Vishal Mehta & Co., Company Secretaries

16/02/2018

Insolvency and Bankruptcy Code - A Move towards sinking of Depositor's Hard Earned Money ???

Go through an extract of few articles of Gujarat Samachar dated 16/02/2018

31/01/2018

CRITICAL ASPECTS ON COMPANY FORMATION

Recently Ministry of Corporate Affairs has amended Companies Incorporation Rules so as to facilitate name of Companies using the new web portal RUN (Reserve Unique Name) Service and Zero Fee Incorporation.
It was supposed to be welcome move by Ministry to introduce certain changes in the name of “ease of doing business” and to promote “startup company” as it introduced zero fee Incorporation.
Now let’s analyze these two important changes and its impact in real terms.

1: RUN – A WELCOME MOVE OR FLOP SHOW

NAME is a precious matter for all individuals, entities and corporate, ease of doing business can only come if an applicant of Company gets his desired NAME based upon apparent availability of record of Ministry.
Ministry has introduced this service in place of “Form INC-1” in pursuance of Rule 9 of Companies Incorporation Amendment Rules, 2018 in relation to reservation of name of the Company, it will be easier to apply and reserve the name without taking DIN (Director Identification Number) and Digital Signature which was mandatory in Form INC-1, cost of DSC is reduced only for the time being up to the level of name application and approval and cost of DIN a is definitely reduced although there is no change in cost of Form INC-1 and RUN Service as ministry charges Rupees one thousand and to be incurred by an Applicant.
In RUN Service, one can’t get the name of the Company which is apparently available, it is to be checked in line with so called rules and regulations, Ministry has played a very smart move to remove an opportunity of “One Resubmission” which was earlier allowed in “Form INC-1”, meaning thereby applicant is not granted an opportunity to explain and present his case for the second time although name may be genuinely applied and becomes eligible to get approved after pure compliance of name guidelines and companies incorporation as well as trademark rules, it indirectly gives supreme power to CRC (Central Registration Centre) officials to approve or reject particular name in the way they may deem fit.
Companies Incorporation as well as Trademark Rules are framed in such a complex way that process of applying and approving Company names becomes like court cases where justice can finally be given after giving reasonable opportunity of being heard by both the parties, in the present scenario, an applicant is not given an opportunity of being heard even after spending a cost of one thousand rupees behind name, in short an applicant is completely prejudiced by the Ministry, so even “One Resubmission” opportunity which was given earlier was not enough and Ministry was expected to work on it for the sake of “ease of doing business”, however it again turned out in complete favor of Ministry, rules of RUN Service also seems to violate Article No. 14 of the Constitution of India which is Right of Equality before law, equal protection of law should be given to an applicant of name and CRC (Ministry).
Time has indeed come to make the Companies Incorporation Rules and Trademark Rules more flexible, especially a complex term of “Resemblance of Name”, so that process can’t be like Court Cases and name becomes easily approved if apparently available on record, otherwise an equal opportunity of protection of law must be given to both the parties.

2: ZERO FEE INCORPORATION

Incorporation of Company starts from taking Digital Signature to the level of printing of MOA and AOA and may be many more so zero Fee Incorporation as envisaged by the Ministry is not actually a zero fee, it may reduce or enhance your earlier incorporation cost subject to proper name application and its availability.
Cost of Company Formation after Name Approval will be reduced to great extent and will be limited to paying of relevant stamp duties, PAN, TAN and Professional Fees, however, cost of applying a name of the Company may increase as No Resubmission opportunity is granted, rigid or particular name of an applicant may also change or vanish plan, idea and motive to form a Company.

21/05/2017

03/02/2017

YOU CAN REFER PETITION WORDINGS AS UNDER AND FURTHER REQUESTED TO SIGN THE SAME BY CLICKING ON THIS LINK

https://www.change.org/p/change-in-llp-act-mca-technical-issues?recruiter=675463445&utm_source=share_petition&utm_medium=copylink

AND FOLLOWING MINOR PROCEDURES:

YOUR SUPPORT ONLY CAN BRING THE CHANGE, ITS "WE" ONLY THAT CAN BRING THE CHANGE SO PLEASE WAKE UP AND TAKE UP THIS AGENDA TO THE MINISTRY LEVEL.

