Employee can file winding up of Employer Company for unpaid salary

Employee can file winding up of Employer Company for unpaid salary

Directors has to apply for quashing complaint in the Hight Court where FIR for fraud and cheating has been filed

Directors has to apply for quashing complaint in the Hight Court where FIR for fraud and cheating has been filed

ANNUAL FILING COMPLIANCE UNDER COMPANIES ACT

ANNUAL FILING COMPLIANCE UNDER COMPANIES ACT

Form No 15G and Form No 15H can be E filed

Form No 15G and Form No 15H can be E filed

Net worth does not include non refundable share application money pending allotment

Net worth does not include non refundable share application money pending allotment

How to close LLP ?

Close a Limited Liability Partnership

Do you want to close a LLP?

Any LLP can close down its business by adopting any of the following two ways:

A) Declaring the LLP as Defunct

In case the LLP wants to close down its business or where it is not carrying on any business operations for the period of one year or more, it can make an application to the Registrar for declaring the LLP as defunct and removing the name of the LLP from its register of LLP’s. 
eForm 24 is required to be filed for striking off the name of LLP under clause (b) of sub rule 1 of Rule 37 of LLP Rules 2008. Similarly, Registrar also has the power to strike off any defunct LLP after satisfying himself of the need to strike off and has reasonable cause. However, in this case, registrar has to send a notice to the LLP of his intention and request to send their representation within one month from the date of the notice. The Registrar shall publish such notice or content of the application made by the LLP on its website for a period of one month for the information of the general public. In case no reply is received within the mentioned period, registrar may strike off the name of LLP.

B) Winding up of LLP

Section 63, 64 and 65 of LLP Act 2008 governs the process for winding up of the LLP. It is the process where all the assets of the business are disposed off to meet the liabilities of the same and surplus any, is distributed among the owners. The LLP Act 2008 provides for following two modes for winding up the LLP i.e.:
◦   Voluntary winding up
◦   Compulsory winding up 

Voluntary Winding up : Under this, the partners may between themselves decide to stop and wound up the operations of the LLP.

Compulsory winding up - A limited liability partnership may be compulsorily wound up by the Tribunal,— 

◦   if the limited liability partnership decides that limited liability partnership be wound up by the Tribunal;
◦   if, for a period of more than six months, the number of partners of the limited liability partnership is reduced below two;
◦   if the limited liability partnership is unable to pay its debts;
◦   if the limited liability partnership has acted against the interests of the sovereignty and integrity of India, the security of the State or public order;
◦   if the limited liability partnership has made a default in filing with the Registrar the Statement of Account and Solvency or annual return for any five consecutive financial years; or
◦   if the Tribunal is of the opinion that it is just and equitable that the limited liability partnership be wound up.

For details, refer LLP Act, 2008 and “ Limited Liability Partnership (Winding up and Dissolution) Rules, 2010”

MCA has relaxed restrictive provisions of Companies Act, 2013 for Private Companies

Private Companies will heave a sigh of relief as MCA has relaxed restrictive provisions of Companies Act, 2013

SECTION 2(68), READ WITH SECTION 462, OF THE COMPANIES ACT, 2013 - PRIVATE COMPANIES - EXEMPTIONS TO

NOTIFICATION [F.NO.2/11/2014-CL.V], DATED 5-6-2015

In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of section 462 and in pursuance of sub-section (2) of said section of the Companies Act, 2013 (18 of 2013), the Central Government, in the interest of public, hereby directs that certain provisions of the Companies Act, 2013, as specified in column (2) of the Table, shall not apply or shall apply with such exceptions, modifications and adaptations, as specified in column (3) of the said Table, to a private company, namely:—

Board Meetings for Companies with charitable objects

Now Cos with charitable object to hold only one Board Meeting after every six calendar months

