Fwd: RTI on non compliance of section 383A for appointment of whole time company secretary
Mansi Damania & Associates
From: "nitin dubey" <nitin.c...@gmail.com>
Date: Jan 12, 2014 3:58 PM
Subject: Fwd: RTI on non compliance of section 383A for appointment of whole time company secretary
To:
Cc:
To,
The Institute of company secretaries of India
Dear sir /Mam
sub:- RTI on non compliance of section 383A for appointment of whole time company secretary
RTI was filed in Ministry of corporate affairs in which following questions were asked from Ministry of corporate affairs:-
1. How many companies are covered under sec 383A of companies act 1956 which are required to appoint whole time company secretary under sec383A of companies act 1956
2. what action has been taken against companies which have not complied with sec 383A of companies act 1956
3. please provide the name of companies which have violated sec 383A and which made application for compounding of offence under sec 383A
In response to above questions Registrar of companies of different states have given the reply and it was found that:-
1. Registrar of companies takes action against companies for violation of sec 383A only if ministry gives them specific instructions and such actions are not taken suo moto by registrars even though they have the powers to do so as per RTI manual of MCA.
2. In state like gujarat , there are 3179 companies which have violated sec 383A however action is taken only against 103 companies for such violation .
Further when asked from Registrar of companies gujarat why action is taken only 103 companies , the reply of ROC Gujarat was that action for violation of sec 383A against such specific companies is taken as per intsructions of Ministry and it is not suo moto action of ROC gujarat
3. Further it has been found that in few states there are 8 to 10 companies only which have made application for compounding of offence under sec 383A. In some state there are no such companies which have made such application since they have never received the notice of registrar for non compliance.
4. Further as per RTI Manual available on website of Ministry of corporate affairs , employees of Ministry of corporate affairs or any its other subordinate departments and agencies are required to comply with following service rules:-
i. All India Services (AIS) Rules.
ii. General Financial Rules.
iii.Indian Corporate Law Service Rules.
Etc.
Rule 9 of Chapter 2 of General Financial Rules states that it is the duty of the Department of the Central Government to ensure that the receipts and dues of the Government are correctly and promptly assessed, collected and duly credited to the Consolidated Fund or Public Account as the case may be.
However non action by concerned MCA govt officials/Registrar of companies against those companies which have violated sec 383A of companies act 1956 leads to loss of revenue to the govt. since non compliance of sec 383A is punishable with fine of Rs 500 for everyday during which default continues.
2. The another RTI was filed with Ministry of corporate affairs where following questions were asked from Ministry:-
A. Whether MCA or any of its subordinate conducts compliance audit of the companies registered under companies act to check whether companies are in compliance of the companies act or not on yearly/quarterly or any other basis.
The MCA replied no such audit is done BY MCA or its agencies and the defaulters list of companies as published on MCA website is on the basis of audit of few companies selected randomly on hit and trial basis.
PLEASE FIND ATTACHED THE REPLY OF ROC GUJARAT FOR YOUR KIND CONSIDERATION.
FURTHER REPLIES OF ALL OTHER ROC COULD BE PROVIDED TO ICSI IF REQUIRED BY THEM.
Best Regards
Nitin Dubey
CC to
1. ICSI
2. Ministry of corporate Affairs
3. ROC of ALL States