Ravi Kiran Vustela
(Knowledge Seeker)
(1353 Points)
Replied 18 March 2017
Jaikishan V. Wadhwani
(Company Secretary)
(154 Points)
Replied 18 March 2017
Yes , as per Companies Act 2013 provision if any Director not file Annual Return Continous 3 or more Financial Year then he is declared As disqualifided and not Eligible for appoint or Reappoint in that company And Any other company For period of the 5 year after such disqualification
Jatin Bajaj
(CS)
(2928 Points)
Replied 18 March 2017
As per section 164 of the companies act 2013 , Read with Appointment and qualification od directors rules 2014, if the company who has not filed the financial ststements or annual returns for any period of 3 contionus financial year , then director shall not be eligible to be re-appointed as a director of that company or director of any other companies for a period of 5 years or more from the date on which company fails to do so.
REMEDY AVAILABLE
WHERE THE COMPANY FAILS TO FILE SUCH FINANCIAL STATEMENT OR ANNUAL RETURN AS PER THE PROVISON OF SECTION 164(2), THE COMPANY SHALL IMMEDIATELY FILE FORM DIR 9 FURNISHING THE DETAILS TO REGISTRAR INCLUDING THEIR NAMES , ADDRESS OF THE RELEVANT FINANCIAL YEAR .
BUT IF COMPANY FAILS TO FILE FORM DIR 9 WITHIN THE PERIOD OF 30 DAYS OF THE FAILURE THAT WOULD ATTRACT DISQUALIFICATION.
AN APPLICATION FOR REMOVAL OF DISQUALIFICATION SHALL BE MADE IN DIR 10
P C Agrawal
(Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad)
(8229 Points)
Replied 18 March 2017
The director is not disqualified. First of all, Section 164 has been notified from 1.4.2014 only and hence it cannot have retrospective effect (for financial statements for 2013-14). There are court judgements on this. Secondly, even if it is assumed that it will have retrospective effect, disqualification will start from the due date of filing financial statement. Assuming that for 2013-14 AGM was held in September 2014, due date for filing B/S and A/R was in Oct/Nov 2014 without additional fee and further 270 days allowed with late fee. Co. had filed documents in Martch 2017 and hence there is no disqualification for directors.
MANOJ A
(Passion)
(52 Points)
Replied 21 March 2017
Hi Sir ,
From your reply ,I understood that If the company filed the financial returns with additional fee then the company is not in default .Is it correct Sir .
Lets take an example :
The director of defaulting company is going to be re-appointed on 30/09/2017 . We have to check whether on that date the company has filed its financial and annual returns for past 3 years for qualifiaction . Is it correct Sir ?
MANOJ A
(Passion)
(52 Points)
Replied 21 March 2017
Hi jatin ,
please clarify the following with any example frnd.
" IMMEDIATELY FILE FORM DIR 9 FURNISHING THE DETAILS TO REGISTRAR INCLUDING THEIR NAMES , ADDRESS OF THE RELEVANT FINANCIAL YEAR " due date of DIR 9.
Due date of DIR 10 .
Jatin Bajaj
(CS)
(2928 Points)
Replied 21 March 2017
For example : due date of filing MGT 7 & AOC 4 FOR THE FINANCIAL YEAR 2015-2016 IS 30TH NOVEMBER 2016. AND THE COMPANY HAS NOT FILED THE ANNUAL RETURN FROM THE PAST 3 YEARS INCLUDING THIS YEAR , THEN COMPANY SHALL FILE DIR 9 WITHIN 30 DAYS , I.E. BY 30TH DECEMEBR 2016 INTIMATING THAT DIRECTORS HAS BECOME DISQUALIFIED AS PER PROVISION OF SECTION 164(2) OF THE COMPANIES ACT 2013& DIR 9 SHALL BE SENT AS AN ATTACHMENT WITH FORM GNL 2.
UPON RECEIPT OF DIR 9 , THE REGISTRAR SHALL REGISTER THE DOCUMENT AND SHALL ACKNOWLEDGE THE SAME.
AND AFTER THE INTIMATION BY REGISTRAR AN APPLICATION FOR REMOVAL OF DIRECTOR SHALL BE MAD IN FORM DIR 10
MANOJ A
(Passion)
(52 Points)
Replied 22 March 2017
Thanks for clarification Jatin.
As per section 164 of the companies act 2013 , Read with Appointment and qualification of directors rules 2014, if the company who has NOT FILED the financial ststements or annual returns for any period of 3 contionus financial year , then director shall be disqualified.
Coming to this case , we have filed the AOC-4 and MGT-7 for 3 years in last week. When we are filing AOC-4/MGT for 2016-17 on or before 30/11/2017 directors wont be disqualified right ?.
or The Late filing of Returns itself is default for disqualification.?
P C Agrawal
(Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad)
(8229 Points)
Replied 22 March 2017
Section 403 allows additional 270 days for filing documents with late fee. Hence if annual return is filed within 330 days (60+270) of AGM, there is no no default and and penal provisions will not apply. Similarly, financial statements can be filed within 300 days (30+270) from AGM.
In the given case financial statements for 2015-16 were filed in March 2017 which is within prescribed period and hence Sec.164(2) will not apply. "Failed to file" implies "failed to file within the prescribed period". On 1.4.2016 one cannot say that you have failed to file statements for 2015-16.
Shailendra Chouhan
(trainee)
(24 Points)
Replied 24 September 2017
To Shri. P.C. Agrawal
Sir, As per your statement, the director is not disqualified.
Compliance related filing is complete and upto date ( filing belated for FY 13-14, 14-15 & 15-16). But DIN numbers have been disabled & directors are disqualified, (notified on 22.09.2017) despite completed filing earlier in Aug2017.
This is despite ROC’s stated position: - If the Company has filed the due returns and makes good the default, the directors of such Company are not disqualified. (As responded to ICSI - Institute of Company Secretaries of India)
Read point no. 10 of the Q&A session transcriptttt published by ICSI, Banglore chapter. (Doc attached)
Legally the disqulification takes effect on 22.09.2017,which is the date of notification on MCA, where as the filing is already comple in August 2017.
As on 22.09.2017 the filing was complete, MCA should not have notified disqualification for this client.
ROC is cutting/pasting lists from left,right & center. Very unfair. I know many who are facing a similar problem.
How to get remedy? Is filing form DIR-10 the solution? How do I file this form? Is there any other way to approach the problem?
Dont you think, our intitutions ICSI, ICAI should take up this matter with MCA, as well as Ministry of Corp affairs and Finance minister?
Please respond.
Shailendra
ShellyChouhan @ Outlook.com
9988335373
Shailendra Chouhan
(trainee)
(24 Points)
Replied 24 September 2017
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