1: Filing of LLP Form No. 3 is not compulsory, if no agreement is executed:
Section 23(1) of The Limited Liability Partnership (LLP) Act, 2008 mandates LLP and its partners to be governed by LLP Agreement.
Section 23(2) of the LLP Act, 2008 mandates LLP to file agreement and changes, if any, made therein to file with the ROC in a manner as may be prescribed
Section 23(4) of the LLP Act, 2008 mandates such governance of LLP Agreement as per First Schedule in case of absence of Agreement as to any matter, First Schedule covers almost all the matters of LLP.
Based upon plain reading of the Act, as per section 23(1) it seems that LLP Partnership Agreement is mandatory for LLP, however ex*****on of the same is not mandatory as per section 23(2) as it mandates to file with ROC only when executed and changed, besides in case of absence of agreement as to any matter, section 23(4) directs to refer First Schedule for the same as such an absence can be for any or all matters.
Where as Rule 21 (1) of LLP Rules, 2009 mandates every LLP to file agreement & changes in Form No. 3 pursuant to section 23(2) of the LLP Act, 2008, here LLP Rules override the provisions of the Act, as Act mandates to file agreement only if made or executed where as Rules mandates all LLP to file same, besides Rules completely ignored provisions of section 23(4) of the LLP Act, 2008.

2: Filing of LLP Form No. 8 & 11 is not permitted due to non filing of Form No. 3:
LLP Form No. 8 is towards filing of Statement of Account and Form No. 11 is towards filing of Annual Returns, both the forms are annual forms of the LLP which made compulsory to be filed on MCA website within stipulated time as prescribed and due to its importance, filing of Form No. 8 and 11 on MCA webportal is basic right for all LLP which have been restricted by MCA due to non filing of Form No. 3.
non filing of Form No. 3 seems completely different matter altogether which should not be linked with Form 8 & 11.

3: Striking off Name of LLP is not permitted due to non filing of Form No. 3:
Striking off Name of LLP with the Registrar in LLP Form No. 24 is also not permitted due to non filing of Form No. 3, 8 and 11.
non filing of Form No. 3, 8 and 11 is completely different matter altogether which can not be linked with Form No. 24, besides Ministry is expected to give easy exit route to LLP in the same way it gives to Company.

4: Payment of Additional Fee:
As per section 69 of the LLP Act, 2008, payment of additional fee is Rs. 100/- per day in case of delay in filing of any form within stipulated time as prescribed.
every LLP are forced to file Form No. 3 within 30 days of its formation and failing which may attract additional fees, as i narrated earlier that it is not compulsory to file LLP Form No. 3 if no agreement is executed, besides additional fees of LLP Form No. 8 and 11 is also heavy if both the annual forms are not filed within prescribed time limit.
Daily additional charge of Rs. 100/- is so high as it is not affordable for all LLP, due to which, many LLP(s) became defunct as they can neither regularize their LLP nor can strike its name from the Register.
Hence, I also expect ministry to revise the act and put maximum cap on additional fees.

5: Technical Issues in Form MGT: 7 (Annual Return):
Earllier in Companies Act, it was mandatory to file Compliance Certificate in Form No. 66 with the Registrar of Companies, the same is linked with Annual Return in Companies Act, 2013 and authorize practicing company secretaries to mandatory to sign and certify the forms of the Companies other than OPC and small companies.
that mandatory signature as prescribed in section 192 of the Companies Act, 2013 is linked with mandatory digital signature in Form No. MGT-7 but that compulsion as prescribed in the Act is not working in Form MGT-7 due to technical issues and Form MGT-7 can also be filed without the signature of company secretaries.
certain technical issues seems of temporary nature as MCA may be in transition phase, however these issues gives major threat to violation of section 192 of the Companies Act, 2013.

1: Filing of LLP Form No. 3 is not compulsory, if no agreement is executed: Section 23(1) of The Limited Liability Partnership (LLP) Act, 2008 mandates LLP and its partners to be governed by LLP Agreement. Section 23(2) of the LLP Act, 2008 mandates LLP to file agreement and changes, if any, made...

