Shashank Shekhar and Associates,Company secretaries

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07/09/2017

MCA on its website has issued a public circular w.r.t Disqualification of Directors under the provisions of the Section 164(2)(a) of the Companies Act, 2013. Directors disqualified under Section 164(2)(a) of the Companies Act, 2013 and who are associated with struck off companies (S.248) are advised not to make any fresh application for Name Availability (Form INC-1), Incorporation of Companies (Form INC-7/SPICe-INC-32/URC-1/INC-12). If any of such director, attempts to file any Forms, the said Form shall be rejected summarily by the Central Registration Centre(CRC). Further, attention is drawn to the provisions of Section 7(5) and 7(6) which, inter-alia, provides that furnishing of any false or incorrect particulars of any information or suppression of any material information shall attract punishment for fraud under Section 447. Attention is also drawn to the provisions of Section 448 and 449 which provide for punishment for false statement and punishment for false evidence respectively. All stakeholders are requested to decided their next course of action accordingly

07/09/2017

MCA has issued Circular to clarify the provision w.r.t Exemption to certain unlisted public companies under the Companies (Appointment and Qualification of Directors) Rules, 2014 from the appointment of Independent Directors. The exemptions have been provided to an Unlisted Public Company which is a joint venture, a wholly owned subsidiary or a dormant Company will not be required to appoint Independent Directors through the notification dated 05/07/2017. In this regard it has been clarified that Joint venture would mean a joint arrangement, entered into in writing, whereby the parties that have joint control of the arrangement, have right to the net assets of the arrangement. Further the usage of this term is similar to that provided under Accounting Standards.

07/09/2017

In continuation of the Government’s resolve to strengthen the rules and procedures of Corporate Governance, the Government has took some major decisions to further strengthen these norms. It has been decided by the MCA that in case the Director or authorized signatory of any “struck off” company tries to unauthorizedly siphon-off money from its bank account, he/she may attract punishment of imprisonment of not less than six months extendiable to 10 years. If it is found that the fraud involves public interest, the punishment shall not be less than 3 years and fine may also be imposed which would be three times the amount involved. Consequent to instructions issued by Department of Financial Services (DoFS) to all the Banks on 5th September 2017, the Directors (ex-) or their authorized signatories had been restricted from operating the Bank accounts of such companies and they cannot siphon off money from the accounts of these “struck off” companies. However, even prior to such action, if they have siphoned off any money, strict action would still be taken against them. Further, it was also decided that the Directors of such shell companies which have not filed returns for three or more years, will be disqualified from being appointed in any other company as Director and it is expected that as a result of this exercise, at least two to three lakh of such disqualified Directors shall get debarred.

05/09/2017

Directors disqualified under Section 164(2)(a) of the Companies Act, 2013 and who are associated with struck off companies (S.248) are advised not to make any application for Name Availability(INC-1), Incorporation of Companies (INC-7/SPICe-INC-32/URC-1/INC-12). Forms filed by such Directors shall be rejected summarily by the Central Registration Centre(CRC). Further, attention is drawn to the provisions of Section 7(5) and 7(6) which, inter-alia, provides that furnishing of any false or incorrect particulars of any information or suppression of any material information shall attract punishment for fraud under Section 447. Attention is also drawn to the provisions of Section 448 and 449 which provide for punishment for false statement and punishment for false evidence respectively.

05/09/2017

Supreme Court ruled that every person signing a cheque on behalf of a company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorised to sign the cheque on behalf of the company.

28/07/2017

The Companies (Amendment) Bill, 2016 has been passed by the Lok Sabha as Companies (Amendment) Bill, 2017 (Copy Attached) & would be referred to Rajya Sabha for consideration and passing. The Bill to further amend the Companies Act, 2013 was introduced in Lok Sabha on 16th March, 2016 whereafter it was referred to the Parliamentary Standing Committee on Finance for examination and report. The Parliamentary Standing Committee on Finance had presented its report on the Companies (Amendment) Bill, 2016 to Lok Sabha and Rajya Sabha on 7th December, 2016. The 43 amendments moved to the Companies (amendment) Bill 2016 on Thursday included one that sought to drop the earlier proposal removing layering restrictions on investment companies. Further, the changes to the Companies Act would go a long way in improving the ease of doing business in India and help the country move higher in the “ease of doing business rankings”.

28/07/2017

MCA has received requests from stakeholders to clarify the financial year(s) in respect of which the requirements of reporting under section 143(3)(i) of the Companies Act 2013 shall not apply to certain private companies as exempted through notification dated 13-06-2017, shall be applicable. MCA has clarified that exemption to private companies as provided in respect of Auditors' Report on internal financial control, shall be applicable for those audit reports in respect of financial statements pertaining to financial years commencing on or after 1stApril, 2016, which are made on or after the date of the said notification.

27/06/2017

The service tax returns are filed on half yearly basis and due dates for filing the service tax returns are 25th October for the first half of the year and 25th April for the second half of the year. As this year the GST tax regime will be implemented, all the indirect taxes will be subsumed into GST w.e.f 01-07-2017 and there will be no further applicability of service tax. Due to the said reason, there arises a need to file returns. For the 1st quarter (i.e. from 1st April,2017 to 30th June,2017) the service tax return is required to be filed upto 15th August 2017. The return needs to be filed in form ST – 3 or ST – 3C as may be applicable. Further, the service tax return which is to be filed for the period of 1st April,2017 to 30th June,2017 can be revised within 45 days of filing the original return. The service tax return filed will help in availing the input credit in the GST regime.

27/06/2017

MCA provides relaxation on auditor’s term for private cos. having paid up share capital upto 50 crore. The MCA has notified rules which may be called the Companies (Audit and Auditors) Second Amendment Rules, 2017 and shall come into force on the date of their publication in the Official Gazette. In the Rule 5 (b), for the word "twenty", the word "fifty" has been substituted.

20/06/2017

MCA vide its Notice dated June 17, 2017 has confirmed that Form DIR-5 will be deployed as an E-Form for filing purposes with effect from June 21, 2017. Stakeholders who wish to surrender their DINs are required to file this Form DIR-5 instead of it being filed as an attachment to Form RD-1. Currently Form DIR-5 is required to be filed under Rule 11 of the Rules which deals with Cancellation, Surrender or Deactivation of DIN. Form DIR-5 will be a separate E-form instead of an attachment to existing Form RD-1 w.e.f. June 21, 2017.

20/06/2017

Insolvency and Bankruptcy Board of India notifies Fast Track Insolvency Resolution Process for Corporate Persons Regulations. The Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017 which shall come into force on June 14, 2017. These regulations provide the process from initiation of insolvency resolution of eligible corporate debtors till its conclusion with approval of the resolution plan by the Adjudicating Authority. The process in these cases shall be completed within a period of 90 days, as against 180 days in other cases. However, the Adjudicating Authority may, if satisfied, extend the period of 90 days by a further period up to 45 days for completion of the process. The Ministry of Corporate Affairs has notified the relevant sections 55 to 58 of the Insolvency and Bankruptcy code,2016 pertaining to the Fast Track Process and also notified that fast track process shall apply to the following categories of corporate debtors, a small company, a Startup or an unlisted company with total assets, not exceeding Rs.1 crore

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