nclt - the companies act, 2013 relating to tribunal - r s bhatia

SECTIONS AND PROVISIONS OF

THE COMPANIES ACT, 2013

RELATING TO TRIBUNAL

NOTIFIED W.E.F. 1/6/2016

- SI. No. Section Purpose

1. Sub section (41) of section 2 proviso

Allow certain companies or body corporate to have a different financial year

2. Sub-section (7) of section 7 [except clause (c) and (d)]

Legal action for false or incorrect information at the time of Incorporation

3. Second proviso to sub-section (1) of section 14

Conversion of Public to Private Limited

4. Sub-section (2) of section 14

Conversion of Public to Private Limited

6. Section 131 Voluntary revision of financial statements or Board Report

7. Second proviso to sub-section (4) and sub- section (5) of section 140

Removal or change of Auditor before due Date and Suo Moto action by Tribunal for removal

5. Section 130 Re-opening of Accounts by Authorities

SECTION 2(41)

CHANGE OF FINANCIAL YEAR

SEC 2(41) CHANGE OF FINANCIAL YEAR

• Financial Year to be from 1st April to 31st March.

• However, NCLT may on an application made by

• i) a company or body corporate, which is a holding company, or,

• Ii) subsidiary of a company incorporated outside India, and,

• is required to follow a different financial year for consideration of its accounts outside India, and allow any period as its financial year, whether or not that period is a year

CHANGE OF FINANCIAL YEAR

Relevant Rule 69 A

Petition under sub-section (41) of Section 2. The Petition under sub-section (41) of Section 2 be filed to the Tribunal in Form No. NCT 1 (Annexure –A), and, shall be accompanied with such documents as are mentioned in Annexure –B.

Documents Annexure –B Application for Change in Financial Year

• 1.Copy of the Memorandum and Articles of Association.

• 2. Copy of Balance Sheet of companies ( both holding & Subsidiary Latest Audited).

• 3. Affidavit verifying the petition.

• 4. Bank draft evidencing payment of application fee.

• 5. Memorandum of Appearance with copy of the Board Resolution or the executed Vakalatnama, as the case may be.

.

CHANGE OF FINANCIAL YEAR Memorandum of Appearance & Fee

Rule 15:

The Authorized Representatives shall make an appearance through the filing of

Memorandum of Appearance, or,

a Power of Attorney

in Form No. NCT. 12

Fee

Rule 2(27) read with Rule 38

• Sec. 2 (41) Application for change in financial year,

Rs. 5,000/-.

• Payable in Favour of Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi/Kolkata/Chennai /Mumbai as the case may be or by electronic mode.

SECTION 7(7)

REMOVAL OF NAME

REMOVAL OF NAME

Section 7(7)

• Where a company got incorporated by furnishing, any,

• false or incorrect information or

• representation or

• by suppressing any material fact or information

• in any of the documents or declaration filed or made

• for incorporating such company or

• by any fraudulent action,

• the Tribunal may, on an application made to it, on being satisfied that the situation so warrants,

REMOVAL OF NAME

Application under sub- section (7) of

section 7.

Rule 69

• SUB RULE : 1

Application under sub-section (7) of Section 7 shall be filed to the Tribunal

in Form No. NCT 1 and

shall be accompanied with such documents as are mentioned

in Annexure –B.

REMOVAL OF NAME Application to set out the following

particulars Rule 69 SUB RULE: 2

• Name of the company and other details including

• date of incorporation, name and address of the subscribers, promoters and first directors; and

• The details of false or incorrect information or representation or material facts or information suppressed.

• The details of such documents in or declaration filed or made for incorporating such company,

• The involvement of promoters, subscribers and first directors in committing fraud during the course of incorporation;

REMOVAL OF NAME Documents as are per Annexure –B.

• 1. Copy of the Memorandum and Articles of Association.

• 2. Document in proof of false or incorrect information or fraudulent action.




REMOVAL OF NAME

Memorandum of Appearance & Fee The Authorized Representatives shall make an appearance through the filing of Memorandum of Appearance, or, a Power of Attorney in Form No. NCT. 12

Fee Rule 2(27) read with Rule 38

• Sec. 7(7) Application for change in financial year, Rs. 5,000/-. • Payable in Favour of Pay and Accounts Officer, Ministry of

Corporate Affairs, New Delhi/Kolkata/Chennai /Mumbai as the case may be or by electronic mode.

Section 14

conversion of a public company

into a private company

Conversion: Public company to

private company

Sec 14

Any alteration of AOA of company

having the effect of conversion of a public company into a private company

shall not take effect

except with the approval of NCLT.

Public company to private company Petition under section 14.

Rule 70

Sub Rule 1

• Petition for the conversion of a public company into a private company,

• To be filed witin three months from the date of passing of special resolution,

• To the Tribunal in Form No. NCT. 1, and,

• shall be accompanied with such documents as are mentioned in Annexure B.

