CONDONATION OF DELAY BY CENTRAL GOVERNMENT IN CERTAIN CASES
(Section 460 of the Companies Act, 2013)
As per section 460 of the Companies Act, 2013 (“the Act”),
- Where any application required to be made to the Central Government, and
- Where any document required to be filed with the Registrar
is not filed within the time, the Central Government may, for reasons to be recorded in writing, condone the delay.
Please Note that this section applies mostly in case of non-filing of Board resolution or agreement or special resolution, as per section 117 read with section 179 of the Companies Act, 2013 or the wherever written in the Act for passing and filing Board Resolution or Special Resolution, within the time prescribed in that section or with additional fee within the time prescribed under section 403.
Clarification & Penalty for default:
As per section 117 of the Companies Act, 2013, Board resolution or agreement or Special Resolution shall be filed within 30 days of passing the same and also can be filed with the additional fees within 270 days after expiry of 30 days period.
So, a resolution or agreement can be filed within 300 days but if not filed within the 300 days then the Company shall be punishable with fine which shall not be less than Rs. 5 Lakh but which may extend to Rs. 25 Lakh and Every officer of the Company who is in default, including liquidator of the Company, shall be punishable with fine which shall not be less than Rs. 1 lakh but which may extend to Rs. 5 Lakh.
Resolution need to be filed by Every Company
(Section 117 of the Companies Act, 2013)
- Special resolutions
- Resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions
- any resolution of the Board of Directors of a company or agreement executed by a company, relating to the appointment, re-appointment or renewal of the appointment, or variation of the terms of appointment, of a managing director
- resolutions or agreements which have been agreed to by any class of members but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by a specified majority or otherwise in some particular manner; and all resolutions or agreements which effectively bind such class of members though not agreed to by all those members;
- resolutions passed by a company according consent to the exercise by its Board of directors of any of the powers under clause (a) and clause (c) of sub-section (1) of Section 180:
- as per section 180(1)(a) : to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the company or where the company owns more than one undertaking, of the whole or substantially the whole of any of such undertakings.
- as per section 180(a)(c) : to borrow money, where the money to be borrowed, together with the money already borrowed by the company will exceed aggregate of its paid-up share capital and free reserves, apart from temporary loans obtained from the company’s bankers in the ordinary course of business.
- Resolutions requiring a company to be wound up voluntarily passed in pursuance ofsection 59 of the Insolvency and Bankruptcy Code, 2016
- Any other resolution or agreement as may be prescribed and placed in the public domain.
Resolution need to be filed by every company except Private Limited Company
As per section 179 of the Companies Act, 2013, Board of Directors of a company shall exercise the following powers on behalf of the company by means of resolutions passed at meetings of the Board:
- to make calls on shareholders in respect of money unpaid on their shares
- to authorise buy-back of securities under section 68
- to issue securities, including debentures, whether in or outside India
- to borrow monies
- to invest the funds of the company
- to grant loans or give guarantee or provide security in respect of loans
- to approve financial statement and the Board’s report
- to diversify the business of the company
- to approve amalgamation, merger or reconstruction
- to take over a company or acquire a controlling or substantial stake in another company
- to make political contributions
- to appoint or remove Key Managerial Personnel (KMP)
- to appoint internal auditors and secretarial auditors
- any other matter which may be prescribed
The application for Condonation of delay shall be filed with the Central Government in e-Form CG-1 along with the fee and along with the following attachments:
- Document for which company is making application to condone the delay in filing.
- Certified true copy of the Board Resolution authorizing for filing the application and appointing authorized representative, if any.
- Petition or Application with reasons for delay and relief sought
- Affidavit verifying the petition by the director of the company authorized for the same
- Memorandum of Appearance by the Authorized representative appointed for the same
- Letter of Authorization (In case of authorized representative of a foreign company)
- Other document, if any.
The order passed by the Central Government shall be filed with the Registrar in e-Form INC-28 along with the fee and as per the conditions stipulated in the said order.
After filing the order in e-form INC-28 to the Registrar, file the respective document in the prescribed form i.e. e-form MGT-14.
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