The Ministry of Corporate Affairs, in exercise of the powers under Section 611(2) and 637B (b) of the Companies Act, 1956 has decided to introduce a Scheme namely, “Company Law Settlement Scheme, 2011,” condoning the delay in filing documents with the Registrar, granting immunity from prosecution and charging additional fee of 25 percent of actual additional fee payable for filing belated documents under the Companies Act, 1956 and the rules made there under. The orders issued to this effect vide the ministry’s General Circular No. 59 of August 05, 2011 are in order to give an opportunity to the defaulting companies to enable them to make their default good by filing such belated documents and to become a regular compliant in future. This scheme is effective from today and will remain in force up to 31st Oct, 2011.
In this scheme
(i) unless the context otherwise requires, -
(a) "Act" means the Companies Act, 1956 (1 of 1956);
(b) "company" means a company registered under the Companies Act, 1956 and a foreign company falling under section 591 of the Act;
(c) "defaulting company” means a company registered under the Companies Act, 1956 and a foreign company falling under section 591 of the Act, which has made a default in filing of documents on the due date(s) specified under the Companies Act, 1956 and rules made there under;
(d) "designated authority" means the Registrar of Companies having jurisdiction over the registered office of the company.
(iii) Applicability: - Any “defaulting company” is permitted to file belated documents, which were due for filing till30.06.2011, in accordance with the provisions of this Scheme:
(iv) Manner of payment of fees and additional fee on filing belated document for seeking immunity under the Scheme - The defaulting company shall pay statutory filing fees as prescribed under the Companies Act and rules made there under along with an additional fee of 25 percent of the actual additional fee standardised under sub- section (2) of Section 611 of the Companies Act, 1956, payable on the date of filing of each belated document;
(v) Withdrawal of appeal against prosecution launched for the offences- If the defaulting company has filed any appeal against any notice issued or complaint filed before the competent court for violation of the provisions under the Act in respect of which application is made under this Scheme, the applicant shall before filing an application for issue of immunity certificate, withdraw the appeal and furnish the proof of such withdrawal along with the application;
(vi) Application for issue of immunity in respect of document(s) filed under the scheme - The application for seeking immunity in respect of belated documents filed under the Scheme may be made electronically in the Form annexed, after closure of Scheme and after the document(s) are taken on file, or on record or approved by the Registrar of Companies as the case may be, but not after the expiry of six months from the date of closure of the Scheme. There shall not be any fee payable on this Form;
(vii) Order by designated authority granting immunity from the penalty and prosecution - The designated authority shall consider the application and upon being satisfied shall grant the immunity certificate in respect of documents filed in the Scheme;
(viii) Scheme not to apply to certain documents –
(a) This Scheme shall not apply to the filing of documents other that following documents:-
Form 20 B - Form of filing annual return by a company having a share capital
Form 21 A – Particulars of annual return for the company not having share capital
Form 23AC & 23ACA – Form for filing Balance Sheet and Profit & Loss account
Form 66 - Form for submission of Compliance Certificate with the Registrar
(b) This Scheme shall not apply to companies against which action under sub-section (5) of section 560 of the Act has been initiated by the Registrar of Companies;
(ix) After granting the immunity, the Registrar concerned shall withdraw the prosecution(s) pending if any before the concerned Court(s);
At the conclusion of the Scheme, the Registrar shall take necessary action under the Companies Act, 1956 against the companies who have not availed this Scheme and are in default in filing of documents in a timely manner.
It may be noted that as per the observations a large number of companies are not filing their due statutory documents (i.e. Balance Sheets and Annual Returns) timely with the Registrar of Companies. Due to this, the records available in the electronic registry are not updated and thereby are not available to the stakeholders for inspection. Further, due to not filing the documents on time, companies are burdened with additional fee, facing the prosecutions and being debarred from filing other documents electronically as provided in Circular No. 33/2011 dated 01.06.2011 also.