Challenges faced by CS in Annual Return filing

It is a well-known fact that ‘annual filing fever’ grips all CS (Company Secretary) offices during October & November after corporates hold their AGMs and due dates are triggered for filing of audited financial statements and annual return. However this year, filing has reached a ‘feverish’ pace and pitch thanks to the late release of e-forms under the new Companies Act, 2013 and also repeated revisions of the same. This has thrown several challenges at CS offices as well as corporates struggling to understand and fill the information correctly. Let’s look at some of the challenges related to preparation and e-filing of Annual Return (AR) of an unlisted Company for the FY14-15:

1. There is extract of AR in MGT9 which is made part of the Board’s Report (new requirement under the Companies Act, 2013) and then there is MGT7 which is the full-length AR in e-version. MGT7 was released only in end September, 2015 and kept evolving like the ‘amoeba’ till it reached its current ‘avatar’ on 17th Nov, 2015. Needless to say the information CSs gathered for MGT9 earlier is not exactly the same as in MGT7. Wonder how MGT9 qualifies as an ‘extract of AR in MGT7’? Surely, there was enough time since 2014 to align the two and save the corporates and professionals from interpretation and information-gathering about the same subject multiple times and from multiple perspectives! Hoping this is ironed out for the FY15-16 annual filing.

2. Corporates are irked that CSs are going back time and again asking them to classify their business activity %-wise under 2 different codes - NIC2008 for Annual Return (both MGT7 and MGT9) and NCPS (National Classification of Products & Services) or ITC-HS (Indian Trade Classification – Harmonized System) for classification in AOC4 (filing of audited financial statements). This information is not available in the audited financials and its schedules. Most of the companies are unable to find the correct classification and hence it is only the ‘almost there’ or ‘nearest’ code. Once the broad level classification is filled in MGT7, the auto-fill description popping up reflects an unrelated activity sending the CSs into a tizzy resulting in a gtalk/WhatsApp/phone ‘ask around’ activity. Lack of clarity is the biggest hurdle resulting in different interpretations. We cannot risk being wrong given that CSs are either signing the form or certifying as in the case of MGT8 (for certain category of companies).

3. In the initial version of MGT7, details of share capital break-up was under Promoter and Public category. Since public holding is normally relevant for public limited companies, many professionals missed filling in share capital belonging to nonpromoters in the case of unlisted private limited companies. There was confusion whether it was right for them to fill it under ‘public’ category or not. After umpteen representations, queries, webinars, FAQs etc., now this has been clarified by amending the form to read as ‘Break up of share capital – Promoter and Non-promoter holding’.

4. Similarly Loan in MGT9 clearly meant ‘including interest accrued but not due’, while in MGT7initial version, it simply read Loan. This has now been expanded to read as ‘Loan including interest accrued but not due’ which aligns both the forms. As it is, information to this depth - of interest accrued, accrued but not due etc. is not available to CSs from the financial statements and we need to go back to the client to ask for the same, delaying the whole process. Simply put, unless the CS is fully prepared with a thorough checklist it is not possible to prepare the AR. Tragedy is there was little time for us to come up with a checklist that would stand since the e-form itself has been evolving. Many a times a form filled up today would be no good for tomorrow simply because there was a revision. A colossal waste of time and energy in redoing it.

5. Another area is shareholding in the first version was classified as Indian and Foreign. A doubt arose whether it includes Preference share capital. It is now changed to Equity and Preference but there is no place to show the break-up of Indian and foreign shareholding by bodies corporate. Correcting one anomaly has now resulted in another calling for yet another revision in MGT7!

6. What is the meaning of number of meetings a director is entitled to attend? Does it include alternate directors also? What are the meetings they are entitled to attend? Seemingly simple information but can be interpreted in several ways.

7. Disclosure of remuneration of Directors & KMP – different stand taken by different professionals. While some say this need not be disclosed for unlisted companies, some are of the view that whether listed or unlisted, if a company has MD/WTD/Manager etc., whether appointed as Director / KMP u/s 203 of the Act or not remuneration details must be disclosed. Many corporates are touchy about disclosing details of managerial remuneration but they fail to understand that this information is in any case available in the Schedule to audited Balance Sheet, albeit to a lesser degree of disclosure.

8. Compliance and punishments under other Acts - how do we know this? Difficult to ascertain because generally, scope of work of a PCS (Practicing Company Secretary) does not extend to other enactments and this is a new requirement. There is no disclosure about such non-compliance and penalties in the financial statements also. How are we to sign that the information is correct unless we verify? These are but a few grey areas and challenges faced by a CS in the Annual Return filing this year. The penalties on CSs are significant for wrong information filled in. Therefore it may help to take the following steps:

- Study the e-form completely and prepare a checklist of information required and begin only when full data is available. At least for the next season’s filing better clarity may be available.

- Do send the filled up form to client for their confirmation.

- Wherever required, insist on a Management Representation letter. Currently several disclosures are subject to interpretations and corporates are not sharing certain information based on advice received from other experts or internal decisions.

- Check all original records before signing the form, considering that as a CS, one is declaring to that effect as well as to correctness and completeness. For certification in MGT8, in any case a mini-audit has to be conducted.