Relief to Defaulting Companies and

not to Strike off companies or its Directors Yet !!!!

AMITA DESAI & CO1

Views expressed are of my own and this presentation is based

on my understanding of the General Circular no. 16/2017

Several issues relating to CODS Scheme requires clarity

AMITA DESAI & CO2

AMITA DESAI & CO 3

AMITA DESAI & CO4

5AMITA DESAI & CO

1.The law has changed and the flexibility in filing tax returns hasbeen reduced.

2. Now, one has to file ITR for FY 2015-16 & 2016-17 by 31March, 2018 otherwise one may face scrutiny and penalty.After 31 March , 2018 you cannot file ITR for earlier FY andyou may loose out some benefit .

AMITA DESAI & CO 6

Section Particular

A Responsibility of the Co and its Director in India

B Provisions in other Countries

C Powers of SEBID MCA ActionE Provisions of the ActF Report of the CLCG MCA ----CODS 2018 H Options for Struck Off CompaniesI. Clarification required

AMITA DESAI & CO 7

1. One of the responsibility of Directors is to ensure the

Compliance of all applicable laws by the Company as they

are at the helm of the affairs of the Company.

2. Director shall exercise his duties with due and reasonable

care, if fails to do so it may lead to “Disqualification”

3. Director shall intimate his Disqualification, if any, by

submitting Form DIR 8 Pursuant to Section 164(2) and rule

14(1)

8AMITA DESAI & CO

Responsibility of Company and its Director in India

Section 137 & 92 of CA 2013

Companies Registered in India require to file annually

atleast (i) Annual Financial Statements (FS) and

Annual Return (AR) with ROC, otherwise the

Company and Officer in Default shall be punishable

with fine and imprisonment.

9AMITA DESAI & CO

Upon Strike Off : Section 248 (6)

ROC takes undertaking of Director in respect of realization of all

amount due to the Company and for the payment or discharge

of its liabilities and obligations by the Company.

Upon Dissolution : Section 248 (7)

Even after dissolution of the Company, Directors and

Shareholders of the Company continues and may be enforced as

if the Company had NOT been dissolved

AMITA DESAI & CO10

Section 248(8)

NCLT has power to order for winding up of

the Company whose name has been struck

off from the register of RoC .

AMITA DESAI & CO11

Section 250 provides for effect of strike off

Certificate of Incorporation of the Company shall bedeemed to be cancelled

However the power and obligation of the Company shallcontinue for realizing and payment of liabilities and dues.

STRIKE OFF ≠ DISSOLUTION OF LIABILITY

AMITA DESAI & CO12

AMITA DESAI & CO 13

In UK , Directors can be ‘disqualified’ if they don’t meet legal

responsibilities.

Anyone can report a company director’s conduct as being ‘unfit’.

‘Unfit conduct’ includes:

• allowing a company to continue trading when it can’t pay its debts;

• not keeping proper company accounting records;

• not sending accounts and returns to Companies House;

• not paying tax owed by the company;

• using company money or assets for personal benefit

14AMITA DESAI & CO

United Kingdom (UK)

Consequences of disqualification ?

Director may be disqualified for upto 15 years.

If disqualified Director cannot:

be a director of any company registered in the UK or an

overseas Company that has connections with the UK.

be involved in forming, marketing or running a Company.

15AMITA DESAI & CO

United Kingdom (UK)

Director could be fined or sent to prison for up to 2 years if

he breaks the terms of the disqualification

Director can be prosecuted and become personally liable for

the company’s debts if he carries out company’s business on

the instructions of someone who’s disqualified.

16AMITA DESAI & CO

Disqualification under Section 155 of the Singapore

Companies Act

A Director will be disqualified if he is convicted of at

least 3 offences related to required filings with, delivery of

documents or giving of notice to, the ROC within a period

of 5 years.

17AMITA DESAI & CO

Even though the Director will be disqualified

for 5 years from the date of his last conviction

in Court, he can apply to the High Court for

permission to act as a director during his

disqualification period.

18AMITA DESAI & CO

Section 11 of the SEBI Act, 1992, empowers the SEBI to

restrain persons who according to the SEBI has been

indulging in insider trading or fraudulent and unfair

trade practices relating to securities market, from

accessing the securities market and to buy, sell or deal in

securities for any period as SEBI deem fit.

