NCLT impose penalty on company for non appointment of CS

M/s CARMEL ASIA HOLDINGS PRIVATE LIMITED WAS ASKED TO PAY A COMPOUNDING FINE OF Rs 4,72,675 for Not Appointing Company Secretary

Bangalore NCLT has made remarkable verdict where it ordered to pay a compounding fee of Rs 4,72,875 for Not Appointing Company Secretary .

Image result for ncltThe Company approached the erstwhile CLB and the present NCLT , Bangalore to compound the offence committed by it under section 383A for not appointing company secretary under section 383 A of the Companies Act ,1956. (Section 203 of Companies Act 2013)

It was argued by the petitioner company that even though it had appointed many company secretaries , they left the company in search of green pastures.

The Practicing Company secretary of the Company has informed the NCLT that the petitioner company is a subsidiary of M/s Sandur Power Company Limited and did not have adequate business activities and due to limited exposures , the appointed company secretaries are leaving the company in a short period. As such , the company is not able to get full time secretary during the intervening period.

It reflects that Petitioner Company has taken reasonable efforts to comply with the provision of the section 383 A of the CA 1956 but could not get a Company Secretary for the continuous period.

383A. Certain companies to have secretaries (1) Every company having such paid-up share capital as may be prescribed (Rs. 5 crores) shall have a whole-time secretary and where the Board of directors of any such company comprises only two directors, neither of them shall be the secretary of the company: Provided that every company not required to employ a whole-time secretary under sub-section (1) and having a paid-up share capital of 10 lakh rupees or more shall file with the Registrar a certificate from a secretary in whole-time practice in such form and within such time and subject to such conditions as may be prescribed, as to whether the company has complied with all provisions of this Act and a copy of such certificate shall be attached with Board’s Report referred to in Section 217.

It is to be noted that argument by the company that it took earnest efforts to appoint a company secretary and is using the services of a practicing company secretary was not accepted by the NCLT , Bangalore.

Image result for Tribunal orderNow , the available company secretaries has touched the land mark trend of 50000 numbers , companies in India cannot argue that adequate company secretaries are not available for employment and they are taking earnest efforts to find a company secretary or using the services of a practicing company secretary.

There are lot of company secretaries who have qualified recently are find it difficult to sit in a job and they are jobless. They are vexed to blame themselves for successfully completing the company Secretaries course.

If any member finds that a company avoids to fill in a company secretary position , they can bring it to the notice of concerned Registrar of Companies.

NCLT , Bangalore decision is a land mark decision and it is an eye opener for those erring companies which has not appointed a company secretary.

Click here to read final order

MCA Updates

  • Form AOC-4 CFS, GNL-1 and GNL-3 are likely to be revised on MCA21 Company Forms Download page w.e.f 8th MAR 2017. Stakeholders are advised to check the latest version before filing.
  • Form SPICe MoA, SPICe AoA and SH-11 were recently revised on MCA21 Company Forms Download page. Stakeholders are advised to check the latest version before filing.
  • Stakeholders may kindly note that in the new improved version of SPICe e-form, the Certificate of Incorporation will be generated only after approval of Company Incorporation by MCA and also allotment of PAN & TAN by Income Tax Deptt. Till the integration with the CBDT system stabilizes, few Stakeholders may experience occasional delay in receiving the Certificate of Incorporation (COI). Stakeholders may please note that the new functionality is intended to reduce the total time frame and number of processes for incorporation and allotment of PAN/TAN. All newly incorporated companies using SPICE e-forms are now receiving their PAN in the COI itself and TAN separately by e-mail.
  • Form 49A (PAN) and 49B (TAN) needs to be digitally signed by the same director who has affixed digital signature in Form SPICe (INC-32).

 

PAN DEACTIVATION BY INCOME TAX DEPARTMENT

Image result for Income Tax PANThe income tax department in its latest drive has started de-activating PAN of all income tax assesses who were allotted more than one PAN at anytime in the past.

Unfortunately, in many cases the PAN being deactivated is the PAN on which the assessees are filing their income tax returns. Once, the PAN is de-activated by the income tax department, the income tax e-filing login of the assessee also gets blocked and the PAN holder is not able to do anything on the Income Tax e-filing portal such as filing of Income Tax Returns, view intimations and respond electronically to various communications by the ITD.

Ques: What should be done in case the PAN is de-activated?

Ans: In case your Permanent Account Number (PAN) is de-activated then you need to do the following:

1) You need to write a letter to your jurisdictional AO in the Income Tax Department for activation of your PAN.

2) Following documents need to be attached to the letter for activation of PAN:

  • Indemnity Bond in favour of the Income Tax Deptt.
  • Copy of PAN on which the PAN holder is regularly filing the Income Tax Return.
  • Copy of last three years Income Tax Returns filed on the PAN de-activated.
  • It takes atleast 10-15 days for the Income Tax Department for re-activating the PAN after submission of letter to ITD.