SECTION 2(8), READ WITH SECTION 462, OF THE COMPANIES ACT, 2013 - CHARITABLE COMPANIES - EXEMPTIONS TO

NOTIFICATION [F.NO.1/2/2014-CL.I], DATED 5-6-2015

In exercise of the powers conferred by clauses (a) and (b) of sub-section (1) of section 462 and in pursuance of sub-section (2) of said section read with section 8 of the Companies Act, 2013 (18 of 2013), and in supersession of notifications issued under section 25 of the Companies Act, 1956 (1 of 1956) except as respects things done or omitted to be done before such supersession, the Central Government in the interest of public, hereby directs that certain provisions of the Companies Act, 2013, as specified in column (2) of the Table, shall not apply or shall apply with such exceptions, modifications and adaptations, as specified in column (3) of the said Table, to a body to which a licence is granted under the provisions of the aforesaid section 8, namely :—

Borrower is allowed to be represented by an Advocate

Whether a borrower should be allowed to be represented by an advocate in proceedings conducted by bank to determine whether borrower is a wilful defaulter

■■■

[2015] 57 taxmann.com 334 (Delhi)

HIGH COURT OF DELHI

Kingfisher Airlines Ltd.

v.

Union of India

RBI's Master Circular - Master circular relating to wilful defaulter - Right of borrower to be represented by an advocate - Whether a borrower should be allowed to be represented by an advocate in proceedings conducted by bank to determine whether borrower is a wilful defaulter - Held, yes

Govt. withdraws old Ind AS notified in 2011 for Companies

[To be published in the Gazette of India, Extraordtnary, part-ll, Section 3, Sub_section (i]

 Government of lndia

 Ministry of Corporate Affairs

Notification New Dethi,

dated. 18th May, 2o15

G.S.R............(E).- In exercise of the powers conferred by section 133 read with section 469 of the companies Act, 2013 (18 0f 20131 , the central Government hereby rescinds the notifications of the Government of India in the Ministry of Corporate Affairs, published jn the Gazette of tndia, Extraordinary, Part ll, Section (3), 5ub-section (i), vide number G.S.R 179 (E), dated the 3.d March, 2011 and G,S.R 650 (E), dated the 29th August 2011, with immediate effect, except as respects things done or omitted to be done before such rescission.

[File Number 01/01/2009 CL-V]

[Amardeep Singh Bhatia]

-sd-

 Joint secretary,

Ministry of Corporate Affairs

Amendments in Companies Act 2013 by Companies(Amendment) Bill, 2014

Parliament approved the Companies(Amendment) Bill, 2014 on 13th May, 2015

The proposed amendments cover provisions which include empowering Audit Committee to give omnibus approvals for related party transactions on annual basis; doing away with the declaration by companies before commencement of business; ordinary resolution for related party transactions in certain cases; enabling provisions to prescribe thresholds beyond which fraud shall be reported by the auditors to the Central Government; public inspection of Board resolutions; restrictions on bail to apply only for offence relating to fraud u/s 447; making common seal optional; omitting requirement for minimum paid-up share capital; strength of benches for hearing winding up cases; jurisdiction of special courts to try offences;  setting off of past losses/depreciation before declaring dividend and exemptions for giving of loans/guarantee/security by holding companies to its subsidiaries, etc.
 
The details of the amendments are appended below:
 
 
1. Requirement of minimum paid- up share capital for private and public companies is proposed to be omitted. (For ease of doing business)

AMENDMENT IN COMPANIES ACT 2013

AMENDMENT IN COMPANIES ACT 2013 AS PASSED BY LOK SABHA ON ON MAY 7,2015

The Bill, namely, the Companies (Amendment) Bill, 2014, inter alia, contains the amendments to the Companies Act, 2013 as under:—

1. to amend clauses (68), (71) of section 2 and section 11 of the said Act to omit the requirement for minimum paid-up share capital, and consequential changes;
2.  to amend sections 9, 12, 22, 46 and 223 of the said Act for making common seal optional, and consequential changes for authorisation for execution of documents;
3.  to insert a new section 76A to provide for punishment for deposits accepted in violation of the provisions of the said Act;
   

How to Surrender DIN ?