19AMITA DESAI & CO

On 14 August 2017, SEBI has given directive to stock exchanges

to initiate action against 331 suspect shell companies and ban

them from trading.

BSE and NSE moved 162 and 48 companies, respectively,

into Stage-VI of the Graded -VI of the Graded Surveillance

Measure (GSM), implying these stocks would not be

available for active trading.

20AMITA DESAI & CO

Article No. 14 and 19 of the Constitution of India, gives to its citizens :

Right of Equality and

Right to Practice any profession or to carry on any occupation,

trade or business, to its citizen.

However Article 19 (6) states that nothing in sub-clause 19 (1) (g) shall affect the

operation of any existing law.

21AMITA DESAI & CO

Section 248 (1) and (5) of CA 2013 , gives power to ROC

on having reasonable cause to believe, to Strike off the

name of a Company from the register of Companies.

As per Rule 3 of Companies (Removal of Names of

Companies from the Register of Companies) Rules, 2016

ROC cannot Strike of certain categories of Companies.

22AMITA DESAI & CO

1. Listed Companies;

2. Delisted Companies;

3. Vanishing Companies;

4. Companies where inspection or investigations are pending in

the Court;

5. Companies where Notice u/s Section 206 to 208 is pending

23AMITA DESAI & CO

6. Companies against which prosecution for an offence is pending;

7. Companies whose application for compounding is pending

8. Companies which have accepted public deposits which are either

outstanding or the Company is in default in repayment of the same

9. Companies whose charges are pending for satisfaction and

10.Companies registered under Section 25/ 8 of the Companies Act,

1956 /2013

24AMITA DESAI & CO

1. CLSS 2014: On 15 August 2014 , CLSS 2014 notified : MCA had

provided one time opportunity for condoning the delay

in filing Annual Documents in CLSS 2014 (and

amendment) during 15 August 2014 to 15 November

2014.

2. Section 248 (1) :

Notice of intention

In March, 2017, Notice by ROC to all companies

informing his Intention to Strike Off the name of the

Company

3. Section 248 (5) :

Notice of Strike Off

In June, 2017, Notice by ROC cancelling / strike off

name of approx 210,000 defaulting Companies.

4. Section 164:

Disqualification of

Directors:

In September, 2017, MCA took bold step & identified

309,614 Directors associated with Defaulting Companies

and barred them from accessing the online registry and

DINs were deactivated.

25AMITA DESAI & CO

Reason for MCA to Strike Off

To clean up the database and system of Registrar

To support Government’s initiative of Ease of doing business

To identify and strike off of Shell Companies

To make demonetization more effective

To control the Money Laundering and black money

To prevent misuse of corporate structure by shell companies

for various illegal purposes.

26AMITA DESAI & CO

Reaction on Action of MCA of Disqualifiying

approx 3 Lac Directors

Industry, Corporate Houses and Business man had never

expected such action from MCA which is harsh to debar them.

Representation were received from all seeking an opportunity

for compliances.

Many had filed Writ Petitions before the High courts of various

States , challenging the action of MCA as unconstitutional.

27AMITA DESAI & CO

Article 226 of Constitution of India gives right to any citizen

to file Petition for infringement of Fundamental Rights

conferred under Article 14 and Article 19 (1) (g).

Writ of CERTIORAR--- Higher court to compel the inferior

court to pass the record of the proceedings

Writ of MANDAMUS – Act of infringement of rights by any

Government Authority ( RoC)

AMITA DESAI & CO 28

1. Retrospective Application of Section 164

2. Disqualification made effective from an earlier date

3.No opportunity of being heard granted to the

disqualified director

4. Rights of third party Companies affected for no

default of theirs and without hearing

5. No other remedy available to the disqualified

Directors.

AMITA DESAI &CO.

29

Hon’ble Madras High Court has granted interim stay and Order RoC to

stay disqualification of Directors who had filed Writ Petition.

