March 27

183 section of Companies Act, 2013 notified.

The mca has notified 183 sections of New companies Act, 2013.

The legislation is spread across 29 chapters, seven schedules and 470 sections.

With the latest notification, main requirements of the new company law related to incorporation, management, board functioning accounts and audit, would be operational from April 1.

The notification of the mca is available at Notification dt 26 March2014

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February 13

AFFIDAVIT

I, _______________________________ age years, occupation – service, resident of do hereby declare and state on solemn affirmation as follows :
1. That I do not own any residential house or house site or plot in my name or in the name of any member of my family.
2. That neither I am nor any other member of my family is a member of any cooperative housing society.
3. That I am making this affidavit as I have purchased a residential flat in the Aum Cooperative Housing Society Limited, at Plot No.
4. That I am also making this affidavit in order to confirm these facts to be submitted to the registering authority of the societies.

DEPONENT

VERIFICATION

I, ________the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at _______this ______day of ______

DEPONENT

Date:
Place:

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October 2

Liability of directors with respect to Annual Accounts

The companies Act provides a range of obligations to be discharged by every company registered under this act and also on the part of its Directors / Managers / Secretaries, etc. The law relating to penalties and criminal liabilities arising from noncompliance with respect to Annual Accounts are enlisted below:

Officer in default: Section 2(31) of the Companies Act, 1956 defines an officer in default in the following terms “in relation to provision referred to section 5, has the meaning specified in that section.” Section 5 of the Companies Act, 1956 defines officer in default as including all the following officers of the company including the managing director or managing directors, the whole-time director or whole time directors, the manager, the secretary, any person charged by the board with the responsibility of complying with that provision, where no officer mentioned above is specified all the directors.

Section 2(60)[1]of the Companies Act, 2013 ,defines an officer in default for the provisions of the act as any officer who is in default namely whole time director, key managerial personnel, where there is no key managerial personnel, such director or directors specified by board, any person charged with the responsibility by the board , any person with whose advice board of director is accustomed to act, every director who has knowledge of contravention and in respect of share issue, transfer the share transfer agents, registrars and merchant bankers.

1) Default in laying down accounts at AGM:

Under the Companies Act, 1956, Section 210(5) lays down that the board of directors of the company shall lay down the balance sheet and profit and loss at the annual general meeting. If the person being a director of a company fails to take reasonable steps to comply with the provisions of the section, he shall in respect of each offence be punishable with imprisonment for a term which may extent to six months or fine which may extend to ten thousand Rupees or with both.

Under the companies act, 2013, Section 129 (7) [2]lays down that if the company makes a contravention of the section that deals with preparing of financial statements and laying down the financial statement at the AGM , the managing director, the whole time director in charge of finance, the Chief Financial Officer, or any other person charged by the Board with the duty of complying with the requirements of this section and in absence of any of the officers mentioned above all the directors shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than fifty thousand rupees which may extend to five lakh rupees or with both .

2) Failure to file Annual Accounts with MCA:

Section 220 of the Companies Act, 1956 lays down that that after the Balance Sheet and Profit and Loss have been laid at the AGM the Profit and Loss and Balance Sheet duly signed the managing director, manager or secretary of the company or if there be none of these, by a director of the company has to be file with the registrar within 30 days from the date of AGM. If any default is made in complying with the provisions of this section the punishment for the default is penalty of Rs. 500 till the default continues.

Section 137(3)[3]of the Companies Act, 2013 provides that if a company fails to file financial statements before the expiry of time provided in Section 403, the penalty imposed is Rs. 1000 for every day of default but this amount shall not be more than 10 lakh rupees and in the absence of managing director, chief financial officer and in the absence of the managing director and chief financial officer and in the absence of above any director who is charged with the responsibility shall be punishable with imprisonment for a term which may extend to six months or fine which shall not be less than one lakh rupees but which may extend to a five lakh rupees or both .

3) Improper issue, circulation or publication of Balance sheet and Profit and loss Account:

Section 218 of the Companies Act, 1956 states that is any copy of balance sheet and profit and loss which has not been signed and issued, circulated or published or if any balance sheet is issued circulated and published without attachments such as profit and loss, any accounts, statements, auditor’s report , directors report the company and every officer in default shall be punishable with fine which may extent to 5000 Rupees.

Section 134[4]of the Companies Act, 2013 states that the financial statement including the consolidated financial statement shall be approved by the board of directors before they are signed on behalf of the board . The auditor’s and Director’s Report as required by the section shall be attached .The signed copy of every financial statement including consolidated financial statement if any shall be issued, circulated or published. If there is any contravention of this section the company shall be punishable with fine that shall not be less than 50 thousand Rupees but may extend to 25 Lakh Rupees and every officer who is in default shall be punishable with imprisonment for a term which may extend to 3 years or fine which shall not be less than 50 thousand Rupees but may extent to 5 Lakh Rupees or both.