Provisions related to Director Identification Number (DIN) Under Companies Act, 1956 and Under Companies Act, 2013

 Companies Act, 1956

As per Section 266A of Companies Act, 1956:  Every individual intending to be appointed as director of Company should obtain Director Identification Number (DIN).

As per Section 266C of Companies Act, 1956:  No individual, who had already been allotted a Director Identification Number under Section 266B, shall apply, obtain or process another Director Identification Number.

As per Section 266G of Companies Act, 1956:  If any individual or director, referred to in section 266A or section 266C, contravenes any of the provisions of those sections, every such individual or director or the company, as the case may be, who or which, is in default, shall be punishable with

• Fine which may extend to Rs. 5000/- (five thousand rupees only) and
• where the contravention is a continuing one, with a further fine which may extend to Rs. 500/- (five hundred rupees) for every day after the first during which the contravention continues.

How to Register Trademark in India

APPLICATION FOR REGISTRATION OF TRADEMARK UNDER  TRADEMARKS ACT, 1999

A Trade Mark is a visual symbol in the form of a word, a device,or a label applied to articles of commerce with a view to indicate to the purchasing public that is a good manufactured or otherwise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons. The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark.

The Trademarks Act, 1999 provides protection to the owner of a trademark and imposes criminal liabilities for the infringement of the trademark owner’s rights. To enjoy protection, the owner of a trademark must apply for registration with the Trademark Registrar of the Registry of Trademarks, India. The Trademarks Act is also applicable to the protection of service marks, certificate marks and collective marks. The Trade Mark Registry Office performs the statutory duties in connection with the registration of Trade mark and other activities related thereto. Trade Mark offices are located in Ahmadabad, Chennai, Kolkata, Mumbai and New Delhi.

TYPES OF TRADEMARK THAT CAN BE REGISTERED

INC-29: Integrated e-Form for Incorporation of Company in India

The Ministry of Corporate Affairs has introduced a new integrated e-form INC-29 w.e.t 1st May. 2015. 
INC-29 will be available for incorporating of companies other than section 8 companies and will accommodate applications for up to three new DIN applicants who will be Directors of the company being incorporated. 

In addition e-Forms INC-30 and INC-31 are also being made available for the purposes of Memorandum of Association (MoA) and Articles of Association (AoA) to be attached with INC-29. 

The Instruction kit for filling the e-forms INC-29. INC-30 and INC 31 may be accessed on the MCA21 portal. 
Standalone e-Forms DIR-3. INC-1 and INC-2 or INC-7 for DIN, Name Reservation and Incorporation of a company will continue to be available as before for stakeholders wanting to avail these services separately. 

For any further queries or difficulties, helpdesk facility of the MCA21 portal may be contacted at appl.helpdesk@mca.gov.in or at 0124-4832500.

In pursuance of sections 4,7,12,152 and 153 of the Companies Act, 2013 read with rules made there under)

Purpose of the eForm –

Incorporation of LLP under Companies Act, 2013

Limited Liability Partnerships

Recently most entrepreneurs have started opting for Limited Liability Partnership, considering it has most positive features of Partnership and Companies. It is hybrid form which incorporates benefits of both partnership and companies.

Limited Liability Partnerships (LLPs) are commercial vehicles which combine the features of partnership and company form of business .The concept of Limited Liability Partnership (LLP) has been introduced in India by way of Limited Liability Partnership Act, 2008 (notified on 31st March 2008).

