Annual Return- Section 92 of the Companies Act, 2013

Dear Members.

Section 92 of the Companies Act, 2013 corresponds to section 159, 161 and 162 of the Companies Act, 1956 and seeks to provide that every Company shall prepare an annual return containing certain particulars such as registered office, principal business activities, particulars of holding, subsidiary, joint venture and associate companies, its shares, debentures and other securities, members, promoters, Key managerial personnel along with changes therein, penalty or punishment imposed on the company, Directors, appeals made against such penalty or punishment details of shares held by or on behalf of Foreign Institutional Investors etc. The Annual return shall be signed by a director and a Company Secretary. Where there is no Company Secretary, the return shall be signed by the Company Secretary in whole time practice. In case of listed company or the Company having such paid up capital and turnover as may be prescribed, Annual Return shall be required to be certified by Company Secretary in practice in the prescribed form. Company Secretary in practice shall be punished if he/ she certifies otherwise than in conformity of this section or relevant rules.

Effective Date: 01-04-2014

Rule No.  11, 12 of The Companies (Management and Administration) Rules, 2014

Form No. MGT-7, MGT-8, MGT-9

Other sections referred: 403 of the Companies Act, 2013

Corresponding Section of the 1956 Act: 159, 160, 161, 162

New Form MGT-7 (Annual Return) & AOC-4 (Financial Statement) are available w.e.f. 25th September 2015 for filing with MCA.

Applicability of Section 92 of the Companies Act, 2013

Section 92 (1) Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding—

(a) its registered office, principal business activities, particulars of its holding, subsidiary and associate companies;

(b) its shares, debentures and other securities and shareholding pattern;

(c) its indebtedness;

(d) its members and debenture-holders along with changes therein since the close of the previous financial year; the close of the previous financial year; (f) meetings of members or a class thereof, Board and its various committees along with attendance details;

(g) remuneration of directors and key managerial personnel;

(h) penalty or punishment imposed on the company, its directors or officers and details of compounding of offences and appeals made against such penalty or punishment;

(i) matters relating to certification of compliances, disclosures as may be prescribed;

(j) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them; and

(k) such other matters as may be prescribed,

and signed by a director and the company secretary, or where there is no company secretary, by a company secretary in practice:

Provided that in relation to One Person Company and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.

(2) The annual return, filed by a listed company or, by a company having such paid-up capital and turnover as may be prescribed, shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act.

(3) An extract of the annual return in such form as may be prescribed shall form part of the Board’s report.

(4) Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed, within the time as specified, under section 403.

(5) If a company fails to file its annual return under sub-section (4), before the expiry of the period specified under section 403 with additional fee, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.

(6) If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made there under, he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

Applicability of Rule 11 of the Companies (Management and Administration) Rules, 2014

(1) Every company shall prepare its annual return in Form No. MGT.7.

(2) The annual return, filed by a listed company or a company having paid-up share capital of ten crore rupees or more or turnover of fifty crore rupees or more, shall be certified by a Company Secretary in practice and the certificate shall be in Form No. MGT.8.

Applicability of Rule 12 of the Companies (Management and Administration) Rules, 2014

(1) The extract of the annual return to be attached with the Board’s Report shall be in Form No. MGT.9.

(2) A copy of the annual return shall be filed with the Registrar with such fee as may be specified for the purpose.

Points to be noted on Annual Return

a. Every Listed Company or companies having paid up capital of Rs. 10 crore or more or turnover of Rs. 50 crore or more, Annual Return shall be mandatorily certified by Practising Company Secretary. The Certificate shall be made in Form MGT-8. The certificate is prepared in such a manner that it would itself a kind of Audit that needs to undertaken. (Rule No. 11(2) of the Companies (Management and Administration) Rules, 2014.

b. All types of Companies, whether having share capital or not have to comply with the requirement of filing of the Annual Return.

c. Where a Company Secretary in Practice certifies an Annul Return which is not in accordance with the requirement of this section and Rules made under the Act then he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

d. The Annual return is required to carry information upto the date of closure of financial year and not upto Annual General Meeting as under the Companies Act, 1956.

e. Under the Act, Annual Return is required to be signed by one Director instead of two as provided under the Companies Act, 1956 along with Company Secretary  and where there is no Company Secretary, by a Company Secretary in whole time practice. In case of One Person Company (OPC) or small Company, it shall be signed by a Company Secretary and where there is no Company Secretary, by one Director only.

With Best Regards..

Sudish Kumar Gupta

Managing Partner

Compliance Professionals, Law Firm

E-mail: info@cplaw.in

Website: www.cplaw.in