FAST TRACK EXIT (FTE) SCHEME
Section 248, 249, 250, 251 & 252 of the
Companies Act, 2013
{Read with Companies (Removal of Names of Companies
from Register of Companies) Rules, 2016}
[Effective from 26th
December, 2016]
FAST TRACK EXIT (FTE) scheme
has been notified under the new Companies Act, 2013. It is very simple and cost
saving method of winding up of the Company without going for lengthy liquidation
process and without High court intervention. Under these sections, the power
has been given to Registrar of Companies to strike off the name of the Company
from the Register of Companies on suo-motto basis but a Company can also file
the application in the prescribed form to the ROC for removing the name of the
Company after extinguishing all its liabilities and after complying with some
conditions.
ü Following categories of the Companies shall not be
removed/Strike off via FTE Scheme:
1.
listed companies;
2.
companies that have been delisted
due to non-compliance of listing regulations or listing agreement or any other
statutory laws;
3.
vanishing companies;
4.
companies where inspection or
investigation is ordered and being carried out or actions on such order are yet
to be taken up or were completed but prosecutions arising out of such
inspection or investigation are pending in the Court;
5.
companies where notices under
section 234 of the Companies Act, 1956 (1 of 1956) or section 206 or section
207 of the Act have been issued by the Registrar or Inspector and reply thereto
is pending or report under section 208 has not yet been submitted or follow up
of instructions on report under section 208 is pending or where any prosecution
arising out of such inquiry or scrutiny, if any, is pending with the Court;
6.
companies against which any
prosecution for an offence is pending in any court;
7.
companies whose application for
compounding is pending before the competent authority for compounding the
offences committed by the company or any of its officers in default;
8.
companies, which have accepted
public deposits which are either outstanding or the company is in default in
repayment of the same;
9.
companies having charges which are
pending for satisfaction; and
10.
Companies registered under section
25 of the Companies Act, 1956 or section 8 of the Companies Act. 2013.
§ “Vanishing
Company” means a company, registered under the Act or previous
company law or any other law for the time being in force and listed with Stock
Exchange which has failed to file its returns with the Registrar of Companies
and Stock Exchange for a consecutive period of two years, and is not
maintaining its registered office at the address notified with the Registrar of
Companies or Stock Exchange and none of its directors are traceable.
§
“Dormant Company”: As per Section 455 of the Companies Act, 2013, where a
company is formed and registered under this Act
1.
for a future project, or
2.
to hold an asset or intellectual
property, and
3.
has no significant accounting
transaction,
Such a company or an inactive company may make an application
to the Registrar in the Form MSC-1for
the status of a dormant company
“Inactive
company” means a company which
i.
has not been carrying on any
business or operation, or
ii.
has not made any significant
accounting transaction during the last two financial years, or
iii.
has not filed financial statements
and annual returns during the last two financial years;
“Significant Accounting Transaction” means any transaction other than –
(i)
payment of fees by a company to the
Registrar;
(ii)
payments made by it to fulfil the
requirements of this Act or any other law;
(iii)
allotment of shares to fulfil the
requirements of this Act; and
(iv)
Payments for maintenance of its
office and records.
ü REMOVAL
OF NAME OF COMPANY FROM THE REGISTER ON SUO-MOTTO BY ROC:
1.
The Registrar of Companies may remove the name of a company
from the register of companies when
a. a
company has failed to commence its business within one year of its
incorporation, or
b. a
company is not carrying on any business or operation for a period of two
immediately preceding financial years, and
c. has
not made any application within such period for obtaining the status of a
dormant company under section 455 of the Companies Act, 2013.
2. He shall send a notice in the Form STK-1 to the company
and all the directors of the company, by registered post with acknowledgement
due or by speed post, of his intention to remove the name of the company from
the register of companies and requesting them to send their representations
along with copies of the relevant documents, if any, within a period of 30 days
from the date of the notice.
a. place
notice (Form STK-5) on the official website of the Ministry of Corporate Affairs on a separate link established on such website in this
regard;
b. publish
notice (Form STK-5) in the Official Gazette;
c. Publish
notice (Form STK-5A)* in English language
in a leading English newspaper and at least once in vernacular language in a
leading vernacular language newspaper, both having wide circulation in the
State in which the registered office of the company is situated.
