Compliance’s under Companies Act for month April 2019

1. Form DPT-3

Due date April 22, 2019

By Companies (Acceptance of Deposits) Amendment Rules, 2019 : “Every Company other than Government Company shall file a onetime return of outstanding receipt of money or loan by a company but not considered as deposits, in term of clause (c) of sub-rule 1 of rule 2 from the 01st April, 2014 to the date of publication of this notification in the official Gazette (i.e. 22nd January, 2019) in e-form DPT-3 within 90 days from the date of publication.”

The outstanding receipt of all the Money and Loan from 1st April 2014 to 22nd January 2019 (i.e. date of publication of the notice) is required to be reported in e-form DPT-3. Outstanding receipt of money or loan by a company but not considered as deposits as on 22nd January 2019 needs to be reported.

APPLICABLE TO:

• All the companies, including small, non-small, private, OPC etc need to file DPT-3 after the publication on these rules.
• Loans obtained from Holding Company or Subsidiary Company or Associate Company would also be considered and DPT-3 needs to be filed for the same.
• If some outstanding receipt of money or loan had become due before 01st April 2014 and is still continuing and standing in the company, then such an outstanding loan needs to be reported to the ROC in the e-form DPT-3.

NOT APPLICABLE TO:

• Filing e-form DPT-3 is not required in a situation where the company doesn’t have any outstanding loan as on 22/1/2019.
• A loan that was taken after 1st April 2014  but has been cleared by the company before 22/1/2019 and is not outstanding under the records of the company need not be informed to the ROC

Due date of Filing of e-form DPT-3 in rule 16A is 22nd April 2019 as form required to file within 90 days of publication of these rules. (22nd January 2019 + 90 days)

Rule 16A (3) Every company other than Government Company shall file a onetime return of outstanding receipt of money or loan by a company but not considered as deposits, in terms of clause (c) of sub-rule 1 of rule 2 from the 01^st April, 2014 to 22nd January, 2019 (till the date of publication of this notification in the Official Gazette), as specified in Form DPT-3 within ninety days from the date of said publication of this notification along with fee as provided in the Companies (Registration Offices and Fees) Rules, 2014.

Which transactions are enlisted in Rule 2(1)(c)?

→ Rule 2(1)(c) defines the term ‘deposit’ in an exclusive manner and enlists 19 transactions which are not treated as deposits. Below is the list of the items that are excluded from the term ‘deposit’ subject to the conditions/ exceptions mentioned thereunder-

a. Amount received from central government, state government etc;

b. Amount received from foreign governments/ banks etc;

c. Amount received as loan from banks, banking companies etc;

d. Amount received as loan from Private Finance institutions (PFIs), any regional Financial Institutions or insurance companies or scheduled banks;

e. Amount raised through issuance of commercial paper;

f. Inter- corporate deposits;

g. Amount received as subscription money for securities pending allotment;

h. Amount received from directors/ relative of directors in case of a private company;

i. Amount raised by issue of secured bonds/ debentures;

j. Amount raised through issuance of unsecured listed NCDs;

k. Non-interest bearing security deposit received from employees;

l. Non-interest bearing amount held in trust;

m. Advance from customers;

n. Amount brought by the promoters;

o. Any amount accepted by a Nidhi;

p. Any amount received by way of subscription in respect of a chit;

q. Any amount received by the company under any collective investment scheme;

r. Amount received by start- up company by way of convertible note;

s. Amount received from Alternate Investment Funds (AIFs), venture capital funds (VCFs) real estate investment trusts (REITs) etc.

What are the attachments required with Form DPT-3 ?

1.) Auditor’s certificate [CA Certificate]

2.) Deposit Insurance contract – Mandatory if company has deposit insurance and details of same are mentioned in the form

3.) Copy of trust deed – Mandatory if company has trust deed and details of same are mentioned in the form

4.) Copy of instrument creating charge – Mandatory if company has instrument creating charge and details of same are mentioned in the form

5.) List of depositors – List of deposits matured, cheques issued but not yet cleared to be shown separately – Mandatory if company has balance of deposits outstanding at the end of the year.

6.) Details of liquid assets

7.) Optional attachment, if any.

What will be the consequences for non- reporting?

→ If the company is non-compliant with the provisions of the law i.e. does not file DPT-3 and still accepts deposits then it shall

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2. E-Form – Active (Active Company Tagging Identities and Verification)

Due date April 25, 2019

In India, there are total 11,72,664 Companies are registered till 31st December, 2017. Out of total Private Companies are 10,97,312 and Public Limited Company are 64,869 and Foreign Companies are 3,361 and Other Companies are 7,122. Accordingly, all above Companies need to file the e-Form Active on or before 25th April, 2019. There are so many Companies which are operating only on Paper i.e. Shell Company, to find out the same, Ministry of Corporate affairs introduced the Form, which can be called as e-Form ACTIVE.
The Ministry of Corporate Affairs (“MCA“) notified the Companies (Incorporation) Amendment Rules 2019. Pursuant to this, all companies incorporated on or before December 31, 2017 have to file e-form – ACTIVE (form INC – 22A) by April 25, 2019. The objective is to deter non-compliance and reinforce good governance practices for covered companies.

A brief overview is provided below:

1.       Applicability: This applies to all companies, except those which have been struck off or are undergoing the process of striking-off, liquidation, amalgamation or dissolution. Prior to this filing, companies must update their annual filings (financial statements and annual returns) till financial year 2017-18.

