The Ministry of
Corporate Affairs (MCA) through a Circular dated 26th December, 2016,
commenced the section 248 to 252 of Companies ct, 2013 (Chapter XVIII). This
chapter deals with “Removal of Names of Companies from the ROC”.
Please find the Link of Notification of the same:
By
introducing these sections, Ministry has
replaced the section 560 of Previous Companies Act, 1956.
Now, the process of
removing the name of the company from register of Registrar has been
simplified. Now instead of sending several notices as required in section 560
of the Companies Act, 1956, the registrar shall after making the necessary
publication in the Official Gazette for removing the name, unless cause to
contrary is shown to him by the company. Also the company and the directors are
required to make their representations on the device within a period of 30 days
from the date of notice.
Following are the
Provisions for Removal of Names of Companies under Companies Act, 2013:
Ø Power of Registrar to remove the
name of Company (Section 248):
1.
The registrar has power to remove
the name of company by sending notices (in
form STK-1) to the company and its directors under the following new
grounds:
o
Failure to commence its business within
one year of its incorporation, or
o
Failure in not carrying on any business
or operation for period of two immediately preceding financial years and has
not made any application for obtaining status of dormant company under section
455.
2. If
a company extinguishing all its liabilities, by a special resolution, file an
application to the Registrar for removing the name of the company and the
Registrar shall on receipt of such application, cause a public notice (in form STK-1) and shall published in the official gazette for
the information of general public.
Provided
that
in case, if company regulated under special Act, approval of the regulatory
body constituted or established under that act shall also be obtained and
enclosed with application.
3. At
the expiry of the time mentioned in Notice, the registrar may, strike off the
name of company form the register of companies and on the publication in the
Official Gazette, the company stand dissolved.
4. The
liability of every director, manager or other officer exercising any power of
management and every member of company dissolved shall continue and may be
enforced as if company had not been dissolved.
Ø Process for getting the name struck
off by company:
File duly filled form STK-2 along with
fees of Rs. 5000, with the attachment of following Docs:
1. indemnity
bond duly notarised by every director in Form STK 3;
2. An
affidavit in Form STK 4 by every
director of the company;
3. A
statement of accounts certified by a CA;
4. A
copy of resolution signed by director of the company
Ø Following category of companies shall
not be removed from the register of companies:
1. listed
companies;
2. Companies
under non compliance of Listing regulations or any other laws;
3. vanishing companies;
4. Companies where investigation, inspection and
prosecution is pending or carried out;
5. Companies where notice issued under section 206
or 207 have been issued;
6. companies whose application for compounding is
pending before the competent authority;
7. Companies, accepted public deposits which are
either outstanding or in default;
8. companies having charges which are pending for
satisfaction; and
9. Companies registered under section 8 of the
Act.
Ø Situations when a company cannot
make application to Registrar if, at any time in the previous three months, the
company (Section 249):
1. Has
changed its name or shifted its registered office from one state to another;
2. Has
engaged in any other activity except the one which is necessary or expedient
for the porpose of making an applicationunder that section, or deciding whether
to do so or concluding the affairs of the company.
3. Has
made an application to the tribunal for the sanctioning of a compromise or
arrangement and the matter has not been finally concluded; or
4. Is
being wound up under Chapter XX of this Act or under the Insolvency and
Bankruptcy code, 2016.
If a company make an
application in violation of section 248, it shall be punishable with fine upto
1 lakh.
Ø Effects of a company notified as
dissolved (Section 250).
This section implies that where a company
is dissolved under section 248, it shall cease to operate as a Company and the Certificate
of Incorporation (COI) shall be deemed to have been cancelled from such date
except for the purpose of realizing the amount due to the company and for the
payment or discharge of the liabilities of the company.
Ø Penalties for Fraudulent
Application for removal of name. (Section 251)
If a fraudulent application made by a company
for removal of it’s name from the register of companies, with the intention to
deceive the creditors or to defraud any other persons or with the object of
evading the liabilities, the person in charge of the management of the company shall-
ü Be
jointly and severally liable to any person or persons who had incurred loss or
damage or result of the company being notified as dissolved; and
ü Be
punishable for fraud as provided in section 447.
The
registrar may also recommend prosecution against the persons responsible for
the filing of such applications.
Ø Appeal to Tribunal. (Section 252)
Restoration
of Name: If any Person, aggrieved by an order of the ROC, can file an appeal to the Tribunal
within 3 years for restoration of the name of the company. If the Tribunal is
of the opinion that removal of name is not justified, may order for restoration
of it’s name.
If the Registrar believes that the name
of the company has been struck off from the register of companies on the basis
of incorrect information, which requires restoration, he may also file an
application to Tribunal for seeking restoration of the name of the company.
A Company/member/creditor/workman, if
aggrieved by the company having its name struck off, may apply to the Tribunal
before expiry of Twenty years from the publication in the official gazette of
the notice
Earlier, in Companies Act, 1956, the
workman was not considered as an aggrieved party. Now his interest has been
taken care.
Thanks and Regards
CS Chetan Bhadouria
(ACS, B.Com)
Mob: 9899399209
Email id: cschetanbhadouria@gmail.com
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