• A Limited Liability Partnership combines the advantages of both the Company and Partnership into a single form of organization.
• In an LLP one partner is not responsible or liable for another partner’s misconduct or negligence.
• In an LLP, all partners have limited liability for each individual’s protection within the partnership, similar to that of the shareholders of a limited company.
• However, unlike the company shareholders, the partners have the right to manage the business directly. An LLP also limits the personal liability of a partner for the errors, omissions, incompetence, or negligence of the LLP’s employees or other agents.
• 
  

REQUIREMENTS FOR INCORPORATION OF LLP:

PARTNER:

1. A minimum of two partners will be required for formation of an LLP. There will not be any limit to the maximum number of partners.
2. A body corporate can also be Partner of LLP.

How to make a Company under Companies Act 2013 ?

Incorporation of Company- Under Section 7 Of Companies Act 2013 read with the Companies (Incorporation ) Rules 2014 

For incorporation of a company following steps is required to be followed:-

 1.     First of all the company should obtain the Digital signature of atleast one person out of Managing Director , Manager or secretary of the company as now a days various documents are required to be signed online which is possible only through DSC.

 2.     That after the company should apply for the DIN allotment for the persons who are going to be appointed as a director of the company. In case the person already holding a DIN then no such application is required to be made

General Meetings:Secretarial Standard

Companies will soon have to follow stringent norms such as providing detailed explanation on implications of particular resolutions while conducting board and shareholders' meetings. These provisions are part of new Secretarial Standards, which will have to be mandatorily followed by companies from 1st july 2015  Standards can be read at:

Download: Secretarial Standard on General Meetings

Meeting of Board of Directors:Secretarial Standard

Companies will soon have to follow stringent norms such as providing detailed explanation on implications of particular resolutions while conducting board and shareholders' meetings. These provisions are part of new Secretarial Standards, which will have to be mandatorily followed by companies from July 1 2015.

Download : SS1 : Secretarial Standard on Meeting of Board of Directors

Common Seal of Company

Common Seal of Company under Company Act 2013

As we all know that a Company being an artificial person does not have a physical presence, it acts through its Board of Directors for carrying out its activities and for entering into various agreements. Therefore, Company uses Common Seal as its Signature. Common Seal is the signature of the company to any document on which it is affixed and binds the company for all obligations undertaken in the document. Companies Act, 2013 provides that, the company shall have a Common Seal from the date of its incorporation. However, Companies Act, 2013 does not describe the form, mode of affixing Common Seal or its custody etc. To remove the ambiguity and to prescribe best and uniform practices with respect to affairs pertaining to Common Seal, Council of the Institute of Company Secretaries of India has issued Secretarial Standard-8 (SS-8): “Affixing of Common Seal”.

In this Article we have thrown light on provisions pertaining to Common Seal contained in Companies Act, 1956, Companies Act, 2013 and SS-8.

DEFINITION OF COMMON SEAL

In general, Common Seal means a metal stamp for stamping documents with the name of the company to show that they have been approved officially.

There is no definition prescribed under the Companies Act, 1956 and Companies Act, 2013. As per the Secretarial Standards issued by Institute of Company Secretaries of India, Common Seal means, the metallic seal of a company which can be affixed only with the approval of the Board of Directors of the Company. It is the signature of the company to any document on which It is affixed and binds the company for all obligations undertaken in the document.

In other words, Common Seal is the official signature of the company and each company shall have only one seal, on its incorporation. It is to be used in the manner prescribed in the Articles of Association and the Companies Act, 2013. Any document, on which the company’s seal is affixed and is duly signed by the authorized official of the company becomes binding on the company.

Secretarial Standard-8 (SS-8) – Affixing of Common Seal

Secretarial Standard-8 (SS-8)

SECRETARIAL STANDARD ON AFFIXING OF COMMON SEAL

The following is the text of the Secretarial Standard-8 (SS-8) issued by the Council of the Institute of Company Secretaries of India, on “Affixing of Common Seal.”

In the initial years, adherence by a company to this Secretarial Standard will be recommendatory.

Introduction

Common seal means the metallic seal of a company which can be affixed only with the approval of the Board of directors of the company. It is the signature of the company to any document on which it is affixed and binds the company for all obligations undertaken in the document.

