annual return

MCA has vide the Companies Ordinance 2019 which has been gazetted on 12th January, 2019 amended section 92 as follows:

Section 92 pertains to annual return to be filed by every company in India. This is one of the two mandatory annual filings to be done by every company in India. It is required to be filed within 60 days from the date of the annual general meeting or where no AGM is held, within 60 days from the last date on which AGM should have been held. It contains details of the Directors, shareholders, debt, managerial remuneration, share transfers, board meetings, general meetings, etc.

Section 92(5) is the penalty section, which has been modified. The amended section 92(5) states as follows:

"If a company fails to file its annual return under sub-section (4) before the expiry of the period specified therein, such company and its every officer who is in default shall be liable to penalty of Rs.50,000/- and in case of continuing failure, with a further penalty of Rs.100 per day during which the failure continues, subject to maximum of Rs.500,000/-."

What has changed is that earlier the company was subject to a penalty of not less than Rs.50,000/- but which may extend to Rs.500,000/- and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to 6 months OR fine of Rs.50,000/- which may extend to Rs.5000,000/- or with both.

So the imprisonment has been removed and penalty for both the company and officer in default has been made common i.e. Rs.50,000/-. Penalty for continuing failure has been added, which was not there hitherto.

Companies Amendment Act 2018 -

MCA has vide its notification dated 13th June, 2018 allowed commencement of amendment to five sections of the Companies Act, 2013, vide Companies (Amendment) Act, 2018. These amendments come into effect from 13th June, 2018. These are:

section 90: this section has been substituted by a new section in toto. This deals with significant beneficial ownership for which separate rules have been notified also. This section is basically to find out who is the actual owner of shares on which beneficial interest lies not with the person whose name is entered in the register of members but with somebody else. This is important from the point of view of compliance thereto in respect of individuals or one or two individuals who are having beneficial interest in shares of the company.

section 93: Deletion of this section. This section required promoters to give details of shares held by them and top ten promoters and any change made therein to the extent of two percent or more shareholding to be reported to the Ministry in the prescribed format. This was a cumbersome section and rightly done away with.

section 94: this section deals with place of keeping and inspection of registers & records etc. There was a proviso which said that the annual returns may also be kept at a place other than the registered office in India in a city where more than 1/10th of the total number of members reside, if approved by a special resolution passed at a general meeting. There was a requirement that the ROC be given an advance copy of the proposed special resolution. This requirement of providing advance copy of the special resolution to the ROC has been done away with. 

Sub-Section (3) of section 94 provided that any member, debenture holder, other security holder or beneficial owner or any other person may (a) take extracts from any register or index or return without payment of fee, or (b) require a copy of such register or entries thereon or return on payment of such fees as may be prescribed.

Now a proviso has been added to this sub-section which says that - such particulars of the register or index or return as may be prescribed shall not be available for inspection under sub-section (2) or taking extracts or copies under this sub-section. 

Section 96- This section pertains to annual general meeting. Now a provision has been added in sub-section (2) that the annual general meeting of an unlisted company may be held at any place in India, provided consent is given in writing or by electronic mail by all the members in advance. 

So, this is is a liberalised move to allow private companies and unlisted public companies to hold annual general meeting at any place in India, provided consent is taken thereof in advance.

Section 216: This section pertains to investigation of ownership of the company. Pursuant to the enactment of the new section 90 regarding significant beneficial ownership, a clause has been added empowering central government to appoint one or more inspectors to investigate and report on matters relating to the company or persons "who have or had beneficial interest in shares of a company or who are or have been beneficial owners or significant beneficial owner of a company"