The MCA has been found that there are so many companies which are registered under companies act but due to various reasons they are inoperative since incorporation or commenced business but inoperative or defunct later on.such companies are desires of getting there name struck off from the register of corporate registrar . The reason for such desire are being the operating/ carrying cost which companies has to be incurred whether or not those are running/earning.There are various forms need to be filled by all companies to fulfill the requirements, to match the demands of the companies act 1956 and in some cases these costs are so high.
Some of the cost we can count on tips are
1. MCA forms (Annual BS and P&L forms etc.)
2. Audit cost (Mandatory Annual audit requirement )
so to understand the call of the hour and need of the companies MCA decided to issue guidelines under sec.560 of companies act 1956.
As per section 560 of the companies act 1956, registrar of the companies may strike off the name of the companies on being satisfaction that all the requirements has been complied.As per the present practice the companies has to apply in E-form 61 to struck off their names and all the statutory returns which needs to be filed should be filled with this form.
Guidelines
1. for Fast Track Exit mode (FTE)
a) Defunct Company
i) which has not commenced business activity or operation since incorporation
ii) is not carrying any business from last one year
Has nil assets and liabilities for the purpose of these guidelines.
b) Identified by MCA as dormant company
c) if a company is a govt company shall submit NOC with the application from concerned Deptt.
d) The decision of registrar of companies in respect of striking of company shall be final.
Exclusion
Companies excluded from FTE are
1) Listed Companies
2) Companies those are delisted due to non compliance of listing agreement or any other statutory law
3) Companies registered u/s 25 of the act
4) Vanishing Comapnies
5) Companies on which any investigation prosecution going over or pending yet or any of appeal are pending in any of court
Companies against which
i) order u/s 254 has been issued and reply there to is pending or prosecution if any pending in court
ii) Prosecution for non compoundable offence is pending in court
Companies which
i) accepted public deposits either outstanding or defaulted in repayment
ii) having Secured loans
iii) having management dispute
iv) Filing of documents have been stayed by court , CLB any statutory authority or by CG
v) having pending any statutory dues i.e income tax, sales tax, excise or any levied by central or state govt.
Procedure
1.) Any company which is desirous to getting its name struck off from register u/s 560 of the act shall make an application in form FTE annexed electronically on the portal of MCA accompanied by filling fees of Rs. 5,000/-(Digitally sigend by its directors or managing directors or secretary)2.) In case the form FTE is not digitally signed by any of above mentioned the a copy of form physically filled duly signed by the authorized person will attached to the electronic form.
3.) The form should be certified either by full time CA/CS/CWA
4.) In case if the applicants name is not in the data base then the application should be certified by the persons in point (3) mentioning their membership no stating that this person is the current director, MCA would not ask to file form 32 and din form3
5.) The company shall disclose pending litigation, if any
6.) if pending litigation are of non filing of annual return u/s 159 and balance sheet u/s 220 of the act, such application may be accepted provided the compounding application for the above are filed in front of competitive authority. However final decision of strike off name will be take on the disposal of compounding application.
7.) The Form FTE shall be accompanied by
Annexure
a) an affidavit sworn by each one of existing directors stating that company has not carrying any business since incorporation or discontinued its business after some time.
b) Indemnity bond duly notarized
( In case of foreign nationals indemnity bond and affidavit duly notarized as per their respect country laws)
c) statement of accounts duly certified by CA
( In case of 100% govt. companies FTE will be filed by the authorized person appointed by respective ministry)
Procedure adopted by Registrar
1. On receipt of application registrar issue a notice u/s 560(3) under the act stating that if anything unless not responded on contrary to this name of the company will strike off.2. The registrar on the daily basis put the name of applicant and company on the MCA portal for the 30 days.
3. and if the registrar is satisfied in the case and not get any objection from any concerned person shall strike off the mane from the register and shall send notice u/s 560(5) of the act for publication of officially gazette of India and the applicant company shall stand dissolved from the date of publication in Gazette.
Glossary
1.Act in this write-up means companies act 1956.
2. Vanishing Company are the company which are registered under the act and failed to file the required return with ROC and stock exchange for the period of two consecutive years and is not maintains its office at the place registered with teh registrar and also none of its directors are traceable.
Link:http://www.mca.gov.in/Ministry/pdf/Circular_36-2011_07jun2011.pdf
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