(BhagvanDas DhananjayaDas Vs UoI)

Hon’ble Delhi High Court has also granted interim stay and Order RoC to

stay disqualification of Directors who had filed Writ Petition

(Shikha Pahuja & Ors vs. MCA)

30AMITA DESAI & CO

Hon’ble Bombay HC on October 12, 2017 gave

following clarification:

a) The effect of the provision of Section 167 (2) (a) is

not retrospective;

b) Applicant may file DIR-10;

c) ROC/ MCA can take appropriate actions which will

be independent of the Petition

AMITA DESAI & CO 31

Bombay High Court has passed an order dated on

March 22, 2018 w.r.t. Restoration of the name of the

company, Availing the benefits of CODS - 2018 scheme

and Removal of disqualification of directors is based on

the judgment passed by the Delhi High Court dated on

March 06,2018 in the case of Sandeep Jain & anr. Vs.

Union of India & ors. W.P.(C)No.2051 of 2018,

Hon’ble Bombay HC passed an order.

AMITA DESAI & CO 32

Hon’ble Delhi HC on December 21, 2017 in the matter of Raman Nada Vs UOI

has passed the following Orders:

a) Petitioner may file all the requisite returns in relation to the

Company to avail the CODS – 2018 ;

b) Necessary resolution for voluntarily striking off may be filed

U/S 248(2);

c) Petitioner to make a necessary application under CODS- 2018

alongwith the requisite charges;

d) Offline submission allowed to be made to ROC.

33AMITA DESAI & CO

Hon’ble Delhi HC on January 10, 2018 in the matter of

Prem Prakash Sethi Vs UOI has passed the following Orders:

a) Petitioner may file all the requisite returns in relation to the

Company to avail the CODS – 2018;

b) Petitioner to make a necessary application under CODS- 2018 along

with the requisite charges.

c) Online submission to be made to ROC.

34AMITA DESAI & CO

Hon’ble Delhi HC on February 26, 2018 in the matter ofNandlal Bhatia Vs UOI has passed the following Orders:

1. Directives contained in Sandeep Singh (supra) will apply mutatismutandis to the petitioners as well;

2. The Petitioners will take requisite steps under Section 248 (2) of theCompanies Act, 2013 for voluntary strike off;

3. The operation of the impugned list Disqualified Directors insofar asthe petitioners were concerned was stayed till 31.3.2018;

4. The ROC directed to activate the Petitioners’ DIN and DSC.Disclaimer

AMITA DESAI & CO 35

The CA 1956

Vs.

The CA 2013

AMITA DESAI & CO 36

274 (1) (g) CA 1956 164 & 167 CA 2013

Applicable to Public Companies. Applicable to all Companies

It did not result in vacation of

office u/s 283.

It does result in vacation of office

u/s 167

37AMITA DESAI & CO

As CA, 2013 came into effect from April 01, 2014,

hence it was understood that section 164 (2) (a) shall be effective

only after 3 years of continuous default in filing of B/s and A/r,

that is for FY 2014-15, 2015-16 and 2016-17, for which the last

date of filing was October 30, 2017. Hence disqualification will

start from November 01, 2017.

38AMITA DESAI & CO

MCA vide Circular No. 41/2014 has clarified that in case of

Company who have filed their Balance Sheet and Annual

Return on or after 01.04.2014 but prior to launch of CLSS

2014, disqualification u/s 164(2) (a) shall apply only for the

prospective defaults , if any, by such companies.

This includes filing for FY 2013-14 which is filed after

01.04.2014

39AMITA DESAI & CO

Vacate their office as Director in all companies

-Sec. 167(1)(a)

not eligible to be re-appointed in the defaulting Company

or appointed as a director in another company for a period

of 5 years, from the date on which the defaulting company

failed to file said documents.

40AMITA DESAI & CO

Section 164: Disqualification for appointment of Directors

Section 167: Vacation of Office of Director

Section 248 : Power of Registrar to remove name of company

Section 252: Appeal to Tribunal

Section 403: Fee for Filling

Section 459: Powers of CG or Tribunal to accord approval.

Section 460 (b): Condonation of delay by CG

41AMITA DESAI & CO

Section 164 mentions the primary requirements that who may

or may not be appointed to be a director.

AND

the company may in its Articles provide additional grounds for

ineligibility or disqualification, or additional minimum

qualifications that should be met by its directors.