Ques: I have received online intimation/mail regarding cash deposits during demonetization, how do I respond if my PAN is de-activated and I cannot login to the e-filing portal?

Ans: If you have received any intimation from the ITD for which an online response needs to be filed but your e-filing login is blocked then you need to approach your Jurisdictional AO for activation of your PAN ASAP as stated in the previous question.

Since, the re-activation of PAN by ITD takes some time therefore you can respond to the intimation manually by filing a response/letter to the jurisdictional AO.

Although, you might have filed the offline/manual response to the AO but you still need to ensure that you file the online response to the intimation as soon as your PAN is re-activated.

Major Changes in Budget 2017

Image result for budgetHello everyone; trust all of you doing well; Hope you will enjoy this update with us. Topic – Changes in budget 2017

  1. Turnover of companies upto 50 crore – tax will be 25% instead of 30%
  2. MAT credit carry forward for 15 instead of 10 years
  3. Long term capital gains on Property period reduced from 3 to 2 years
  4. Base Year for indexation now 2001 instead of 1981
  5. Presumptive tax for small traders with turnover upto 2 crore under 44Ad now 6% instead of 8 % for full non cash turnover
  6. Cash expenditure now allowed only 10000 instead of 20000 per transaction
  7. No transaction above 3 lac will be allowed in cash
  8. Trust cash donations max allowed only 2000 instead of 10000
  9. Political parties – max cash donations from 1 person Rs 2000
  10. Domestic transfer pricing – only if 1 party enjoys tax benefits
  11. 44AD – turnover limit increased to 2 crores for business.
  12. Professionals can pay advance tax in 1 installments if below 50 lac
  13. Time for revising income tax return now reduced
  14. Scrutiny time limit reduced to 18 months
  15. Individual tax reduced for income 2.5 to 5 lac tax rate now reduced to 5%
  16. Surcharge of 10% on those who earn income from 50 lac to 1 crore
  17. TDS – no Tds on insurance agents if 15 h filed
  18. Simple 1 page income tax return for persons having non business income
  19. Deemed sale value for sale of unquoted shares introduced. To be taxed at fair value. Sec 50CA
  20. In absence of PAN,the rate of TCS will be twice of the extent rate or 5%, whichever is higher. Sec.206CC.
  21. If Return not filed as per Sec. 139 (1), concept of late fee introduced. Rs. 5000 for delay up to 31st Dec. and Rs. 10000 thereafter. Late fee to be paid before filing the Return. Sec 234F
  22. CA issuing wrong certificate would be penalised with Rs. 10000
  23. Capital gain on shares will be exempt only if STT was paid while purchasing the shares.
  24. HP loss can be setoff against other head of income only to the extent of 200000 in same year. Balance loss can be c/f to 8 A.Ys.
  25. Individual and HUF to deduct tds even if unaudited @ 5% if rent is paid 50000 pm
  26. TDS in 194J amended, now 2 percent tds instead of 10
  27. The scope of section 56 will be widened and will also cover any kind of gifts in cash or kind or for no consideration with few exemptions and exception
  28. Dis-allowances of expenditure from income from other sources if tds is not deducted
  29. Self employed can also claim 20% contribution to NPS as deduction

MCA Updates

  • As part of the Ministry’s efforts towards promoting greater Ease of Doing Business to stakeholders, new version of Form SPICe (INC-32) with date of effect as 30th January 2017 will be notified soon, so as to include the functionality of applying for Company PAN and first TAN (allotted by Income Tax Dept) in the SPICe form itself. Applying for PAN / TAN will be compulsory for all fresh incorporation applications filed in the new version of the SPICe form. Stakeholders will be allowed to download new version of SPICe form for all fresh incorporation applications w.e.f 01 Feb 2017. For resubmitting SPICe forms filed before 30th January 2017, stakeholders are required to use older version of the SPICe form for resubmission, if needed. The old version can be used only for resubmissions.
  • Stakeholders may, therefore, kindly note that filing of SPICe forms (including resubmissions) will NOT be permitted temporarily w.e.f Saturday, 28th January until Tuesday 31st January, 2017. Thereafter, MCA21 system will accept new version of the SPICe form for fresh filings, as well as old version of SPICe for filing of previously marked resubmission cases. No PAN or TAN will be allotted for applications which were filed before 30th January 2017. Stakeholders are requested to plan accordingly.
  • Stakeholders may also kindly note that the revised version of Form SPICe (INC-32) will mandatorily require application for both PAN and TAN also. MCA21 system will auto generate the pre-filled application forms 49A (PAN) and 49B (TAN) after submission of SPICe, which the stakeholders will be required to download, affix digital signature and then upload both signed forms on MCA21 system as linked forms. New version of SPICe incorporation applications will be processed only after Forms 49A & 49B are duly signed, uploaded and payment is confirmed by MCA. PAN (as allotted by Income Tax Deptt) will be printed in the Certification of Incorporation, and TAN will be separately communicated to the stakeholders by email.