*inserted vide Companies (Removal of
Names of Companies form the Register of Companies) Amendment Rules, 2017 dated
12th April, 2017
4.
The Registrar of
Companies shall intimate the concerned regulatory authorities regulating the
company, viz, the Income-tax authorities, Central Excise
authorities and Service-tax authorities having jurisdiction over the
company, about the proposed action of removal or striking off the names of such
companies and seek objections, if any, to be furnished within a period of 30
days from the date of issue of the letter of intimation and if no
objections are received within 30 days from the respective authority, it shall
be presumed that they have no objections to the proposed action of striking off
or removal of name.
5.
At the expiry of the 30 days, the Registrar may, unless
cause to the contrary is shown by the company, strike off its name from the
register of companies, and shall publish notice (Form STK-7) in the Official
Gazette the same shall also be placed on the
official website of the Ministry of Corporate Affairs (MCA) and on the
publication in the Official Gazette of this notice, the company shall stand
dissolved.
6.
The Registrar, before passing an order of removal of
name of the Company, shall satisfy himself that sufficient provision has been
made for the realisation of all amount due to the company and for the payment
or discharge of its liabilities and obligations by the company within a
reasonable time and, if necessary, obtain necessary undertakings from the
managing director, director or other persons in charge of the management of the
company.
ü APPLICATION BY
COMPANY FOR REMOVAL OF NAME OF COMPANY :
1.
If a Company
a.
has
failed to commence its business within one year of its incorporation, or
b.
is
not carrying on any business or operation for a period of two immediately
preceding financial years, and
c. In this regard,
has not made any application within such period for obtaining the status of a
dormant company under section 455 of the Companies Act, 2013,
may file an application for removal
of name of the company in Form STK-2 along
with the fee of Rs. 5,000/-.
2. The application
in Form STK-2 shall be
accompanied by:
a. Indemnity
bond duly notarised in Form STK-3 (To be given individually or collectively by every Director);
b. An
affidavit in Form STK-4 by every Director of the company;
c. a
statement of accounts containing Assets and Liabilities of the company made up
to a day, not more than 30 days before the date of application and certified by
a Chartered Accountant;
d. a
copy of the special resolution duly certified by each of the directors of the
company or consent of 75% of the members of the company in terms of paid up
share capital as on the date of application;
e. PAN
card and Address proof of all the Directors certified by Practicing CA/CS/CWA
or any Gazetted officer;
f. Copy
of de-listing order from Stock Exchange, if any;
g. Any
other documents as per other laws, if any applicable;
h. a
statement regarding pending litigations, if any, involving the company;
i. No
objection certificate from appropriate Regulatory Authority concerned in
respect of following companies, namely:-
i. companies
which have conducted or conducting non-banking financial and investment
activities as referred to in the Reserve Bank of India Act, 1934 (2 of 1934) or
rules and regulations there under;
ii.
Housing
Finance Companies as referred to in the Housing Finance Companies (National
Housing Bank) Directions, 2010 issued under the National Housing Bank Act, 1987
(53 of 1987);
iii.
Insurance
Companies as referred to in the Insurance Act, 1938 (4 of 1938) or rules and
regulations there under;
iv.
Companies
in the business of Capital Market intermediaries as referred to in the
Securities and Exchange Board of India Act, 1992 (15 of 1992) or rules
and regulations there under;
v.
Companies
engaged in collective investment schemes as referred to in the Securities and
Exchange Board of India Act, 1992 (15 of 1992) or rules and
regulations there under;
vi.
Asset
Management Companies as referred to in the Securities and Exchange Board of
India Act, 1992 (15 of 1992) or rules and regulations there under;
vii.
Any
other company which is regulated under any other law for the time being in
force.
Note: If the person is
a foreign national or non-resident Indian, the indemnity bond in Form STK-3 and
affidavit in Form STK-4 shall be notarised or apostatised or consularised.
3. The application
in Form STK-2 shall be signed by a Director duly authorised by the Board in
their behalf.
4.
Where
the director concerned does not have a registered digital signature
certificate, a physical copy of the form duly filled in shall be signed
manually by a Director duly authorised in that behalf and shall be attached
with the Form STK-2 while
uploading the form.
5.