42AMITA DESAI & CO

Section 164 (1) provides for disqualification which are incurred by a

Director in his Personal capacity like, If he is of :

unsound mind ,

undischarged insolvent,

adjudicated as an insolvent

convicted by a court of any offence,

court order disqualifying him,

failed to pay any calls in respect of shares ,

convicted for offence of dealing with related party transactions,

not having DIN etc.

43AMITA DESAI & CO

Section 164 (2)--- No person who is or has been a director of a company

which—

(a) has not filed financial statements or annual returns for any continuous period of

three financial years; or

(b) has failed to repay the deposits accepted by it or pay interest thereon or to redeem

any debentures on the due date or pay interest due thereon or pay any dividend

declared and such failure to pay or redeem continues for one year or more,

shall be eligible to be re-appointed as a director of that company or appointed in other

company for a period of five years from the date on which the said company fails to do so.

44AMITA DESAI & CO

As per Sec 164 (2) (a) – Not Personal But Company

defaulted in filing the Annual Financial Statements or

Annul Return for a continuous period of 3 years

Auditors also need to report u/s 143 (3)(g) about

Disqualification of Directors u/s 164(2).

45AMITA DESAI & CO

Sec. 167 (1)The office of a director shall become

vacant in case —

(a) he incurs any of the disqualifications specified in

section 164;

46AMITA DESAI & CO

Proviso added to Section 164 (2),which reads as follows:

“Provided that where a person is appointed as a director of a

company which is in default of clause (a) or clause (b)

he shall not incur the disqualification for a period of six

months from the date of his appointment.”

Immunity is given to new appointee Director, otherwise

from day One he is disqualified

47AMITA DESAI & CO

Under Section 167 (1)(a), the following proviso is inserted

"Provided that where he incurs disqualification under sub-

section (2) of section 164, the office of the director shall

become vacant in all the companies, other than the company

which is in default under that sub-section."

He shall continue to be director of defaulting company evenafter default.

48AMITA DESAI & CO

CLC was set up on 4th June 2015 to make recommendation to the

Government on issues arising from the implementation of CA 2013

In the Report of the CLC, issued in February 2016, it has been

discussed as follow with respect to the stringent provision of

disqualification and vacation of Director.

49AMITA DESAI & CO

CLC Report had a mention that Section 164(1) provides for

disqualifications which are incurred by a director in his personal

capacity, and Section 164(2) lists out disqualifications related to the

Company

In this regard, the CLC recommended that the vacancy of an office

should be triggered only where a disqualification is incurred in a

personal capacity and therefore, the scope of Section 167(1)(a)

should be limited to only disqualifications under Section 164(1).

50AMITA DESAI & CO

The CLC acknowledged that this Section created a

paradoxical situation, as the office of all the directors

in a Board would become vacant where they are

disqualified under Section 164(2), and

A new person could not be appointed as a director as

they would also attract such a disqualification.

51AMITA DESAI & CO

The CLC also recommended that a disqualification under

Section 164(2) be only applicable to a person who was a

director at the time of the non-compliance, and in case of a

continuing non-compliance, there should be a period of 6

months time allowed for a new Director to make the company

compliant.

(Now added in the Companies Amendment Act 2017)

52AMITA DESAI & CO

G. MCA ----To find a solution for

updating their Data –CODS 2018

53AMITA DESAI & CO

CODS 2018 - A golden opportunity

For

Defaulting Companies to rectify the default

Not For

Disqualified Directors

54AMITA DESAI & CO

Powers of MCA :

Sections 403 – Fee for Filing

Section 459 – Powers of CG or Tribunal

Section 460 – Condonation of Delay

Duration of CODS : January 1, 2018 to March 31, 2018

Whether last date of filing e-form CODS – 2018 will also

be March 31, 2018.

55AMITA DESAI & CO

Company: It means a Company as defined in section 2(20) of the Companies

Act, 2013.

Foreign companies having BO or LO are not covered : As per Sec. 381 & 384

Foreign Companies need to file B/s & A/r in Form -FC-3 & FC-4 which is to be

certified by authorised Signatory and not Director.