How you convert Private Limited 2 OPC

Image result for One person companyHello everyone, Trust all of you doing well in your life. Today I would like to share detailed procedure for conversion of “Private Limited Company” to “OPC” (One person company).

  • A Private Limited Company can be converted into One Person Company, as per the provisions of Companies act, 2013.
  • Rule 7 of Companies (Incorporation) Rules, 2014 – A Private Company, other than a company registered under section 8 of the Act, having paid up share capital of Rs. 50 Lakhs or less or average annual turnover during the relevant period is two crore rupees or less may convert itself into one person company.
  • In other words a Private Company with paid up capital of more than 50 Lacs or average annual turnover of more than Rs.2 Crores, cannot convert itself into One person Company.
  • A Special Resolution in the General Meeting has to be passed to approve such conversion, before passing such resolution, the company shall obtain a No Objection in writing from existing members and creditors.
  • It is important to note that No objection in writing from existing members and creditors is required shall be collected before passing Special Resolution.

Image result for procedure

Board Meeting

Issue Notice to the Directors of the Company for convening a Board Meeting, the main agenda would be as follows:

  • Approval for Conversion of Private Limited Company into One Person Company.
  • Fix the date and venue for convening Extra-Ordinary General Meetings to get approval from the Shareholders of the Company.
  • To approve notice of EGM along with Agenda and Explanatory Statement to be annexed to the notice of General Meeting.
  • To authorize the Director or Company Secretary to issue Notice of the Extra-ordinary General meeting (EGM) as approved by the board.
  • Issue Notice of the Extra-ordinary General meeting (EGM) to all Members, Directors and the Auditors of the company in accordance with the provisions of Section 101 of the Companies Act, 2013.

General Meeting

Hold the Extra-ordinary General meeting (EGM) on due date and pass the necessary Special Resolution, for Conversion of Private Company into One Person Company (OPC).

Filing of Forms with RoC

The Company is required to file Special Resolution passed by shareholders for Conversion of Private Company into One Person Company (OPC) with concerned Registrar of Companies. Hence, file form MGT.14 within 30 days of passing of Special Resolution with the concerned Registrar of Companies.

E- Form INC – 6

Accordingly an Application for conversion of a Private company into a OPC is required to be filed in e-Form INC.6 to the ROC concerned, with all the necessary annexure and with prescribed fee.

What happens after filing?

The Registrar of Companies (ROC) will check the E-forms and attached documents filed by the Company for Conversion of Private Company into One Person Company (OPC). On being satisfied that Company has complied with prescribed requirements the Registrar shall issue the Certificate to the effect of Conversion of Private Company into One Person Company(OPC).

Thanks | CS Sukhwinder Singh | +919999939069

 

RIGHT ISSUE AS PER SECTION 62 (1) A OF THE COMPANIES ACT, 2013

aaeaaqaaaaaaaazpaaaajdy4mjiyode0ltc2mtctndbjoc1imdi1lwq0odk0m2y0mtuwygAs per Section 62(1)(a) of the Companies Act, 2013, if the Company decides to issue Right shares, these should be offered to existing shareholders in proportion to their existing share holding. Companies pursue Rights Issue as an avenue to raise funds for various reasons, ranging from expansion or acquisitions to paying down debts.

Applicability

Provisions of Section 62 of the Companies Act, 2013 are mandatory for all Private companies, Public companies and listed as well as unlisted companies.

PROCEDURE FOR ALLOTMENT OF SHARES ON RIGHT ISSUE BASIS:

  1. Issue notice in writing to every Director at least seven days’ before convening the Board meeting. [Sec 173 (3)]
  2. Convene a board meeting and pass board resolution for approving Letter of offer; it must be keep in mind that letter of offer shall include Right of Renunciation also. Also authorize a Director of a company to issue “Letter of offer”.
  3. Dispatch Letter of offer through registered post or speed post or through electronic mode to all the existing shareholders at least three days before the opening of the issue.
  4. Receive acceptance, renunciation, rejection of rights from shareholders.
  5. Once Company received money from all the allottees, then it is required to allot shares within 60 days of receipt of application money.
  6. Issue notice in writing to every Director at least seven days’ before convening the Board meeting. [Sec 173 (3)]
  7. Convene a Board Meeting and present a list of allottees before the meeting and pass the resolution.
  8. File PAS -3 within 30 days from the allotment of shares.

    Attachment of PAS-3 are- (a) List of Allottees (b) CTC of Board Resolution for Allotment of Shares

  1. File MGT 14 for issue of securities.
  2. Issue share certificates within 2 months from the date of allotment of shares.

 Note. Sample of Board Resolution and List of Allottees are also attached to this articles, blogger can also get help of that.

Click here to download word format of List of Allottees

Click here to download word format of Board Resolution