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Cessation Of Director In Case Of In-Active Companies

December 17, 2019

Cessation of Director in case of In-active Companies

Cessation of Director in case of In-active Companies

The Ministry of Corporate Affairs (MCA) recently introduced the concept of Active Company Tagging Identities and Verification (ACTIVE) which required filing of new e-Form INC- 22A effective from February 25, 2019. Companies which complied with the requirement were tagged as ACTIVE and Compliant while the Companies which did not comply with the requirement were tagged as ACTIVE non-compliant company. The ACTIVE non-compliant companies were restricted from filing various forms including Form DIR 12 except in case of cessation of any director.

The Ministry of Corporate Affairs (MCA) introduced Companies (Incorporation) Amendments Rules, 2019 pursuant to which the new e-Form INC - 22A (ACTIVE) is to be filed. The form records the address of the registered office along with the latitude and longitude of the place where its registered office is situated and a photo of the registered office.

This e-form enables geo-tagging, i.e., attaching data of the exact location of the office and it will allow the online return filing system to alert government officials wherever it detects that, far too many companies are registered in the same premises and enables them to identify the shell companies.

Applicability:

The e-form filing with the Ministry of Corporate affairs applies to every company incorporated on or before 31st December 2017. Such companies shall file the particulars of the company and its registered office, in e-Form INC -22 A [ACTIVE (Active Company Tagging Identities and Verification)] on or before 15th June 2019. Ministry of Corporate Affairs has not extended the timeline for filing, if a Company has to file Form INC-22A as on date, it can do so by paying a filing fee of Rs. 10,000/-.

If the e-form INC-22A was not filed on or before the said date, the status for such companies has been marked as ‘ACTIVE Non-compliant’.  Also, the Director Identification Number (DIN) of all the Directors of such ‘ACTIVE non-compliant’ companies have been marked as ‘Director of ACTIVE non-compliant company’.

Objective behind introducing e-Form INC 22A (ACTIVE) by the Registrar:

  1. To identify and monitor through a single form the companies violating various applicable provisions of the Companies Act, 2013 and Rules made thereunder.
  2. To enable the common public to be aware of the KYC status of companies and their Directors.
  3. Verify and collate all the details which the Ministry of Corporate Affairs has about the Companies registered with it.

Exempted Companies from filing the e-form ACTIVE (INC-22A) by the Registrar:

(a) Companies which have been struck off

(b) A company under the process of striking off

(c) Company under liquidation

(d) Amalgamated or dissolved

Restricted Companies from filing the e-form ACTIVE (INC-22A) by the Registrar:

The Companies which has not filed with the Registrar, its:

  1. due financial statements under section 137 or
  2. due annual returns under section 92 or
  3. both(a) and (b)

Information required for filing the e-form ACTIVE (INC-22A):

  • Name of the Company and CIN
  • Registered Address of the Company
  • Two Photographs of the registered office of the company. The first photo of the registered office shall be taken from outside of the premises, whereas the second photo needs to be taken from within the registered office premises showing at least one director / KMP who shall be signing the e-form INC-22A.
  • Location of registered office on Map defining Latitude / Longitude
  • Email for OTP verification
  • Details of:
    1. Directors, DIN, and Status of DIN
    2. Statutory Auditor (PAN, Firm number, Period of Appointment, etc.)
    3. Cost Auditor (if applicable)
    4. Company Secretary (if applicable)
    5. CEO or Managing Director
    6. CFO (if applicable)
    7. SRN Number of AOC 4 / MGT 7 For FY 17-18

Consequences if the Company fails to file e-form ACTIVE (INC-22A):

If the Company fails to file e-form INC -22 A then it shall be marked as ‘ACTIVE non-compliant’ and shall not be eligible to file the following forms:

  • SH-07 (Change in Authorized Capital)
  • PAS-03 (Change in Paid-up Capital)
  • DIR-12 (Changes in Director except for cessation)
  • INC-22 (Change in Registered Office)
  • INC-28 (Amalgamation, de-merger)

However, the company shall be marked as 'ACTIVE Compliant' on the filing of e-form ACTIVE with a specified fee, also the ACTIVE non- Complaint Company can file Annual filing and charge related forms.

Filing of Form DIR-12 in case of Cessation of Director in an Inactive Company i.e. ACTIVE non- complaint Company:

Ministry of Corporate Affairs (MCA) has issued Companies (Incorporation) Eighth Amendment Rules, 2019 on 16th October 2019. As per Notification mentioned above, there is amendment in Rule 25A i.e. Active Company Tagging Identities and Verification (ACTIVE)

Rule 25A of Companies (Incorporation) Rules, 2014:

à https://www.mca.gov.in/Ministry/pdf/CompIncEighthAmndtRules_18102019.pdf

Prior to Amendment:

If a company failed to file e Form -ACTIVE, then such a company could not file Form DIR-12 except in case of cessation of Director.

Post Amendment:

After making the amendment in Rule 25A, Scope of filing of Form DIR 12 by ACTIVE-non-compliant company has been extended by adding the following cases in addition to the case of cessation of any director

  1. Appointment of directors in such company where the total number of directors are less than the minimum number provided in clause (a) of sub-' section (1) of section 149 on account of disqualification of all or any of the director under section 164.
  2. Appointment of any director in such a company where DINs of all or any it's director(s) have been deactivated.
  3. Appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal under the provisions of this Act or the Insolvency and Bankruptcy Code, 2016).

Conclusion:

If a company fails to file the ACTIVE form then the company shall not be able to file DIR-12 in any situation except in the above-specified cases.

Disclaimer:

The entire contents of this document have been developed based on relevant information and are purely for private circulation. Though the authors have made utmost efforts to provide authentic information, however, the authors expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and consequences of anything done or omitted to be done by any such person in reliance upon the contents of this document.

 

 

 

 

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