CONDONATION OF DELAY BY CENTRAL
GOVERNMENT IN CERTAIN CASES
(Section 460 of the Companies Act, 2013)
INTRODUCTION
As per section 460 of the
Companies Act, 2013 (“the Act”),
1.
Where any application required to be made to the
Central Government, and
2.
Where any document required to be filed with the
Registrar
is not filed
within the time, the Central Government may, for reasons to be recorded in
writing, condone the delay.
Please Note that
this section applies mostly in case of non-filing of Board resolution or
agreement or special resolution, as per section 117 read with section 179 of
the Companies Act, 2013 or the wherever written in the Act for passing and
filing Board Resolution or Special Resolution, within the time prescribed in
that section or with additional fee within the time prescribed under section
403.
Clarification
& Penalty for default:
As per section
117 of the Companies Act, 2013, Board resolution or agreement or Special
Resolution shall be filed within 30 days of passing the same and also can be
filed with the additional fees within 270 days after expiry of 30 days period.
So, a resolution
or agreement can be filed within 300 days but if not filed within the 300 days
then the Company shall be punishable with fine which shall not be less than Rs.
5 Lakh but which may extend to Rs. 25 Lakh and Every officer of the Company who
is in default, including liquidator of the Company, shall be punishable with
fine which shall not be less than Rs. 1 lakh but which may extend to Rs. 5
Lakh.
Resolution need to be filed by Every
Company
(Section 117 of the Companies Act, 2013)
1.
Special resolutions
2.
Resolutions which have been agreed to by all the
members of a company, but which, if not so agreed to, would not have been effective
for their purpose unless they had been passed as special resolutions
3.
any resolution of the Board of Directors of a company
or agreement executed by a company, relating to the appointment, re-appointment
or renewal of the appointment, or variation of the terms of appointment, of a
managing director
4.
resolutions or agreements which have been agreed to by
any class of members but which, if not so agreed to, would not have been
effective for their purpose unless they had been passed by a specified majority
or otherwise in some particular manner; and all resolutions or agreements which
effectively bind such class of members though not agreed to by all those
members;
5.
resolutions passed by a company according consent to
the exercise by its Board of directors of any of the powers under clause (a) and clause (c) of sub-section (1) of section 180;
a.
as per section 180(1)(a) : to sell, lease or otherwise dispose of the whole or substantially the
whole of the undertaking of the company or where the company owns more than one
undertaking, of the whole or substantially the whole of any of such
undertakings.
b.
as per section 180(a)(c)
: to borrow money, where the money
to be borrowed, together with the money already borrowed by the company will
exceed aggregate of its paid-up share capital and free reserves, apart from
temporary loans obtained from the company’s bankers in the ordinary course of
business.
6.
Resolutions requiring a company to be wound up
voluntarily passed in pursuance of section
59 of the Insolvency and Bankruptcy Code, 2016
7.
Any other resolution or agreement as may be prescribed
and placed in the public domain.
Resolution need to be filed by every
company except Private Limited Company
As per
section 179 of the Companies Act, 2013, Board of Directors of a company shall
exercise the following powers on behalf of the company by means of resolutions
passed at meetings of the Board:
1.
to make calls on shareholders in respect of money
unpaid on their shares
3.
to issue securities, including debentures, whether in
or outside India
4.
to borrow monies
5.
to invest the funds of the company
6.
to grant loans or give guarantee or provide security in
respect of loans
7.
to approve financial statement and the Board’s report
8.
to diversify the business of the company
9.
to approve amalgamation, merger or reconstruction
10. to
take over a company or acquire a controlling or substantial stake in another
company
11. to
make political contributions
12. to
appoint or remove Key Managerial Personnel (KMP)
13. to
appoint internal auditors and secretarial auditors
PROCEDURE
The
application for Condonation of delay shall be filed with the Central Government
in e-Form
CG-1 along with the fee and along with the following
attachments:
1.
Document for which company is making application to condone
the delay in filing.
2. Certified true copy of the Board Resolution authorizing
for filing the application and appointing authorized representative, if any.
3.
Petition or Application with reasons for delay and
relief sought
4.
Affidavit verifying the petition by the director of the
company authorized for the same
5.
Memorandum of Appearance by the Authorized
representative appointed for the same
6.
Letter of Authorization (In case of authorized
representative of a foreign company)
7.
Other document, if any.
The order
passed by the Central Government shall be filed with the Registrar in e-Form
INC-28 along with the fee and as per the conditions stipulated
in the said order.
After filing the
order in e-form INC-28 to the Registrar, file the respective document in the
prescribed form i.e. e-form MGT-14.
Contact Details:
VISHAL SHARMA
Company Secretary
Mob: 9716763754
Email: csvishalpbs@gmail.com
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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.
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