Sec 220 & 160 of companies act

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RAM LAL (Querist)
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10 August 2013 Dear Frnds,

Companies F Y ends 31.03.2012
Balance Sheet Prepared : 20.12.2012
IT Return filed : 05/01/2013

The Company is willing to File ROC Returns. What will be Next Step to file ROC Return.
As Balance Sheet did not Prepared on time. Non Compliance of the Act. What Will be Remedy or Action Point ?

Suggest me any other way to file ROC Return.

Thanks & Regards,
Ram

Ajay Mishra

Ajay Mishra (Expert)
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11 August 2013 Hi

If an annual general meeting of a company is not held even then the balance sheet and profit and loss account, etc., shall be filed with the Registrar as an attachment to e-Form 23AC and 23ACA, within thirty
days from the latest day on or before which the annual general meeting should have been held in accordance with the provisions of section 166.

Then you will hold your AGM before 30.09.2012, whether the Balance sheet is prepared or not. The filing of annual forms with ROC arise from the date of AGM, so AGM is must.

Ajay Mishra

Ajay Mishra (Expert)
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11 August 2013 If the annual general meeting of a company before which a balance sheet is laid as aforesaid does not adopt the balance sheet, or is adjourned without adopting the balance sheet or, if the annual general meeting of a company for any year has not been held, a statement of that fact and of the reasons therefore shall be annexed to the balance sheet and profit and loss account required to be filed with the Registrar electronically in e-Form 23AC and 3-Form 23ACA— Section 220(2).

It has been clarified by the Department that the balance sheets and profit and loss accounts which are not laid before an Annual General Meeting of the company but submitted to Registrar of Companies, for
filing under section 220 of the Act would not be taken on record. The question of launching prosecution in such cases would be considered. [Vide Circular No. 4/74, dated 22-2-1974]

Ajay Mishra

Ajay Mishra (Expert)
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11 August 2013 Penalty for non-compliance of section 220:

If default is made in complying with section 220(1) and (2), the company, and every officer of the company who is in default, shall be punishable with fine, which may extend to five hundred rupees for every day during which the default continues. [Section 220(3)]

It has been held in the case of Ravindra Narayan v Registrar of Companies (1994) 2 SCL 281 (Raj), that where there is a managing director of company, other directors cannot be held to be falling within the
expression 'officer who is in default' in section 5 and cannot be held liable for default in complying with requirements of sub-sections (1) and (2) of section 220.

Where directors failed to file balance sheet and profit and loss accounts despite notice, it was decided that any director of the company who is knowingly guilty of the default would be an 'officer in default' under section 5 read with section 2(30). [Bachrenj Baid v State of West Bengal Case No. 809 (Kol) 92].

In the case of Alim Ahuja and Another v Registrar of Companies (2006) 129 Comp Cas 104 (Raj), the Registrar of Companies sent notices to the directors calling upon them to show cause as to why action should not be taken for their prosecution for contravention of section 159/160/162/220 and as to why they should not be prosecuted under Section 210(5) of the Act, for the default in complying with section 210(3) of the Act. On receipt of these notices, the petitioners filed application to High Court for grant of relief under section 633 of the Act instead of showing cause to the ROC praying that they were not active directors of the company and are being not connected with the management of the company.

The Court held that that the plaintiffs have voluntarily continued as directors of the company. The Board of Directors has never resolved to exempt them from their responsibility and duty as directors to comply with the provisions of the Act. It is hardly of any substance that petitioners are senior citizens. They had accepted the directorship voluntarily and presumed to have known of their responsibility, obligation, liability and duty under the Act.
It was further held that rather than approach to this Court at this stage they should have placed their cases for consideration before the respondent but that has not been done. That apart the notices have been given only for launching the prosecution against the petitioners and in their prosecution they can take all these defences and where they are able to prove the same the Court may not punish them for violation of provisions of the Act.

RAM LAL

RAM LAL (Querist)
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12 August 2013 Dear Sir,

Issue is that we did not prepare Balance Sheet within 6 month from F Y ends.and did not apply for extention of AGM etc.

Now, we Prepared Balance sheet as on 20.12.2012, What will be further step to file ROC Returns i.e. Form 20B, 23AC & ACA.

Thanks in Advance

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