13 May 2009
Procedure of Members Voluntary Winding-up Sr.No. Particulars 1. Hold Board Meeting within five weeks immediately preceding the date of resolution for winding up and make sure that the Company can pay its debts in full within a period of 3 years if put into liquidation and make a declaration in Form No.149 of the Companies Court Rules, 1959 and verified by an affidavit. And the said declaration is accompanied by: - The audited B/S and P& L A/c commencing from the date of last audited B/S and P&L A/c ending with the latest practicable date before the date of declaration. - A statement of the Company’s assets and liabilities as at that date; and - A copy of the report of the Auditors of the company on the above two documents.
2. Hold General Meeting and pass Ordinary Resolution if the winding up takes place as per the period or event prescribed in the AOA otherwise Special Resolution.
3. Body Corporate cannot be appointed as a Liquidator
4. Get the declaration duly verified by an affidavit before a judicial magistrate and deliver the same with the concerned ROC before the GM held for winding up.
4 The declaration to be filed electronically along with all other documents and file with the ROC in Form 62 before the general Meeting held for passing of the resolution for winding-up.
5. Form 149 along with form 62 should be send to the concerned ROC’s Office simultaneously with the e-filing.
6. Issue notice for general meeting at least 21days notice in writing proposing the resolution whether ordinary or special as the case may be along with explanatory statement.
7. Hold the GM and pass the required resolution for winding up.
8. Winding up commences from the time of passing the resolution
9. Forward promptly to the Stock Exchange with which the company is enlisted – 3 copies of notice and copy of the proceedings of the GM.
10. Within 10 days of passing the resolution – file notice in Form 152 with the ROC for the appointment of liquidator.
11. Submit to the liquidator a statement on the Company’s affairs in Form No.57 in duplicate verified by an affidavit in Form No.58 of the Companies Court Rules – within 21 days of the commencement of the winding-up.
12. File the OR or SR passed for winding up along with explanatory statement in Form 23 to the ROC.
13. Within 14 days of passing of the Resolution for winding up – give notice of the resolution by advertisement in the official gazette and also in some newspaper circulating in the district where the Regd. Office is situated.
14. Forward promptly to the SE with which your company is enlisted – 3 copies of the notice of the resolution advertised as above.
15. The liquidator has to file Form 152 for appointment with the ROC – published the same in the Official Gazette in Form No.151 of the said rules within 30 days of his appointment.
16. Liquidator should give notice of his appointment to the Income-Tax Officer of the Company within 30 day of his appointment.
17. If vacancy occurs by death, resignation or otherwise in the office of the liquidator – call a GM to fill-up the vacancy. Inform the concerned ROC of the vacancy and repeat the formalities as stated in point no.13,15 & 16 hereof.
18. If the liquidator has any time of the opinion that the company will not be able to pay its debts in full within the period stated in the declaration of solvency or the period of 3 years has expired without the debts having been paid in full – he has to summon forthwith a meeting of the creditors and has to lay before the meeting a statement of assets and liabilities of the Company in Form No.150 of the Companies Court Rules.
19. If the process of winding up continues for more than a year, call general meeting within three months from the end of every year from the date of commencement of winding up and lay before the meeting the liquidator’s account of his acts and dealings together with the statement in Form No.153 and duly verified in Form No.154.
20. The form No.153 & 154 should be filed with the ROC.
21. If winding up is not concluded within a year after its commencement – the liquidator shall file statements with the ROC twice in every year.
22. Get the first year’s statement audited for the full year, i.e., the period commencing from the date of appointment of the liquidator to the end of the twelve months from the end of the commencement of the winding up and thereafter subsequent statements every three months in Form No.153.
23. Get the aforesaid two statements verified in Form No.154 of the said Rules and file the same with the ROC within 2 months from the year end.
24. The auditors’ report will be in the form as agreed to between the Government and the Institute of Chartered Accountants of India, a copy of which may be had from the office of the concerned ROC.
25. Complete the winding up by realizing all assets and paying off all liabilities and returning share capital and surplus, if any.
26. The provisions of Section 426 to 432, 452, 487, 491, 511, 511A, 512, 514, 515, 517 to 520, 528 to 549 and 553 to 556 and those of Rules from No.124 to 134 and Nos. 312 to 361 of the Companies Court rules, 1959 – should also be noted.
27. Notice convening final general meeting in Form No.155 of the Companies Court Rules, 1959 by advertisement to be given not less than one month before the meeting in the Official gazette and also in some newspaper circulating in the district where the registered office of the company situate.
28. Pass also the SR for disposal of the books and papers of the Company when the affairs of the Company are completely wound-up and it is about to be dissolved.
29. Within a week of the final meeting, file the copy of the above account with the concerned ROC as well as with the Official Liquidator and file a return to each of them in Form No.157 of the Companies Court Rules.
30. If a quorum is not present, in the aforesaid meeting – file the return in Form No.158 of the Rules.
31. The ROC on receiving the account and either the return mentioned in 497(3) or the return mentioned in 497(4) shall forthwith register them.
32. The Official Liquidator on receiving the accounts of return – it is the duty of the liquidator and all officers of the company past or present, shall give the Official Liquidator all reasonable facilities to do so, a scrutiny of books and papers of the Company.
33. If on such scrutiny the Official Liquidator makes a report to the concerned High Court that the affairs of the Company have not been conducted in a manner prejudicial to the interest of its members or to the public interest, then, from the date of the submission of the report to the concerned High Court, the Company shall be deemed to be dissolved.
34. If on such scrutiny the Official Liquidator makes a report to the Court that the affairs of the Company have been conducted in a manner prejudicial, as aforesaid, the concerned High Court shall by order direct the Official Liquidator to make further investigation of the affairs of the Company and for the purpose shall invest him with all such powers as the concerned High Court may deem fit.
35. On receipt of the report of the Official Liquidator on such further investigation, the concerned High Court may either make an order that the Company shall stand dissolved with effect from the date to be specified by the concerned High Court therein or make such other order as the circumstances of the case brought out in the report permit.
36. File the SR mentioned in item No.28 along with the explanatory statement.
37. The concerned High Court may in a fit case declare the dissolution void within two years of the date of the dissolution on application by the Liquidator of the Company or by any other person who appears to the Court to be interested.
38. The Form 21 along with the Court’s order should be filed with the ROC.
39. The original certified true copy of the Court’s order is also submitted at the concerned ROC Office simultaneously of filing with the ROC.
CAclubindia