The Form STK-2 shall
be certified by a Chartered Accountant in whole time practice or Company
Secretary in whole time Practice or Cost Accountant in whole time practice.
6.
The
ROC shall
a. place
notice (Form STK-6) on the official website of the Ministry of Corporate
Affairs on a separate link established on such website in this
regard;
b. publish
notice (Form STK-6) in the Official Gazette;
c. Publish
notice (Form STK-5A)* in English
language in a leading English newspaper and at least once in vernacular
language in a leading vernacular language newspaper, both having wide
circulation in the State in which the registered office of the company is
situated;
d. the
company shall also place the application Form STK-2 on its website, if any,
till the disposal of the application.
*inserted vide Companies (Removal of
Names of Companies form the Register of Companies) Amendment Rules, 2017 dated
12th April, 2017.
7.
The Registrar of
Companies shall intimate the concerned regulatory authorities regulating the company,
viz, the Income-tax authorities, Central Excise authorities and
Service-tax authorities having jurisdiction over the company, about the
proposed action of removal or striking off the names of such companies and seek
objections, if any, to be furnished within a period of 30 days from the date of
issue of the letter of intimation and if no objections are received within
30 days from the respective authority, it shall be presumed that they have no
objections to the proposed action of striking off or removal of name.
8.
At the expiry of the 30 days, the Registrar may, unless
cause to the contrary is shown, strike off its name from the register of
companies, and shall publish notice (Form STK-7) in the Official Gazette the same shall also be placed on the official website
of the Ministry of Corporate Affairs (MCA) and on the publication in the
Official Gazette of this notice, the company shall stand dissolved.
ü LIABILITIES AFTER STRIKE OFF/NAME REMOVAL OF THE COMPANY
1. The assets of the company shall be made available for
the payment or discharge of all its liabilities and obligations even after the
date of the order removing the name of the company from the register of
companies.
2. The liability, if any, of every director, manager or
other officer who was exercising any power of management, and of every member
of the company dissolved, shall continue and may be enforced as if the company
had not been dissolved.
ü RESTRICTIONS ON MAKING APPLICATION IN FORM STK-2:
As per section 249 of the Companies Act, 2013, an application in
the form STK-2 under sub-section (2) of section 248 on behalf of a company shall not be
made if, at any time in the previous three months, the company:
i.
has changed its name or shifted its registered
office from one State to another;
ii. has made a disposal for value of property or
rights held by it, immediately before cesser of trade or otherwise carrying on
of business, for the purpose of disposal for gain in the normal course of
trading or otherwise carrying on of business;
iii.
has engaged in any other activity except the one
which is necessary or expedient for the purpose of making an application under
that section, or deciding whether to do so or concluding the affairs of the
company, or complying with any statutory requirement;
iv. has made an application to the Tribunal for the
sanctioning of a compromise or arrangement and the matter has not been finally
concluded; or
v. is being wound up under Chapter XX of this Act
or under the Insolvency and Bankruptcy Code, 2016.
·
If a company files an application in STK-2
in violation of above mentioned restrictions, it shall be punishable with fine
which may extend to one lakh rupees.
·
An application filed in STK-2 shall be withdrawn by the company or
rejected by the Registrar as soon as conditions mentioned above are brought to
his notice.
ü
EFFECT OF COMPANY NOTIFIED AS DISSOLVED
As
per section 250 of the Companies Act, 2013, where a company stands dissolved under section 248, it shall on and from the
date mentioned in the notice (Form STK-7), cease to operate as a company and
the Certificate of Incorporation issued to it shall be deemed to have been
cancelled from such date except for the
purpose of realising the amount due to the company and for the payment or
discharge of the liabilities or obligations of the company.
ü FRAUDULENT APPLICATION IN FORM STK-2 FOR REMOVAL OF NAME
As
per section 251 of the Companies Act, 2013, where it is found that an application filed by a company in the
form STK-2 has been made with the
object of evading the liabilities of the company or with the intention to
deceive the creditors or to defraud any other persons, the persons in charge of
the management of the company shall, notwithstanding that the company has been notified
as dissolved:
i. be jointly and severally liable to any person or
persons who had incurred loss or damage as a result of the company being
notified as dissolved; and
ii. be punishable for fraud in the manner as provided in Section 447 (Punishable with an imprisonment
for a term which shall not be less than
6 months but which may extend to 10 years and shall also be liable to fine
which shall not be less than the amount
involved in the fraud but which may extend to 3 times the amount involved in
the fraud);
iii. The Registrar may also recommend prosecution of the persons responsible for the filing of an application in form STK-2.