4 ) Failure to comply with provisions of Annual Return :

Section 162 of the Companies Act, 1956 states that the non compliance of Section 159(form of annual return for a company having a share capital ), 160 (form of annual return for a company not having share capital ), 161 (Annual return to be signed by both a directory and secretary and to be filed with the registrar )with respect to Annual Return will attract a fine of Rs. 5000 which has to be paid by the company

Section 92 [5]of the Companies Act, 2013 lays down that a company who fails to file its annual return within a the period so allowed by section 403 with additional fee shall shall be punishable with fine that shall not be less than 50 thousand Rupees but may extend to 25 Lakh Rupees and every officer who is in default shall be punishable with imprisonment for a term which may extend to 6 months or fine which shall not be less than 50 thousand Rupees but may extent to 5 Lakh Rupees or both .

5) Failure to send the Annual Accounts to members:

Section 219(1) of the Companies Act, 1956 lays down that the Annual accounts should be sent atleast 21 days before the Annual General Meeting. Section 219 (3), furthermore states that any default in complying with this requirement would attact a fine of Rs. 5000 by the company and any every officer in default. Section 219(4) lays down that if any member makes a demand of annual account and the same is not provided to him the company and every officer in default would attract a fine of Rs. 5000.

Section 136[6]of the Companies Act, 2013 also lays down the same requirement but the penalty which the company is subject to Rupees 25 thousand and every officer in default is subject to a penalty of 5000 Rupees.

Summing up, criminal liability is only attracted in the following cases with respect to Annual Accounts

a) Default in laying down accounts at AGM: Criminal Liability under both Old and new act

b) Failure to file Annual Accounts with MCA: Criminal Liability Only under new act

c) Improper issue, circulation or publication of Balance sheet and Profit and loss Account: Criminal Liability Only under new act

d) Failure to comply with provisions of Annual Return: Criminal Liability Only under new act

[1] In force, by notification dt . 12.09.2013

[2] Not in force

[3] Not in force

[4] Not in force

[5] Not in force

[6] Not in force

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September 30

Change in authorized capital – a comparison between companies Act 1956 and Companies Act, 2013

Increase in the authorized capital under Companies Act, 1956: The provisions regarding increase of share capital are found in section 94(1) r/w Section 16, 31 and section 97 of the Companies Act, 1956.

Section 94 (1) of the act states that a limited company having a share capital, if so authorized by its articles , alter the conditions of its memorandum to increase its share capital by such amount as it thinks expedient by issuing new shares.

Furthermore section 31 of the act states that the articles of company can be altered by a special resolution if so allowed by the memorandum of the company and section 16(3) states that the memorandum of articles can be altered by the same procedure as provided for altering of articles if the procedure for same is not provided in the section.

In addition to this section 97 states that when the capital is increased a notice of the same has to be given to the registrar within 30 days of passing of the resolution (Form 5).

Procedure:

Meetings to be held:

A board meeting is to be convened to discuss the agenda and fix general meeting date for passing special resolution of shareholders.
Convene general meeting and pass Special resolution for alteration of MOA or AOA and increase of share capital.

Alteration in MOA and AOA:

If the Memorandum of Association (MOA) and the Articles of Association (AOA) contain a clause regarding the share capital they have to altered by filing E-Form 23 with an explanatory statement within 30 days of passing the resolution. (Section 192- Registration of Resolution)

Forms to be filed with Ministry of Corporate Affairs:

Form 5 has to be filed with ROC (Registrar of Companies) within 30 days and accordingly the Registrar of Companies will make necessary changes in the Company’s Memorandum & Articles of Association. (Section 97)

Increase in authorized capital under the Companies Act, 2013: The increase in authorized capital under companies Act, 2013 has been dealt under section 61 and section 64 R/W sections 13 and section 14

Section 13 and section 14 are regarding alteration of memorandum and articles by passing a special resolution. Section 61 states that a limited company having its share capital may if so authorized by its articles alter its memorandum in its general meeting to increase its authorized share capital by such amount as it thinks expedient. Section 64 states that when the authorized capital is increased the notice of the same should be given to the registrar in 30 days of such alteration or increase.

Changes: All the requirements are same except the following:

Notice to the registrar: According to the old act the notice to the registrar should be within 30 days after passing of the resolution whereas under the Companies Act the notice to the registrar has to be given in 30 days after such alteration or increase.

Penalty for not reporting to the Registrar : The penalty under the old act for not reporting about the change of capital to the registrar was Rs. 500 per day till the default continues but under the Companies Act, 2013 the penalty shall not be less than Rs. 1000 per day till default continues or Rs. 5,00,000 whichever is less .

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