Defaulting Companies: It means a company which has not filed its FS or AR as

required under the Act and the Rules made there under for a continuous period of 3

years.

Struck Off Companies are not covered

56AMITA DESAI & CO

Defaulting Companies & not Struck Off by the ROC

Continuous period of 3 years

Annual Return Financial Statements

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Overdue Documents: FS or AR or other associated

documents, as applicable, in the case of a

defaulting company and refer to documents

mentioned in paragraph 5 of CODS

What is to be understood of “other associated

documents” under the definition of Overdue

Documents?

58AMITA DESAI & CO

Ambiguity in Def. and Para 5 for Overdue Documents: Definition of

Overdue Documents read as other Associated Documents and ref Para 5

and in Para 5 it reads that only B/s , A/r, Secretarial Audit Report and Appt

of Auditors.

Without filing various other relevant / associated forms like PAS 3, DIR 13,

SH 7 etc, technically the company may not be able to file B/s and A/r. Hence

MCA should allow such other associated Documents also in Para 5.

59AMITA DESAI & CO

It is applicable to all Defaulting Companies and

not to companies struck off u/s 248 (5) .

It is applicable for Overdue Documents which

were due for filing till 30th June 2017.

Can Active Companies file other documents under

CODS?

60AMITA DESAI & CO

What is the ‘relevance of 30th June 2017’??

For the annual filing documents for FY 2015-16 ,

assuming AGM was on 30th Sept 2016, the last date of

filing as per Section 403 of the Act, 2013 is July 27,

2017 ( 30 Plus 270 Days)

61AMITA DESAI & CO

1. DIN ACTIVATION BY MCA

(Temporary activation of DIN DURING VALIDITY of CODS

2018.) Re-activation has commenced from January 12, 2018

2. FILING OF PENDING E-FROM

The Defaulting Company shall file the Overdue Documents

in respective form with Additional Fees i.e. as per section 403

3. APPLICATION FOR CONDONATION

After filling documents in Step 2 Company shall seek condonation

of delay by filling of e-form E-CODS 2018 with fees Rs. 30,000/- 62AMITA DESAI & CO

(1) In the case of defaulting companies whose names have not been

removed from register of companies,-

i) The DINs of the concerned disqualified directors de-activated at

present, shall be temporarily activated during the validity of

the scheme to enable them to file the overdue documents.

ii) The defaulting company shall file the overdue documents in the

respective prescribed e -Forms paying the statutory filing fee and

additional fee payable as per section 403 of the Act read with

Companies (Registration Offices and fee) Rules, 2014 for filing

these overdue documents

AMITA DESAI & CO 63

(iii) The defaulting company after filing documents under

this scheme, shall seek condonation of delay by filing

form e-CODS attached to the scheme online on the

MCA21 portal. The fee for filing application e

form CODS is Rs.30,000/- (Rupees Thirty Thousand

only).

AMITA DESAI & CO 64

iv. The DINs of Director’s associated with the Defaulting

Companies that have not filed their Overdue Documents and

E-form CODS-2018, and these are not taken on record in the

MCA21 registry and are still found to be disqualified on the

conclusion of the Scheme in terms of section 164(2)(a) r/w

167(1)(a) of the Act shall be liable to be deactivated on

expiry of the scheme period.

65AMITA DESAI & CO

v. In the event of defaulting companies whose names have been

removed from the register of companies under section 248 of the

Act and which have filed applications for revival under section

252 of the Act up to the date of this scheme, the Director's

DIN shall be re-activated only NCLT order of revival

subject to the company having filing of all overdue documents.

AMITA DESAI & CO

66

1. Ambiguity of period mentioned in Pt 4(i) (iv) and (v) ---

“during the validity, on conclusion and upto the date of

scheme”

2. CODS 2018 does not have any mention of permanent

activation of DIN of Directors after filing all Overdue

Documents by the Company

67AMITA DESAI & CO

3. Whether DIR 10 to be filed in e-Form GLN 1 or by simply filing

e-Form CODS, the disqualification will be removed by RoC?

4. Company has made application for revival u/s 252 upto the date of

this Scheme but if NCLT Order comes after the closure of the

Scheme, will the Company be allowed to file Overdue Documents

under CODS ?

