DEFAULTING COMPANIES ARE DEBARRED FROM FILING WITH MCA - A SERIOUS CALL

[CS DHANAPAL, B.COM,B.A.B.L,A.C.S]

Dear All

In continuation to our earlier email in relation to above cited subject, we wish to inform  that we are experiencing a problem in e-filing of forms and returns across a number of companies. While uploading any form other than Annual filing forms, an error message crops up which reads as under, even such form is signed by the Company Secretary of that particular Company:

 

“The Director signing the eform is also a director of a defaulting company which has not filed due balance sheet and/or annual return. Hence the director is not allowed to file this form. Such defaulting company is required to file all the balance sheets, annual returns first, and then only the director will be allowed to sign the eform for filing."

 

The Ministry of Corporate Affairs (MCA) had recently come out with two circulars related to the above issue.

 

The First Circular No. 33/2011 was issued on 01.06.2011 and the circular contains that with effective from 3^rd July, 2011, no request whether in oral/writing/through e-forms will be accepted for recording any event based changes, for a defaulting company which has not filed its balance sheets and annual returns, except for a few forms i.e. form 32, 20B, 21A, DIN-3, 21, 23AC, ACA, 1 INV, 23B and 66. The Circular also states that no e-forms shall be accepted from Directors of these defaulting companies for any other company also. Company Secretaries and Auditors of these companies will also not be allowed to sign and certify any forms for such companies till the error is rectified.

 

The Second Circular No. 39/2011, issued on 20.06.2011, was issued as a clarification to the above circular and it reiterated that the above circular will be effective from 03.07.2011. It stated further that above circular shall be applicable to those defaulting companies and their Directors which have not filed Balance Sheet or Annual Return for any of the financial year’s 2006-07, 2007-08, 2008-09 and 2009-10.

 

As per the above circulars, form 32 is included in the list of exempt forms which will be registered in spite of the default. However, we are getting the same error message even while filing form 32. We have been constantly following up with the MCA officials at New Delhi but have not received any positive response so far. The MCA officers are little unwelcoming in answering any queries on phone and ask to send queries/complaints through email only. We have forwarded multiple mails also but haven’t received any reply as yet.

 

We thought it is a high time to share our experience that we encountered as contemplated above. Therefore left with no other option but to suggest all concerned to refer the following points to ensure smooth e-filing for your companies/clients

 

Ø  Ensure that all annual filing forms for the FY’s 2006-07 to 2009-10 have been filed with the ROC for all of your companies/group companies.

 

Ø  Obtain Form 24AA from all the Directors, Managers and Secretaries of all your companies.

 

Ø  Prepare a comprehensive list of name of all companies in which your directors are holding directorship.

 

Ø  Ensure / Suggest that all annual filing forms for the FY’s 2006-07 to 2009-10 have been filed with the ROC for all those companies in the above list in which your directors are holding directorship.

 

This is for your kind information and deliberation. We also solicit your views on this.

Thanks and Regards

S.Dhanapal
Senior Partner

S  D H A N A P A L & A S S O C I A T E S
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[Vivek Hegde]

Dear Mr. Dhanapal

Nice analysis..!

In addition, even if the Directors signing the Form are not the Directors of the defaulting Companies as per the said circular, we are experiencing the same problem.

Vivek

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[Prabha MJ]

Dear Mr.Dhanapal,

 

Thank u for sharing the message.

 

Almost all are experiencing the same problem with MCA. 

 

Since this is the time the companies start doing their Annual filings, initially it was considered as traffic due to lots of filing, but subsequently we learnt that its almost appears for all the signatories irrespective of they being officer in defalut or otherwise.

 

With Thanks & Regards,

 

Prabha.J

Designated Partner

Akshar Law House LLP.

www.aksharlawhouse.com

 

 

 

 

 

 

On Thu, Jul 7, 2011 at 6:30 PM, CS DHANAPAL, B.COM,B.A.B.L,A.C.S <sdasso...@gmail.com> wrote:

[CS A Rengarajan]

Dear All

 

Earlier also we have discussed the points. MCA  should set its house in order then they can impose these kind of restrictions. 

 

Directors whose companies merged with another entity still getting prosecution notices from the department

 

DIN  4  is another epiosode, they are yet to find solution for pan mis match.  I guess  more than 2,00,000 directors  din will be disabled after 30th september 2011 ,  They should give simplify the procedure. what will be the status of those directors  No body knows how system will works out.  Had the ministry  mandatory pan at the time provisional din since its inception, the problem would not have happend.  No fault on the directors, he will be penalised.

 

The companies are not filing the balance sheet but the professionals will be penalised in addition to the directors. You can't force the company to file the annual return.  It is upto to the promoters to decide.  i think professionals will not be penalised.

 

Little awarenss for xrbl again another confusion point.  How much software and how to file the same.

 

Big traffic jam in MCA

 

Regulations are necessary and we feel sufficient time to be given to corporate and penalise the company not the professionals.

 

Contrary view solicited

 

 

Why the professional institutes not taking up the same with MCA to resolve the issue. 

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[Srinivas N]

I think it is high time the Institute of CS take up the matter with the MCA with all seriousness.  MCA cannot create new problems every day.  I think the MCA sometimes is going over board.

Rgds,

[Suresh Kumar Vaishraj]

Dear Friends,

As per the provisions of Section 274(1)(g)(A) a public company if defaults in filing annual returns for 3 consecutive years, then the directors of such company shall disqualify. This does mean they can not act directors in other companies.

However, MCA has gone numerous steps forward and has mandated to file all annual returns for all kind of companies (including private limited companies) by issuing a circular. We have requested the RoC, Andhra Pradesh to raise a general complaint/ ticket to this effect.

MCA has not given any time period before issuing such anonymous circular. Let us how these things are panning out in the future.

Thanking you,
Suresh Kumar V
Company Secretary
91-9849991201

[Ramaswami Mohan]

i have been trying to file a F 8 and am getting a prompting message from MCA saying Transaction Error and asking me to contact back office . when i contacted , they asked me to keep trying to upload. after trying 10 times, i get a message that the director who has signed the form 8, has defaulted in filing annual filings for some other company. why "Transaction Error" and then this message ? and which is correct . our time and resources are wasted.

may the process is yet being stabilized !!

regards,

Mohan