MCA gives one-time opportunity to disqualified directors to file Overdue Documents in Defaulting Companies

MCA in September 2017 had identified 3,09,614 directors associated with the companies that had failed to file financial statements or annual returns in the MCA21 online registry for a continuous period of three financial years 2013-14 to 2015-16 in terms of provisions of section 164(2) r /w 167(1)(a) of the Act and they were barred from accessing the online registry and a list of such directors was published on the website of MCA. As per list published on MCA, these directors were disqualified for a period of 5 years and their respective DIN was disabled.

As a result, there have been a spate of representations from industry, defaulting companies and their directors seeking an opportunity for the defaulting companies to become compliant and normalise operation. Considering the various request and representation made by the various stakeholders, MCA has issued General Circular No.16/2017, Condonation of Delay Scheme, 2018 (COD Scheme), with a view to giving an opportunity for the non-compliant, defaulting companies to rectify the default, in exercise of its powers conferred under sections 403, 459 and 460 of the Companies Act, 2013.

A.    Important points of COD Scheme

1.      Who can avail the benefit of COD Scheme?

As per MCA circular only Defaulting Company can take the benefit of COD Scheme. Whereas Companies which are struck off already under Section 248 cannot avail the benefit of the Scheme.

2.      Which companies will fall under the Defaulting Company criteria?

A company which has not filed its financial statements or annual returns as required under the Companies Act, 1956 or Companies Act, 2013, as the case may be, and the Rules made thereunder for a continuous period of Three years

3.      What all Documents/Forms (Overdue Documents) Defaulting Company can file under the Scheme?

The financial statements or the annual returns or other associated documents, as applicable, in the case of a defaulting company and refer to documents mentioned below:

Sr. No.	Name of Form (under Companies Act, 1956 or Companies Act, 2013)	Purpose
1	Form 20B or Form MGT-7	Annual Return by Company having Share Capital
2	Form 21A or Form MGT-7	Particulars of Annual return Annual return by a for the company not having share capital
3	Form 23AC, 23ACA, 23AC-XBRL, 23ACA-XBRL, AOC-4, AOC-4(CFS), AOC (XBRL) and AOC-4(non-XBRL	Forms for filing Balance Sheet/ Financial Statement and profit and loss account
4	Form 66	Form for submission of Compliance Certificate with the Registrar
5	Form 238/ADT-1	Form for intimation for Appointment of Auditors

B.    Validity of Scheme

The scheme shall come into force with effect from January 01, 2018 and shall remain in force up to March 31, 2018

C.     Applicability of the Scheme:

This scheme is applicable to all defaulting companies (other than the companies which have been stuck off/ whose names have been removed from the register of companies under section 248(5) of the Act). A defaulting Company is permitted to file its overdue documents which were due for filing till June 30, 2017 in accordance with the provisions of this Scheme.

D.    Procedure for removal of default

Step 1: Activation of DIN

The DINs of the concerned disqualified directors de-activated at present, shall be temporarily activated during the validity of the scheme to enable them to file the overdue documents.

Step 2: Filing of Overdue Documents (Pending ROC Forms)

The defaulting company shall file the overdue documents in the respective prescribed eForms paying the statutory filing fee and additional fee payable as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014 for filing these overdue documents.

Step 3: Application seeking condonation of delay under form e-CODS

The defaulting company after filing documents under this scheme, shall seek condonation of delay by filing form e-CODS attached to the scheme online on the MCA21 portal. The fee for filing application eform CODS is Rs.30,000/- (Rs. Thirty Thousand only).

On approval of Form eCODS the Registrar concerned will withdraw the prosecution(s) pending, if any before the concerned Court(s) for all documents filed under the scheme.

However, this scheme is without prejudice to action under section 167(2) of the Act or civil and criminal liabilities, if any, of such disqualified directors during the period they remained disqualified.

E.     Effect of Non-Availing Scheme

The DINs of the Directors associated with the defaulting companies that have not filed their overdue documents and the e-Form CODS, and these are not taken on record in the MCA21 registry and are still found to be disqualified on the conclusion of the scheme in terms of section 164(2)(1) r/w 167(1)(a) of the Act shall be liable to be deactivated on expiry of the scheme period.

F.     Cases where the Companies are struck off by ROC under Section 248:

In the event of defaulting companies whose names have been removed from the register of companies under section 248 of the Act and which have filed applications for revival under section 252 of the Act up to the date of this scheme, the Director's DIN shall be re-activated only after NCLT order of revival subject to the company having filed of all overdue documents

G.    ROC to Take Action

At the conclusion of the Scheme, the Registrar shall take al1 necessary actions under the Companies Act, 1956 / 2013 against the companies who have not availed themselves of this Scheme and continue to be in default in filing the overdue documents

H.    Total cost for Filing of Overdue Documents under Scheme:

Sr. No.	Type of Form	Amount
1	Overdue Documents like Form AOC 4, Form MGT-7 etc	Normal Fees plus Twelve times of Additional Fees for each Form [as per section 403 of the Act read with Companies (Registration Offices and fee) Rules, 2014]
2	e-Form CODS – 2018	Rs. 30,000

Note: Unlike previous years CLSS or Company Law Settlement Scheme, this time MCA has not given any discount or concession on payment of Additional Fees on delayed or Overdue Documents.

I.      Other point: Availability of eForm CODS, 2018

As per COD Scheme dated December 29, 2017, the e-Form CODS 2018 would be available from 20.02.2018 or an alternate date as may be announced by MCA.

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