Public company to private company Documents as are per Annexure –B.

• 1. Copy of the Memorandum and Articles of Association.

• 2. Document in proof of false or incorrect information or fraudulent action.




Public company to private company

Rule 70 SUB RULE 2

• Application to set out the following particulars:

• the date of the Board meeting at which the proposal for alteration of Articles was approved;

• the date of the general meeting at which the proposed alteration was approved;

• state at which the registered office of the company was situated;

• number of members in the company, number of members attended the meeting and number of members of voted for and against;


Rule 70 SUB RULE 2

Contd……

• reason for conversion into a private company effect of such conversion on shareholders, creditors, debenture holders and other related parties.

• state listed or unlisted public company.

• state the nature of the company that is a company limited by shares, a company limited by guarantee (having share capital or not having share capital) and unlimited company

• state whether a company registered under section 8 of the Act.


Rule 70 SUB RULE 3

Attached to the application, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of petition by not more than two months, setting forth the following details: • (a) the names and address of every creditor and

debenture holder; • (b) the nature and respective amounts due to

them in respect of debts, claims or liabilities; • (c) in respect of any contingent or unascertained

debt or any such claim admissible to proof in winding up of the company, the value, so far as can be justly estimated of such debt or claim:


Rule 70 SUB RULE 3 contd

Provided that the petitioner company shall file an affidavit, signed by the company secretary of the company, if any and

not less than two directors of the company, one of whom shall be a managing director, where there is one, to the effect

that they have made a full enquiry into the affairs of the company and, having done so, have formed an opinion that the list of creditors is correct, and that the estimated value

as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other

debts of , or claims against, the company to their knowledge.


Rule 70 SUB RULE 4 A duly authenticated copy of such list of

creditors shall be kept at the registered office of the company and

any person desirous of inspecting the same may,

at any time during the ordinary hours of business, inspect and

take extracts from the same on payment of the sum of rupees ten per page to the company.


Rule 70 SUB RULE 5 At least 14 days before the date of hearing:

• Advertise the petition in FORM NO. NCT. 3A • serve, by registered post with acknowledgement due,

individual notice(s) in Form NCT. No. 3B to the effect set out in sub-rule (a) above

• on each debenture-holder and creditor of the company; and

• serve, by registered post with acknowledgement due, • a notice together with the copy of the petition • to the Central Government, Registrar of companies and to

the Securities and Exchange Board, in the case of listed companies and

• to the regulatory body, if the company is regulated under any Special Act:

Public company to private company Rule 70 SUB RULE 6 Where any objection of any person whose interest is likely to be affected by the proposed petition has been received by the petitioner, it shall serve a copy thereof to the Registrar of Companies on or before the date of hearing:

Public company to private company Rule 70 SUB RULE 7 The Tribunal may, if satisfied, having regard to all the circumstances of the case, that the conversion would not be in the interest of the company or is being made with a view to contravene or to avoid complying with the provisions of the Act, disallow the conversion with reasons to be recorded in writing


Memorandum of Appearance & Fee The Authorized Representatives shall make an appearance through the filing of Memorandum of Appearance, or, a Power of Attorney in Form No. NCT. 12

Fee Rule 2(27) read with Rule 38

Sec. 14(1) Application for Public company to private company, Rs. 5,000/-. Payable in Favour of Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi/Kolkata/Chennai /Mumbai as the case may be or by electronic mode.

SECTION 130(1)

Re-opening of Accounts by Authorities

Re-opening of Accounts Section 130(1):

A company shall not re-open its books of account and not recast its financial statements,

unless an application in this regard is made by Central Gov., Income-tax auth, the S E B I, any other statutory regulatory body or authority or any person concerned and an order is made by a court of competent jurisdiction or the Tribunal to the effect that—

(i) the relevant earlier accounts were prepared in a fraudulent manner; or

(ii) the affairs of the company were mismanaged during the relevant period, casting a doubt on the reliability of financial statements:

Re-opening of Accounts Section 130(1) Contd. Provided that the court or NCLT, as the case may be, shall give notice to the Central Government, the Income-tax authorities, the Securities and Exchange Board or any other statutory regulatory body or authority concerned and shall take into consideration the representations, if any, made by that Government or the authorities, Securities and Exchange Board or the body or authority concerned before passing any order under this section.

Re-opening of Accounts Section 130(1)

RULE There is no rule

Re-opening of Accounts Section 130(1)

FEE

• Application for re-opening of books of account, if made by any person other than

• Central Government, Income Tax authorities, SEBI or any other statutory regulatory body or authority,

• Rs. 5,000/-

SECTION 131(1)

Voluntary Revision of

Financial Statements or

Board Report

Revision of Financial Statements Sec 131(1)

If it appears to the directors of a company that

the financial statement of the company or

the report of the Board,

do not comply with provisions of section 129 or section 134

they may prepare revised financial statement or revised report

in respect of any of the three preceding financial years

after obtaining approval of NCLT on an application made by t company in such form and manner as may be prescribed and

a copy of the order passed by the Tribunal shall be filed with the Registrar

RULE 97: Application under section 131. Re-opening of Books of Account

SUB RULE: 1

• An application under sub-section (1) of section 131 for obtaining an order of re-opening of books of account and recasting of financial statement of a company shall be filed with the

• Tribunal in Form No. NCT. 1 and

• shall be accompanied by such documents as are mentioned in Annexure B.

