Guidelines for filing statutory applications Under section 211

Guidelines for filing statutory applications Under section 211

Applications seeking exemption under Section 211 of the Companies Act should be accompanied by:

—    Specified Board resolution in support of the proposal indicating specific paras of Part II of Schedule VI and the financial year in respect of which exemption is sought.

—    Form 23AAA is prescribed for this purpose.

The following information should invariably be furnished with the application in the fields forming part of the e-Form:

—    The financial year for which exemption is sought.

—    Precise reasons/justification for seeking exemption.

—    If the company had been complying with the requirements in the past, reasons as to how the company has been complying in the past.

—    It should be indicated as to whether the company is maintaining proper purchase/sales/stock registers so as to furnish true and fair view of its state of affairs in compliance of Section 209/211 read with Schedule VI to the Act.

—    Details of total turnover and exports made by the company during the financial year in respect of which exemption is sought.

The companies may have to furnish any other additional information as may be asked for by the Department.

Under Section 212

Application seeking exemption under Section 212(8) need not be filed for each financial year as the Ministry of Corporate Affairs vide its General Circular No. 02/2011 dated 08.02.2011 has granted general exemption to companies under section 212(8) of the Companies Act, 1956 from attaching annual accounts of subsidiary companies for the financial year 2010-11 onwards subject to fulfillment of following conditions:-

(i)    The Board of Directors of the Company has by resolution given consent for not attaching the balance sheet of the subsidiary concerned;

(ii)    The company shall present in the annual report, the consolidated financial statements of holding company and all subsidiaries duly audited by its statutory auditors;

(iii)   The consolidated financial statement shall be prepared in strict compliance with applicable Accounting Standards and, where applicable, Listing Agreement as prescribed by the Security and Exchange Board of India;

(iv)  The company shall disclose in the consolidated balance sheet the following information in aggregate for each subsidiary including subsidiaries of subsidiaries:- (a) capital (b) reserves (c) total assets (d) total liabilities (e) details of investment (except in case of investment in the subsidiaries) (f) turnover (g) profit before taxation (h) provision for taxation (i) profit after taxation (j) proposed dividend;

(v)   The holding company shall undertake in its annual report that annual accounts of the subsidiary companies and the related detailed information shall be made available to shareholders of the holding and subsidiary companies seeking such information at any point of time. The annual accounts of the subsidiary companies shall also be kept for inspection by any shareholders in the head office of the holding company and of the subsidiary companies concerned and a note to the above effect will be included in the annual report of the holding company. The holding company shall furnish a hard copy of details of accounts of subsidiaries to any shareholder on demand;

(vi)  The holding as well as subsidiary companies in question shall regularly file such data to the various regulatory and Government authorities as may be required by them;

(vii) The company shall give Indian rupee equivalent of the figures given in foreign currency appearing in the accounts of the subsidiary companies along with exchange rate as on closing day of the financial year;

Guidelines for filing statutory applications under Section 58A(8) of the Companies Act, 1956

Guidelines for filing statutory applications under Section 58A(8) of the Companies Act, 1956

An application submitted under Section 58A(8) of the Companies Act, 1956 should be in accordance with the Companies (Application for Extension of Time or Exemption under sub-section (8) of Section 58A) Rules, 1979 and be accompanied by the following:

—   Original newspaper clippings of the public Notices published in English and vernacular language of the region in which registered office of the company is situated in the manner specified in Form 2 appended to the Rules.

—   Certified copy of Resolution of the Board of Directors approving the proposal of the company.

—   Copy of previous approval/order, if any, obtained under Section 58(A) from the Central Government granting exemption/extension of time during last ten years.

—   Certificates from the statutory Auditors:

—    to the effect that the company has not contravened any other provisions of Section 58A of the Companies Act, 1956 and the Companies (Acceptance of Deposits) Rules, 1975 except those for which the application is submitted.

—    to the effect that the deposits held by the company are within limits and that no contravention of the provisions of Section 58A of the Companies Act, 1956 and the Companies (Acceptance of Deposits) Rules, 1975 exists at present.

