LATE FEE FOR FORM 23B
AMIT SETHI
Warm Regds,
Amit Sethi
AUM Capital Market (P) Ltd
98301-42555
Krishna Moorthy K
Please file the form 23B for the F/Y 10-11 with late fee. Since you are sill liable for payment of fine of Rs;500/- per day for every day during which the default continues. To avoid the situation of continuous default, it is advisable to file the form 23B for the last year now with the late fee. Either you can simultaneously file compounding application under Section 621A of the Companies Act, 1956 or wait for the show cause notice from the Registrar of Companies. It is possible that R.O.C. can take this lapse leniently and may not issue show cause notice in which case, you may not be required to go in for compounding of offence under Section 621A of the Companies Act, 1956.
Regards,
CS. K. Krishnamoorthy
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Vikash Agarwal
Dear Amit,
This is with reference to the query raised by you in the trailing mail.
Circular 14/2012 dated 21st June’12 was issued by the Department, imposing fees on certain e-forms (including Form 23B) filed with ROC, RD or MCA(HQ) under MCA-21 where no fees were prescribed earlier. Further, the Department vide Circular 19/2012 and 22/2012 had deferred the imposition of fees on filing of Form 23B till 12th August, 2012, after which the fees was ought to be paid along with the penalty for delay, if any.
I would also like to bring to your kind notice that Circular 31/2012 had extended the filing of e-form 23B without any additional fee for FY 2012-13 which is not applicable in our case. Hence, for FY 2010-11, if there is a lapse in filing of Form 23B and if the same was also not filed during the grace period provided by the Department, i.e., till 12th August, 2012, the same needs to be filed along with fees and penalty. I would also like to inform you that filing of Form 23B in mandatory.
In respect of the fees and penalty for late fees as provided in the Schedule X to the Act, I would like to inform you that the fees depends upon the authorised capital of the company and the penalty depends upon the period of delay which can extend up to 9 times of the normal filing fees. Assuming, the appointment was made in Sep’10, in your case the total fees along with penalty can range from ` 2000/- to ` 5000/- depending upon the authorised capital.
In case you require any further clarifications, please let us know.
Thanks & Regards,
Vikash Agarwal
Director - ARV Advisory Services (P) Ltd.
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Email: vik...@arvsolutions.co.in/in...@arvsolutions.co.in
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ASIM DE
Dear Amit,
No Need to do anything. Dept may not take any action as it was not mandatory.Simply
while submitting Form 23AC please write Z 99999999 in the SRN place for the year 2010-11 as meant for.
CA. A.K.DE
|
Rahul Gupta
Dear Amit,
This has reference to your trailing mail.
In this regard, kindly note that Sec. 224(1A) of the Companies Act, 1956 (here-in-after referred as “Act”)requires that every appointed u/s 224(1) of the Act, i.e. appointment of auditor in AGM, shall within 30 days of the receipt from the company of the intimation of his appointment, inform the Registrar in writing that he has accepted, or refused to accept, the appointment.
Further, reference may be also made to Ramaiya’s Commentary in respect of filing of Form 23B u/s 224(1A) of the Act which states that “to emphasise, not only the acceptance of appointment, but also refusal to accept the appointment as auditor is required to be communicated to the Registrar, by the auditor........ It may be noted that the obligation to give notice to the Registrar is cast only on the auditors appointed under sub-section (1). Persons appointed as auditors under other subsections need not give this notice to the Registrar. Hence, the first auditors who are appointed by the Board of Directors are under no obligation to inform the Registrar.”
It may be noted that there is no specific penalty is prescribed under the Act for non-compliance of Sec. 224(1A). However, penalty may be levied u/s 629A of the Act which deals with the penalty where no specific penalty is provided elsewhere in the act. The penalty under the said section may extend upto INR 5,000 and if its a continuing one then additional fine of INR 500 per day may be levied. Further, offences covered under this section are compoundable. The extract of the same has been reproduced below:
“629A. PENALTY WHERE NO SPECIFIC PENALTY IS PROVIDED ELSEWHERE IN THE ACT
If a company or any other person contravenes any provision of this Act for which no punishment is provided elsewhere in this Act or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, the company and every officer of the company who is in default or such other person shall be punishable with fine which may extend to five thousand rupees, and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues.”
Further, as rightly pointed out by colleague, CA Vikash Agarwal, that the Ministry of Company Affairs has levied additional fees for late filling of Form 23B which may extend to nine times of fees payable.
Hence, in my opinion it was always mandatory to file Form 23B and penalty u/s 629A can be imposed.
In case you need further clarification, please feel free to contact us.
Best Regards,
CA. Rahul Gupta
Partner - ARVG & Associates
Director - ARV Advisory Services (P) Ltd.
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KIRTI TULSYAN
Sent from my iPhone
Dear Amit,
This has reference to your trailing mail.
In this regard, kindly note that Sec. 224(1A) of the Companies Act, 1956 (here-in-after referred as “Act”)requires that every appointed u/s 224(1) of the Act, i.e. appointment of auditor in AGM, shall within 30 days of the receipt from the company of the intimation of his appointment, inform the Registrar in writing that he has accepted, or refused to accept, the appointment.
Further, reference may be also made to Ramaiya’s Commentary in respect of filing of Form 23B u/s 224(1A) of the Act which states that “to emphasise, not only the acceptance of appointment, but also refusal to accept the appointment as auditor is required to be communicated to the Registrar, by the auditor........ It may be noted that the obligation to give notice to the Registrar is cast only on the auditors appointed under sub-section (1). Persons appointed as auditors under other subsections need not give this notice to the Registrar. Hence, the first auditors who are appointed by the Board of Directors are under no obligation to inform the Registrar.”
It may be noted that there is no specific penalty is prescribed under the Act for non-compliance of Sec. 224(1A). However, penalty may be levied u/s 629A of the Act which deals with the penalty where no specific penalty is provided elsewhere in the act. The penalty under the said section may extend upto INR 5,000 and if its a continuing one then additional fine of INR 500 per day may be levied. Further, offences covered under this section are compoundable. The extract of the same has been reproduced below:
“629A. PENALTY WHERE NO SPECIFIC PENALTY IS PROVIDED ELSEWHERE IN THE ACT
If a company or any other person contravenes any provision of this Act for which no punishment is provided elsewhere in this Act or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, the company and every officer of the company who is in default or such other person shall be punishable with fine which may extend to five thousand rupees, and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues.”
Further, as rightly pointed out by colleague, CA Vikash Agarwal, that the Ministry of Company Affairs has levied additional fees for late filling of Form 23B which may extend to nine times of fees payable.
Hence, in my opinion it was always mandatory to file Form 23B and penalty u/s 629A can be imposed.
In case you need further clarification, please feel free to contact us.
Best Regards,
CA. Rahul Gupta
Partner - ARVG & Associates
Director - ARV Advisory Services (P) Ltd.
--------------------------------------------------------------------------------
D: +91-33- 2213 7625 / 3022 4196; M: +91-98308 86543Email: ra...@arvsolutions.co.in / in...@arvsolutions.co.in
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