RULE 97: Application under section 131. Re-opening of Books of Account

• SUB RULE: 2

• The application shall, inter alia, set forth the following particulars:

• financial year or period to which such accounts relates;

• the name and contact details of the Managing Director, Chief Financial Officer, directors, ‘Company Secretary’ and officer of the company responsible for making and maintaining such books of accounts and financial statement;

• where such accounts are audited, the name and contact details of the auditor or any former auditor who audited such accounts;

RULE 97: Application under section 131. Re-opening of Books of Accounts

• SUB RULE: 3

• The company shall at least 14 days before the date of

hearing advertise the application in accordance with rule 7(FORM NO. NCT. 3A)

• SUB RULE: 4

• Upon the hearing the application or any adjourned hearing thereof, the Tribunal may pass such an order, subject to such terms and conditions, as it thinks fit:

RULE 97: Application under section 131. Re-opening of Board’s Report

• Application in Form No. NCT. 1 and shall be accompanied by such documents as are mentioned in Annexure B as Under:

• 1. Audited Financial statements of relevant period;

• 2. Copies of memorandum and articles of association.

• 3. The details of the Managing Director, Chief Financial Officer, directors, Company Secretary and officer of the company responsible for making and maintaining

RULE 97: Application under section 131. Re-opening of Board’s Report Contd.. 4. Copy of the Board Resolution passed by the Board of Directors. 5. Affidavit verifying the petition. 6. Bank draft evidencing payment of application fee. 7. Memorandum of Appearance with copy of the Board’s Resolution or the executed Vakalatnama, as the case may be. 8. Any other relevant document.

Re-opening of Books of Accounts Memorandum of Appearance & Fee

• The Authorized Representatives shall make an appearance through the filing of

• Memorandum of Appearance, or,

• a Power of Attorney

• in Form No. NCT. 12

• Fee

• Rule 2(27) read with Rule 38

• Sec. 131 Application for Re-opening of Books of Accounts,

• Rs. 5,000/-.

• Payable in Favour of Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi/Kolkata/Chennai /Mumbai as the case may be or by electronic mode.

OLD CIRCULAR/PROVISION

Re-opening/revision of annual accounts:

As per guidance note on auditors report on revised accounts of companies the

annual accounts could be reopened before there circulation to shareholders.

(compendium of guidance notes, vol.I, 2nd edition,1987)

However, department viewed in 1987 that impartial modification of the upper said view, it said that

accounts could be re-opened/revised even after there adoption in AGM only for

complying technical requirements of taxation law

(Letter dated 19-8-1987 to ICAI)

SECTION 140(5)

Removal or change of Auditor before due Date and Suo Moto action by Tribunal

for removal

Removal or change of Auditor Sec 140(5)

The Tribunal either suo moto or on an application made to it by the Central Government or by any person concerned, if it is satisfied that the auditor of a company has, whether directly or indirectly, acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, the company or its directors or officers, it may, by order, direct the company to change its auditors. If the application is made by the Central Government and the Tribunal is satisfied that any change of the auditor is required, it shall within fifteen days of receipt of such application, make an order that he shall not function as an auditor and the Central Government may appoint another auditor in his place.

Removal or change of Auditor Sec 140(5)

RULE

• No rule applicable

Removal or change of Auditor Memorandum of Appearance & Fee

• The Authorized Representatives shall make an appearance through the filing of

• Memorandum of Appearance, or, • a Power of Attorney • in Form No. NCT. 12

• Fee • Rule 2(27) read with Rule 38

• Sec. 14(1) Application for Removal or change of Auditor, • Rs. 2,000/-. • Payable in Favour of Pay and Accounts Officer, Ministry of

Corporate Affairs, New Delhi/Kolkata/Chennai /Mumbai as the case may be or by electronic mode.

FORM BY WHICH ORIGINAL PROCEDINGS COMMENCE

• Form NCT 1 to be filed for all of the Sections • Imp points 1) Jurisdiction: Section 430 No civil court shall have jurisdiction to entertain any suit

or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act

or any other law for the time being in force and no injunction shall be granted by any court or other

authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal

Jurisdiction Rule: 4.

Territorial Jurisdiction

of the Tribunal

and its Benches:

LIMITATION

Sec 433

The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be.

THANK YOU

nclt - the companies act, 2013 relating to tribunal - r s bhatia

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