Page 41 - Corporate_Professional_Today

CondonATion of delAy SCheme 2018 – neW yeAr GifT To STruCk off ComPAnieS by roC
u Form Number 20B/MGT-7 - for filing
Annual Return by company having
share capital.
u Form Number 21A/MGT-7- Particulars
of Annual return for the company not
having share capital.
u Form Numbers 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.
u Form 66 - Form for submission of Com-
pliance Certificate with the Registrar.
u Form 23B/ADT-1- Form for intimation
on Appointment of Auditors.
4.6 Para 6 lays down instructions for the
ROCs to withdraw prosecution(s) pending,
if any, before concerned Courts w.r.t. matter
relating to the above documents. However, it
has been clarified that action under section
167(2) for civil or criminal liabilities against
such disqualified directors for period during
which they remained disqualified shall continue
to apply. Provisions of section 167(2) hold the
directors liable for their acts which they have
done in the capacity of being directors during
the period during which they were disqualified
and were aware of such disqualification.
Hence, immunity is only being granted vide
this Scheme w.r.t. actions against offence of
non-filing of overdue documents.
4.7 Para 7 authorises the ROCs to take all
such actions as may be necessary under the
provisions of the Companies Act, 2013/1956,
against all such companies who continue to
be in default after the expiry of this Scheme.
That is to say, that companies, if do not file
overdue documents under this Scheme also
shall be liable to be prosecuted by ROCs.
4.8 Para 8 specifies the date February 20, 2018
as the date from which e-Form CODS shall
be available for filing. However, companies
shall start filing their documents from the
1st day of January 2018 itself to complete
148 January 20 To January 26, 2018 u Taxmann’s Corporate Professionals Today u Vol. 41 u 42
filing of overdue documents. The date upto
which e-Form CODS 2018 shall be allowed to
be filed is not mentioned in the Scheme but
from the overall reading of the Scheme the
same appears to be filed within the validity
period, i.e., upto March 31, 2018.
5. E-Form CODS 2018 specifically asks for
the SRNs of the overdue documents filed
during the period of this Scheme along with
declaration and evidence of withdrawal of
application from courts/tribunals filed w.r.t. the
overdue documents. The e-Form additionally
also seeks details of economic cases on the
directors or cases in which directors have
been declared as proclaimed offenders.
5.1 Analysis - Ordinarily, the Scheme does
not touch upon the aspect of removal of
director disqualification but upon carefully
observing the e-Form CODS 2018, it can be
seen that an indirect reference has been made
to this aspect. Details related to the cases on
directors have been sought by MCA along
with proof of withdrawal of application from
courts/tribunals w.r.t. the overdue documents
which means that MCA has something in the
backyard w.r.t. directors also. Details sought
w.r.t. economic offences primarily show the
intent of MCA, not to allow filings of overdue
documents from directors which are either
involved in economic offences or are declared
as proclaimed offenders. Further, the proof
related to withdrawal of application w.r.t.
overdue documents is done with an aim
to reduce the burden of cases filed due to
such non-filing matters with different forums
across the country. Para 6 of the Scheme
provides immunity to directors from the
actions of the ROCs due to non-filing, so
it is quite reasonable that once immunity is
being granted, there is no reason as to why
such directors should also peruse application
before courts on the same matter.
Impact of CODS-2018
6. This step has sent an alarming message to
those promoters subscribers who have been
grinded in the wave of wiping off the shell