AMITA DESAI & CO 68

SR.

NO.

FORM DESCRIPTION

1 20 B / MGT-7 Annual Return by a Company having

Share capital

2 21 A/ MGT-7 Annual Return by a Company not

having Share capital

3 23 AC, 23 ACA, 23AC-

XBRL, 23ACA-XBRL,

AOC-4, AOC-4 (CFS),

AOC (XBRL) and

AOC-4 (non XBRL)

Forms for filing Balance sheet/

Financial Statements and Profit and

Loss Account

4 66 Form for submission of Compliance

Certificate with the Registrar

5 23B/ ADT-1 Form for intimation for Appointment of

Auditors

CODS 2018 shall not apply to the filing of documents other than following documents

69

Hanging Sword :

ROC can take action under section 167 (2) of the

Act or civil and criminal liabilities, if any, of such

disqualified directors during the period they

remain disqualified.

70AMITA DESAI & CO

1. After filing all Overdue Documents under CODS, can Directors

Disqualification is automaticlly considered to be removed ? And

2. Can he act as Director in any other company after filing all overdue

documents or whether it will attract penal action u/s 167 (2) of the Act from

RoC as para 6 of CODS 2018 ? ---- MCA need to clarify it.

71AMITA DESAI & CO

ROC shall take necessary actions :

1. Will he initiate prosecution u/s. 167(2) against earlier Directors ? Or

against newly appointed Directors u/s 167 (3) also? ( CAA 2017) , as

Section 164 (2) reads , No Person who is or has been director of such

defaulting company

2. Can company file compounding application u/s 441 for the action

taken by RoC after CODS ? Who will sign such application?

72AMITA DESAI & CO

e-form CODS 2018 was made available on MCA website from

February 26, 2018

In e-form CODS 2018 Maximum 20 SRNs can be entered

the e-form CODS will be taken on record on Straight through

Process (STP)

MCA had requested the Defaulting Companies to file all Overdue

Documents without waiting for availability of the e-form CODS form.

73AMITA DESAI & CO

SRNs of the Overdue Documents filed by the Defaulting Company

Details of any appeal(s) filed against any notice issued or complaint filed

before the competent Court for documents filed under CODS ;

Details of any prosecution(s) is pending in court against the Company

and its officers in respect of documents filed under CODS; &

Details of any Director(s) of the Company is declared as proclaimed

offender or facing criminal case(s) for economic offences.

74AMITA DESAI & CO

Indirectly, through e-Form CODS , MCA will be identifying

the Directors who are declared as proclaimed offender or

facing criminal cases for economic offences

The overdue documents up to June 30, 2017, can be filed

under this scheme, however filing of B/s and A/r for

FY 2016-17 shall not be covered under CODS-2018

75AMITA DESAI & CO

1. File Application before NCLT u/s 252 during the validity of

CODS 2018 (assumed as Pt 4 (v) of CODS 2018 mention upto

the date of this scheme) and

2. Obtain NCLT Order u/s 252 ( NCLT order revival with

penalty of 10K to 200K as the Bench decides)

3. File all Overdue Documents within time mentioned in Order

4. Assume that DINs of Directors shall be re-activated

76AMITA DESAI & CO

HC - Writ Petition

OR

NCLAT - Appeal against Order of NCLT

77AMITA DESAI & CO

1. How disqualification of Directors can be removed for

Directors of a Struck Off company (which is Defaulted in

filing) which has neither done any activity nor have

opened any Bank account and intend to close the

company or its restoration application is rejected by

NCLT?---- Can they get one more chance ?

78AMITA DESAI & CO

2. MCA to clarify that companies which are struck off can

still file the Application for its revival u/s 252 of the Act

during the validity of the scheme.

And if the Order of NCLT will be after the closure of

CODS , RoC will allow such companies to file Overdue

Documents?

AMITA DESAI & CO 79

3.Can Active Companies also file any other

document with DIN of Defaulting Directors

which is now activated by RoC– in view of

section 167 (2) read with Para 6 of CODS

4. Is Form DIR 10 required to be filed or not?

80AMITA DESAI & CO

5. What is the fate of Shareholders / Creditors of

Struck Off Companies if, assets are still there or Bank

charges are subsisting ?