30/11/2016

છેલ્લા દિવસે MCA ની વેબસાઈટ ના ધાંધિયા, અધિકારીઓની જોહુકમી

MCA નોટિફિકેશન પ્રમાણે જે કંપનીઓ ની વાર્ષિક સામાન્ય સભા ૩૦/૦૯/૨૦૧૬ ના રોજ રાખવામાં આવેલ હોય તેના વાર્ષિક ફોર્મ AOC - ૪ તેમજ MGT - ૭ ફાઈલ કરવાનો ગઈકાલે એટલે કે તા. ૨૯/૧૧/૨૦૧૬ ના રોજ છેલ્લો દિવસ હતો અને આ છેલ્લા દિવસે ઘણી બધી કંપનીઓ ના ફાઇલિંગ ની પડાપડી વચ્ચે MCA ની સેવા આખો દિવસ ખોટકાયેલી રહી પરિણામે એ બધી કંપનીઓને પાંચ ગણી પેનલટી ભોગવવાનો વારો આવ્યો.

એક કંપની સેક્રેટરી નામ ના આપવાની શરતે કહે છે કે પાંચ ગણો વધારો લેવાની લાલચ માં MCA ના અધિકારીઓએ જાણીજોઈને MCA ની website આખોદિવસ બંધ રાખી ને જેવા રાત્રે બાર વાગ્યા એવી તરત જ પાંચ ગણા ભાવ સાથે MCA ની વેબસાઈટ પૂર્વવત કરી દીધી

એક તરફ કેન્દ્ર ની મોદી સરકાર ડેમોનેટાઇસશન ની અસર થી આખા ભારત દેશ નું કાળું નાનું બહાર લાવવા માંગે છે તો બીજી તરફ મિનિસ્ટ્રી ઓફ કોર્પોરેટ અફેર્સ (MCA ) ના કહેવાતા આલા અધિકારીઓ પાંચ ગણો ભાવ વસૂલીને દેશની કંપનીઓને ખુલ્લેઆમ લૂંટવા માંગે છે.

એક્સપર્ટ ના જણાવ્યા મુજબ MCA ના અધિકારીઓ ની આ પહેલી જોહુકમી નથી એની પહેલા પણ એમને LLP નું ફોર્મ-૩ ફરજીયાત બનાવીને આવીજ ભૂલ કરેલી છે, LLP ભાગીદારી અધિનિયમ, 2008 ના વિભાગ ૨૩ ના પેટા વિભાગ ચાર પ્રમાણે જો ભાગીદારી પેઢી ના ભાગીદારી કરાર ની કોઈ પણ વસ્તુ, હક કે જવાબદારી પ્રસ્થાપિત થતી ના હોય તો એ LLP ભાગીદારી અધિનિયમ ના પ્રથમ અનુસૂચિ મુજબ નક્કી કરવામાં આવશે આમ છતાં MCA ના અધિકારીઓ ભાગીદારી કરાર ફરજીયાત બનાવીને તેને LLP ફોર્મ-૩ માં ફાઈલ કરવા મજબુર કરી રહ્યા છે જેની દિવસ ની ૧૦૦ રૂપિયા પેનલટી પ્રમાણે બહુ ઊંચી ફી આવી રહી છે તદુપરાંત LLP ના વાર્ષિક ફોર્મ ૮ અને ૧૧ પણ LLP ફોર્મ ૩ વગર ફાઈલ કરવા દેવામાં આવતા નથી જેથી કરીને LLP ના કાર્યકર્તાઓને LLP ફોર્મ ૩, ૮ અને ૧૧ નો ત્રેવડો માર પડી રહ્યો છે.

30/11/2016

STOP FILING OF YOUR ROC ANNUAL FILING FORMS WITH ADDITIONAL FEES

29/11/2016

MCA site, www.mca.gov.in not working since evening. Thousands of Company Secretaries sitting in front of their PCs to upload the forms. Changing fro firefox to explorer and so on so forth. No fruit ful results. The capability is challenged and innocent would be punished by way of additional fees ! This happens only here !! 😒😒😒God bless !! What else !

Very sorry state of affairs they stopped filing whole yesterday. After 12 midnight website working smoothly. Isn't a bad game ofvMCA ??

Home Page of MCA V2

16/11/2016

Last date for filing of Financial Statements and Annual Returns
is 29 Nov 2016

We wish to remind you that as per MCA's General Circular No: 12/2016 dated 27 Oct 2016, last date for filing of Financial Statements and Annual Returns under the Companies Act, 2013 using eforms AoC-4/AoC-4 (XBRL)/AoC-4 CFS or MGT-7 as the case may be without payment of additional fee wherever applicable is due on 29th November 2016.

We request you to file your returns at the earliest without any further delay. Please ignore this mail if you have already filed your returns successfully with MCA.