A company shall have only one common seal.

The Act provides that from the date of incorporation mentioned in the certificate of incorporation, the company shall have a common seal

The Articles of Association provides the procedure relating to affixing of common seal.

Private Company Vs Public Company under Companies Act 2013

Introduction: The Companies Act of 2013 has done away with the relaxation to private companies in several provisions. The concept of “not applicable to private company” is no more in existence in the Act of 2013. Such a move in the Companies Act of 2013 has taken away certain privileges enjoyed by private companies. The privileges are of two types. One is for the directors and to their interest and the second one is for the private company itself. The Directors were hitherto enjoying certain pleasure from the application of certain provisions are now withdrawn. Further, the Companies Act, 2013 have mandated certain new requirement like that of internal audit to both public and private companies.

Comparison 

Companies (Auditor’s Report) Order,2015 : CARO 2015

The MCA has issued Companies (Auditor’s Report) Order,2015. It shall come into force on the date of its publication  in the Official Gazette.

[TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (ii)]

GOVERNMENT OF INDIA

MINISTRY OF CORPORATE AFFAIRS

Order

New Delhi, the 10th April, 2015

S.O. __________ (E).- In exercise of the powers conferred by sub-section (11) of section 143 of the Companies Act, 2013 (18 of 2013 ) and in supersession of the Companies (Auditor’s Report) Order, 2003, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 480 (E), dated the 12(11 June, 2003, except as respects things done or omitted to be done before such supersession, the Central Government, after consultation with the Institute of Chartered Accountants of India, constituted under the Chartered Accountants Act, 1949 (38 of 1949), hereby makes the following Order, namely:-

Maintaining Books of accounts of Company at Place other than Registered Office

As per new Companies Act, 2013, if a company maintains its books of accounts at any other place, the same should be reported to RoC by way of filing of Form AOC-5 (Earlier it was Form 23AA under Companies Act, 1956). Non-compliance can result into heavy monetary penalty as well as imprisonment of Directors/MD/CFO. 

As per Sec. 128 of the Companies Act, 2013 read with the Companies (Accounts) Rules, 2014 as amended from time to time:

• A company shall keep books of accounts, relevant books and papers and financial statements at its registered office only
• 
  
• Books must be kept on accrual basis and according to double entry system of accounting
• It can be in hard copy or electronic mode
• 
  
• In case of records in electronic mode, company shall intimate name of service provider, it’s IP address & location, address (if on cloud) to RoC on an annual basis at the time of filing of financial statement
• 
  
• Any or all such accounting records may also be kept at any other place in India as decided by BoD
• 
  
• Form AOC-5 must be filed mentioning the full address of place within 7 days of decision made by BoD to keep the books of accounts at any other place in India alongwith copy of board resolution as an attachment. The form is not required to be digitally signed by practising CA/CS/CMA. (Kindly note that proof of address where books are kept is not required to be attached)
• In case of Branches (in or outside India), books can be kept at branch office only provided summarised returns are sent to the registered office at regular intervals (On a quarterly basis in case of Foreign Branches based outside India)
• Books alongwith vouchers must be kept in good order for 8 years immediately preceeding the relevant year. Eg. in the running FY 2014-15, the company must keep its records from FY 2006-07 to FY 2013-14 (Central Government may require for keeping books of longer period if investigation has been ordered)
• 
  

Penalty for non-compliance of above provision

• MD/WTD/CFO/Other responsible person can be imprisoned for a period upto 1 year, or
• Minimum fine of INR 50,000 (Maximum INR 500,000), or Both
• 
  

Therefore, all companies which maintain books of accounts at any place in India other than registered office shall comply with any of the following option:

• change its registered office to the present place of business where books of accounts are actually maintained, or
• 
  
• keep its books of accounts and records at actual registered office only, or
• 
  
• report the other address in India where books of accounts are maintained by filing Form AOC-5 at the earliest.
•