ü APPEAL OR APPLICATION TO TRIBUNAL FOR RESTORATION OF NAME OF THE COMPANY
IN THE REGISTER OF COMPANIES
·
As per section 252 of the Companies Act, 2013, any person aggrieved by an order of
the Registrar, notifying a company as dissolved under section 248, may file an appeal
to the Tribunal within a period of 3 years from the date of the order of the
Registrar and if the Tribunal is of the opinion that the removal of the
name of the company from the Register of Companies is not justified in view of
the absence of any of the grounds on which the order was passed by the
Registrar, it may order restoration of the name of the company in the register
of companies.
Before passing any order, the Tribunal shall
give a reasonable opportunity of making representations and of being heard to
the Registrar, the company and all the persons concerned.
If the Registrar is satisfied, that the name
of the company has been struck off from the Register of Companies either
inadvertently or on the basis of incorrect information furnished by the company
or its directors, which requires restoration in the Register of Companies, he
may within a period of 3 years from the date of passing of the order dissolving
the company under section 248,
file an application before the Tribunal seeking restoration of name of such
company.
·
A copy of the order passed by the Tribunal shall
be filed in the form INC-28 by the company with the Registrar within 30 days
from the date of the order and on receipt of the order, the Registrar shall restore
the name of the company in the Register of Companies and shall issue a fresh
certificate of incorporation.
·
If a company or any member or creditor or
workman thereof feels aggrieved by the company having its name struck off from
the register of companies, the Tribunal on an application made by the
company or member or creditor or workman before the expiry of 20 years from the
publication in the Official Gazette of the notice in STK-7 may, if satisfied that the company
was, at the time of its name being struck off, carrying on business or in
operation or otherwise it is just that the name of the company be restored to
the register of companies, order the name of the company to be restored to the
register of companies, and the Tribunal may, by the order, give such other
directions and make such provisions as deemed just for placing the company and
all other persons in the same position as nearly as may be as if the name of the
company had not been struck off from the register of companies.
Consent of Shareholder
[Pursuant to
sub-section (2) of the section 248 of the Companies Act, 2013]
To,
The Board of Directors
Name
of Company
Registered
office of the Company
Dear Sir,
Having the ……………Equity/Preference shares in the
Company (………% of the total paid up Share Capital
of the Company), I/We hereby give my/our consent, pursuant to sub-section (2)
of Section 248 of the Companies Act, 2013 and rules made there under, to the
Company to file an application in the Form STK-2 to the Concerned Registrar of
Companies for removing the name of the Company from Register of Companies.
Signature
Name of Shareholder
Father’s Name
Address
L.F. No.:
Form No. STK – 3
INDEMNITY BOND
(To be given individually or
collectively by every Director)
[Pursuant
to clause (i) of sub-rule (3) of rule 4 of the Companies (Removal of Names of
Companies from the Register of Companies) Rules, 2016]
To
The Registrar
of Companies,
……………………………….
1. I/We,
the Director(s) of M/s………………………………….., incorporated on …………… under the Companies
Act, 2013 or the Companies Act, 1956 having its registered office at ……………………………………………………………………do
hereby declare that:
(i)
I/We ………………………..S/o
/ D/o / W/o Shri…………………..am/are and Directors of this Company.
(ii)
That I/We
have made an affidavit confirming that the company does not have any assets
& liabilities as on date.
(iii)
Further, the
company has been inoperative from the date of its incorporation / The Company commenced
business/operations/commercial activity after incorporation but has been
inoperative for the past…………..year(s) (Strike
out whichever is not applicable). Thus the Company is defunct and I request
the Registrar of Companies, ………………………..,
to strike off the name of the Company
from the Register
of Companies under
Section 248 of the Companies Act,
2013.
2. I/We do hereby undertake to indemnify:
(i)
The
claimants for all lawful claims against the company arising in future after the
striking off the name of the company.
(ii)
Any person for
any losses that may arise pursuant to striking off the name of the Company.