6. What is the fate of Companies whose all Shareholders

are Corporate entities, which all are now Struck Off

?

AMITA DESAI & CO 81

7. What will be the status of Additional Directors of such

Defaulting Companies or Struck Off Companies, who had

resigned immediately after their appointment or their

appointment were not regularized by Shareholders and

the Company had not filed Form 32 as per CA 1956 for

resignation and now their names are shown in MCA as

Director and they are disqualified by RoC ?

82AMITA DESAI & CO

8. Whether extension of CODS 2018 be made due to –

a) Delay in temporarily activating DIN of Defaulting Companies

b) Delay in making e-Form CODS 2018 available till 20.02.18

And

c) Delay in obtaining NCLT Orders u/s 252.

9. Allow to file Other Associated Documents – MCA to allow all other

relevant Forms like SH 7, DIR 12, INC 22 etc .

83AMITA DESAI & CO

10. Whether ROC will make an Application to NCLT as

per 2nd proviso of 252 (1) to restore the Companies

which he has inadvertently struck off?

11. No action u/s 167 (2) will be taken by MCA against

the Directors of the Defaulting Companies for their

using digital signature and filing Overdue Documents

84AMITA DESAI & CO

12. MCA to clarify that Form DIR 8 given by Directors of

Defaulting Companies till 30th Sept 2017 and Auditors have

taken it on record in B/s for FY 2016-17 shall be considered

as valid.

13. Whether Auditors ( CA and CS ) need to clarify such

details in annual filing ?

85AMITA DESAI & CO

14.What is to be done for inactive and

dormant Struck Off Companies , who

had never done any business or prepared

any FS , can such companies be allowed to

make application u/s 248 (2), without filing

prior period Overdue Documents.?

AMITA DESAI & CO 86

15. Situation where Form DIN - 3 was not filed intimating DIN and such

Company is Struck Off but Directors in such companies are

not yet disqualified

Should these Director’s be considered as disqualified

Do they require to make application to NCLT u/s 252 and revive the

company and then file application u/s 248 (2) for voluntary strike off of

the Name

87AMITA DESAI & CO

(a)Can struck off companies itself or aggrieved persons make application to

NCLT u/s 252 after the implementation of CODS or upto the date of the

Scheme ?

(b) What about struck off companies which had never done any operations :

We suggest that such companies be allowed to make an Application to

NCLT u/s 252 and NCLT gives Direction to RoC to first revive the

company and allow it to file application u/s 248 (2) for voluntary strike off

and remove the disqualification of Directors

88AMITA DESAI & CO

B Limited

(Active)

Can Continue as Non

Disqualified Directors

Can not continue u/s

167 (1) (a) and vacate

his office

AMITA DESAI & CO89

Mr. Y Mr. XDirectors

A Limited

(Defaulting)

If CODS availed and

default status is removed

If CODS not availed and

Default is continued Mr. Y Mr. X

Mr. Y Mr. X

B Limited

(Active)

Can Continue as Non

Disqualified Directors

Can not continue u/s

167 (1) (a)

AMITA DESAI & CO90

Mr. Y Mr. XDirectors

A Limited

(Struck Off)

U/s 252 if revival order

passed by NCLT

U/s 252 revival order

rejected or not obtained Mr. Y Mr. X

Mr. Y Mr. X

B Limited

(Active)

Directors are

disqualified u/s 167

(1) (a) although their

names are not in the

disqualification list

AMITA DESAI & CO91

Mr. Y Mr. XDirectorsA Limited

(Struck Off)I

DIR 3 not filed

hence Directors

are not

Disqualified

Mr. Y Mr. X

SHAREHOLDERS

Company 1 and

Company 2 are

Struck off

AMITA DESAI & CO92

A Limited

(Defaulting Co.)

has 2 corporate

shareholders

What is the fate of such Defaulting Company?

QUESTIONS

93AMITA DESAI & CO

94AMITA DESAI & CO

Amita Desai & Co.

Company Secretaries

Mumbai- India

Tel 91 22 2684 5920/21/23

Mobile: 9820177691

Email : info@amitadesai.com

Website : www.amitadesai.com

95AMITA DESAI & CO