84 of the said Rules (i.e. Right to apply under the Companies Act in case of Oppression and Mismanagement) and Section 245 (Class Action) of the Companies Act, 2013 (the Act).

While reading Section 245(1) of the Act together with the amended Rules it can be derived that following classes of members or depositors can Class Action under Section 245 of the Act before the National Company law Tribunal for seeking its order:

Category Criteria
In case of a company having a share capital The application shall be made by at least:

(a) 5% of total members or 100 members, whichever is less; or

(b) In case of an unlisted company, members holding at least 5% of issued share capital; or

(c) In case of a listed company, members holding at least 2% of issued share capital.

In the case of a company not having a share capital The application shall be made by atleast one-fifth of the total number of its members.
In case applicants are Depositors The application shall be made by at least:

 

(a) 5% of the total number of depositors or 100 depositors, whichever is less; or

(b) Depositors to whom the company owes 5% of total deposits of the company.

 

Source: http://www.mca.gov.in/Ministry/pdf/AmendmentRules1_08052019.pdf

Changes in the process of Strike-off of the Companies

The Ministry of Corporate Affairs (“MCA”) on 8 May, 2019 has notified the Companies (Removal of Names of Companies from the Register of Companies) Amendment Rules, 2019 (“Amendment Rules”) which shall come into effect from 10 May, 2019. The Amendment rules provides for the following changes:

(a) Explicit requirement of filing the Annual Forms

(i) The MCA vide this amendment has clarified that Companies have to file their overdue returns in AOC-4, AOC-4 XBRL and MGT-7 before filing an application in Form No. STK-2 with the Registrar of Companies (the RoC).

(ii) Company shall not be able to file Form No. STK-2, once it has received the notice of strike-off in Form No. STK-7 from the RoC.

(iii) The statutory fee for making an application for strike off has been increased to INR 10,000.

(b) List of documents to be filed with the RoC.

The application for removing the name of the Company from the RoC in Form No. STK-2 shall be accompanied by the following documents:

  1. indemnity bond (duly notarised) in Form STK 3;
  2. a statement of accounts containing assets and liabilities of the company made up to a day, not more than thirty days before the date of application and certified by a Chartered Accountant;
  • An affidavit in Form STK 4 by every director of the company;
  1. a copy of the special resolution duly certified by each of the directors of the company or consent of seventy-five per cent of the members of the company in terms of paid-up share capital as on the date of application;
  2. a statement regarding pending litigations, if any, involving the company.

As per the amendment rules, the aforementioned statement of accounts shall now be provided in Form No. STK-8 (the format of which has been provided in the Annexure to the principal rules).

Source: http://mca.gov.in/Ministry/pdf/AmendmentRules_08052019.pdf

Notification of Companies (Acceptance of Deposits) Second Amendment Rules, 2019

The Ministry of Corporate Affairs (the MCA) vide its Notification dated 30 April 2019, has amended the Companies (Acceptance of Deposits) Rules, 2014. This amendment is in relation to its earlier notification dated 22 January 2019 which mandated the non-government companies to file Form DPT 3 providing particulars of transactions that have not been considered as deposit under the Companies Act 2013 or both as on 22 January 2019. With this amendment, the MCA has amended to mandate the Companies to provide aforesaid information as on 31 March 2019. Further, it has extended the due date for filing Form DPT 3 from 22 April 2019 to 30 June 2019.

Source: http://www.mca.gov.in/Ministry/pdf/CompaniesAcceptanceDepositsSecAmendRules_01052019.pdf

Extension of due date for filing ACTIVE form

On 21 February 2019, the Ministry of Corporate Affairs (the MCA) had mandated all companies incorporated prior to 31 December 2017, to file Active Company Tagging Identities and Verification (Form INC 22A Active) on or before 25 April 2019. However, after considering the representation received various stakeholders, the MCA vide its Notification dated 25 April 2019, has extended the due date for filing the Form INC 22A Active till 15 June 2019.

Source:http://www.mca.gov.in/Ministry/pdf/CompaniesIncorporationFourthAmendmentRules_25042019.pdf

Withdrawal of restriction on LLPs to carry on Manufacturing activities

The Ministry of Corporate Affairs (the MCA) had earlier issued Office Memorandum (OM) No. to all the Registrar of Companies (the RoCs) dated on 6 March 2019, instructing the RoCs to reject the applications for incorporation of Limited Liability Partnerships (the LLPs) or conversion of entities into LLPs having Manufacturing & allied activities as the business of the LLPs on the ground that manufacturing activities does not fall under the definition of `Business’ as per the Limited Liability Partnership Act, 2008.

Now the MCA has withdrawn the aforementioned OM on such restriction to the LLPs from carrying out manufacturing & allied activities with immediate effect. Consequent to this clarification, LLPs can now carry out the manufacturing & allied activities and entities carrying-out manufacturing & allied activities can also convert themselves into LLP.

Link: http://www.mca.gov.in/MinistryV2/homepage.html