(iii)
The
claimants for all lawful claims and liabilities, which have not come to our
notice up to this stage, and if any claim arises or observed even after the
name of the Company has been struck
off in terms of Section 248 of the Companies Act, 2013
Date:
Place:
(Name, Father’s Name, Address and Signature)
(To be given by every Director)
WITNESSES:
- Signature
Name :
Father’s Name :
Address :
Occupation :
- Signature
Name :
Father’s Name :
Address :
Occupation :
Form No. STK – 4
AFFIDAVIT
(To be given individually by
every Director)
[Pursuant
to sub-section (2) of section 248 read with clause (iii) of sub-rule (3) of rule
4 of the Companies (Removal of Names of Companies from the Register of
Companies) Rules, 2016]
- I……………………………..Director of M/s…………………………….(hereinafter called “the Company”), incorporated on………………..under the Companies Act, 2013 or the Companies Act, 1956 having its registered office at…………………………………………… and having CIN:……………………………. do solemnly affirm and state as under:
(i)
I………………………..S/o / D/o
Shri………………….holder of DIN/Income Tax PAN/Passport Number……………………………(Copy of Income Tax PAN/Passport Duly
attested by a Gazetted Officer or a whole time practicing professional viz
Chartered Accountant/Company Secretary/Cost Accountant) am Director of the Company
stated above since………………….(Mention Date
of Appointment).
(ii)
My present residential address
is ……………………………………………………. (Copy of
documentary evidence duly attested by a Gazetted Officer or a whole time practicing
professional viz Chartered Accountant/Company Secretary/Cost Accountant) is
enclosed.
(Alternatively, an affidavit sworn before Magistrate may be
enclosed).
(iii)
My permanent address is …………………………………………………….
(Copy of documentary evidence duly
attested by a Gazetted Officer or a whole time practicing professional viz
Chartered Accountant/Company Secretary/Cost Accountant) is enclosed.
(Alternatively, an affidavit sworn before Magistrate may be
enclosed).
(iv)
The company does not maintain
any bank account as on date.
(v)
I Company M/s…………………………….does
not have any assets and liabilities as on date.
(vi)
The Company has been
inoperative from the date of its incorporation/The Company commenced business/operations/commercial
activity after incorporation but has been inoperative for past…………………..year(s)
due to following reasons…………………….(Give
the reasons here).
(vii)
As on date, the company does
not have any dues towards Income Tax/Sales Tax/Central Excise/Bank and
Financial Institutions; any other Central or State Government
Departments/Authorities or any Local Authorities.
- I further affirm that-
(i)
No inquiry, technical scrutiny,
inspection or investigation or ordered or pending against the Company;
(ii)
No prosecution or any
compounding application for any offence under the Act or under any of the other
Acts is pending against the Company or against the undersigned;
(iii)
The Company is neither listed
nor delisted for non-compliance of listing agreement;
(iv)
The Company is not a company
incorporated for charitable purposes under section 8 of the Companies Act, 2013
or section 25 of the Companies Act, 1956;
(v)
The Company does not have any
management disputes or there is no litigation pending with regard to management
or shareholding of the company;
(vi)
No order is in operation staying
filing of the documents by a court or tribunal or any other competent
authority;
(vii)
The Company is not prevented
from making the applications for strike off as mentioned in section 249 of the
Act.
I solemnly state
that the contents of this affidavit are true to the best of my knowledge and
belief and that it conceals nothing and that no part of it is false.
Signature:…………………………
(Deponent)
Verification:
I verify that the contents of this affidavit are true to the best of
my Knowledge and belief.
Signature:…………………………
(Deponent)
Date:
Place:
NOTE: Attention is also drawn to provisions of section
449 which provide for punishment for false evidence.
Contact Details:
VISHAL SHARMA
Company Secretary
Mob: 9716763754
Email: csvishalpbs@gmail.com
FOR MORE ARTICLES VISIT TO:
http://csvishalsharma.blogspot.in/
-
Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
Disclaimer: The Content is prepared on the basis of our general understanding and on the basis of relevant provision of Companies Act, 2013 read with rules made there under. The whole content is only for the knowledge sharing purpose, we do not take any responsibility for the correctness of the same.
Comments
Post a Comment