—   Deposit position of the company as at 31st March during the current year and the past two years showing the details as under:

One copy each of the advertisement issued in newspapers pursuant to Rule 4 of the Companies (Acceptance of Deposits) Rules, 1975

Checklist - Shifting of Office from one Jurisdiction to another Jurisdiction in Same state

SHIFTING OF REGISTERED OFFICE FROM A PLACE UNDER THE JURISDICTION OF ONE ROC TO A PLACE UNDER THE JURISDICTION OF ANOTHER ROC WITHIN THE SAME STATE

Check whether:

(i)    the company has passed a special resolution in Ihe general meeting for shifting its registered office from a place under the jurisdiction of one ROC to a place under (he jurisdiction of an­other ROC, within the same Stale;

(ii)   it has made application electronically in e-Form 1 AD to Ihe Regional Director for confirma­tion of special resolution;

(iii)  the RD had passed the confirmation order of the resolution within four weeks from the dale of receipt of the company's application;

(iv)  the company has filed with the ROC, from whose jurisdiction it proposes to shift the regis­tered office, a copy of the confirmation order of ihe Regional Director along with the primed copy of the memorandum as altered within 2 months from the date of confirmation by the Regional Director; and

(v)    the ROC from whose jurisdiction Registered Office has been shifted, has registered the documents and certified the registration under his hand within one month from the date of filing of such documents.

Petition before CLB for confirmation of change in Registered Office clause

Such petition is not necessary for change of objects. CLB sanction is necessary only for inter-State shifting of registered office.

The petition under sub-scction (2) for confirming alteration in Memorandum of Asso­ciation as to change of place of the registered office from one State to another has to be made in Form No. I of Annexure-II and as per Regulation 36 of CLB Regulations, 1991 before the Regional Bench of the Company Law Board, accompanied by (he following documents and application fee of Rs. 1000/-:

(1)   Copy of the memorandum and articles of association.

(2)   Copy of the notice calling the meeting with Explanatory Statement.

(3)   Copy of the Special Resolution sanctioning the alteration by the members of the company.

(4)   Copy of the minutes of the meeting at which the Special Resoultion was passed.

(5)   Copy of the latest audited balance-sheet with the profit and loss account of the company with auditor’s report and directors’ report.

(6)   List of creditors and debenture holders and evidence of service of notice on them under U.P.C.

(7)   Affidavit veryfying list of creditors as per Regulation 36(7).

(8)   Affidavit proving despatch and service of notice together with newspaper cuttings.

(9)   Affidavit verifying the petition.

(10) Acknowledgment receipts from the Registrar of Companies/Regional Director and/or from the Chief Secretary of the State Government/Administrator, where applicable [See Regulation 14(3) (and 36(2))].

(11) Bank draft or bankers cheque evidencing payment of application fee.

(12) Memorandum of appearance in Form No. 5 of Annexure II with copy of the Board Resolution or the executed Vakalatnama, as the case may be.

Publish a general notice, at least once, in the district in a daily newspaper published in English and in the principal language of the district in which the registered office of the company is situated, and circulating in that district clearly indicating the substance of the petition and stating that any person whose interest is likely to be affected by the proposed alteration of the memorandum may intimate to the Bench Officer within twenty-one days of the date of publication of that notice stating the nature of interest and grounds of opposition. Where no objection has been received from any of the pat­ties who have been duly served, the Bench Officer may put up the petition for orders without hearing.

The company shall, not less than one month before filing the petition, publish a general notice in the daily newspapers (in regional language and in English language) circulating in the District in which registered office is situated for inviting objections, if any, and also serve under certificate of posting individual notices on each debenture-holder and creditor [Regulation 36(l)(i)]. Petition is required to be filed within two months from the date upto which the list of creditors is prepared and notice to creditors/debenture-holders be issued Under Postal Certificate (UPC) within one month before the date of filing the petition before CLB [Regulation 36(6)]. The company may seek dispensation from the requirement of service of notice on the debenture-holders/creditors by making an inter­locutory application, in terms of Regulation 48.

In case of change of registered office from one State to another, notice of the petition may be served by registered post on the Chief Secretary of the State Government or the Administrator or the Lt. Governor, as the case may be. A copy of the petition shall also be served on the Registrar of Companies (also on the Regional Director in case of a sec­tion 25 company). An affidavit to prove despatch, publication and service of notice should be enclosed with the petition.

It may also be ensured that the services of employees and workers are not terminated and they are also not retrenched consequent upon shifting of the registered office