2.        Form requisites: Key information required in the form include:

• a mobile number and e-mail ID of the company to be verified by One Time Password (OTP)
• valid Director Identification Number of all directors (Before filing  (ACTIVE) eform, please ensure that the DINs of all Directors are in ‘approved’ status and are neither ‘De-activated due to non-filing of DIR-3 KYC’ nor ‘Disqualified u/s 164(2))
• statutory auditor’s details
• cost auditor’s details, if applicable
• details of MD, CEO, manager, whole-time director and CS, if applicable
• Service Request Numbers of e-forms filed for financials and annual return
• latitude and longitude of the registered office
• photographs of registered office showing external and internal space, and the physical presence of the director who will digitally sign the form at the office premises. Photographs must be in PDF format as only PDF attachments are allowed currently.

3.        Non-compliance: Failure to file within the timeline will result in

• Status of the company in its master data changing to “Active-Non compliant“

• Companies will not be able to file other updates such as:

  • SH-07 (Change in authorized capital);
  • PAS-03 (Change in paid-up capital);
  • DIR-12 (Changes in director except cessation);
  • INC-22 (Change in registered office);
  • INC-28 (amalgamation, de-merger)
• The company paying late fee of INR 10,000 at the time of filing the form.
• Removal of name of the company after physical verification of registered office by the Registrar of Companies, if the default continues

In which Case, INC-22A cannot be able to filed ?

• When, number of directors is less than the minimum as prescribed under the Companies Act, 2013.
• When DIR-3 KYC of Director is not filed.
• When the Company does not appoint Key Managerial Personnel, which required to be appointed under Companies Act, 2013.
• When Company does not appoint Cost Auditor when it requires to be appoint under the Companies Act, 2013.
• When Annual Returns for F.Y. 2017-18 are not filed till date

How to find Latitude & Longitude for filing of e-Form INC -22A ?
It is advisable to extract the Latitude and Longitude of the Registered Office of the Company by using Google Map.

ADVICE FOR PROFESSIONAL
In addition to above, Professional also need to obtain Simple Declaration cum Engagement Letter from the Respective Company for Filing of e-Fom Active, which is necessary and easy to comply in case of any inquiry is carried out by Ministry in Future.

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3. Form DIR-3 KYC

Due date April 30, 2019

As required under Rule 12 A of The Companies (Appointment and Qualification of Directors) Rules, 2014, Every individual who has been allotted a Director Identification Number (DIN) as on 31st march of a financial year as per these rules shall, submit e-form DIR-3-KYC to the Central Government on or before 30th April of immediate next financial year.

As per this requirement, every person  who holds a DIN as on 31st March of a Financial year, has to file the KYC on or before 30th April of that year. So, the DIN KYC Filing has to be done every year by 30th April every year.

Even if the DIN is allotted on 31st March of a Financial year, the KYC on or before 30th April of that year is mandatory.

DIN-KYC is an yearly Compliance Filing by all the DIN holders whether or not the holder is Director of a Company or the status of DIN is disqualified under MCA.

List of Documents required to file DIR 3 KYC eform

• Details of nationality and citizenship details like Gender and Date of birth.
• Permanent Account Number PAN.
• Voters Identity Card
• Passport ( Mandatory for Foreign national is holding a DIN)
• Driving License
• Aadhar Card (Mandatory) – Back and Front both
• Personal Mobile
• Personal Email Address
• Residential Address.
• Digital Signature of individual filing the form applicant.

Attachments to be made For filing of E Form KYC

Check once all the documents are attested before uploading it.

• Proof of Permanent Address.
• Conditional Attachments, if any
• Copy of Aadhaar Card.
• Copy of Passport
• Proof of present Address

Fees Applicable for filing your DIR 3 KYC

There is no fee and no charges for KYC Filed before the 31st August 2019 provided that he has been allotted a Director Identification Number DIN on or before 31st March 2019 and whose DIN is in approved status. After 31st August 2019 DIN has got deactivated and due to non-filing of DIR 3 Form. the Applicants need to file again after 31st August 2019 by filing fee Rs 5000.

Other Points to Remember:

1. The Name of the DIN holder in the Digital Signature Certificate must be same as the name in Permanent Account Number. Filing KYC with MCA will not be possible if there is a minor change in name of Digital Signature.
2. If the person holds Aadhaar, it is mandatory to mention Aadhaar number
3. If the person holds a valid Passport, it is mandatory to mention passport Number
4. Personal Mobile Number, Person Resident in India can use only Indian Phone Numbers.
5. Person resident outside India cannot use Indian Phone numbers for verification.

4. Form MSME-1

Due date April 30, 2019

Applicability of MSME Act:

As per Section 7 of THE MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006, following is the classification of Enterprise on the basis of Investment in Plant & Machinery / Equipment.

Micro and small enterprises refer to any class or classes of enterprises, whether proprietorship, Hindu Undivided Family (HUF),Association of Persons (AOP), co-operative society, partnership firm, company or undertaking or any other name assigned to it.

Calculating the value of plant and machinery

Registration under MSME and its benefits

If your company has yet to pay for the goods and services taken from MSMEs (Micro Small and Medium Enterprise) and it has been 45 days since you accepted the goods/services from them, then you need to file a half-yearly return through the MCA form MSME-1. It shall detail the following:

1. The amount of payment due.
2. The reason for the delay.

To put it in simpler terms:-

Every company which has received services or goods from MSMEs and payment for those services haven’t been made 45 days after receiving them has to file MCA form MSME-1.

Note – The applicability of form MSME-1 is for all types of business entities registered with the MCA including One Person Company, Private Limited Company, Public Limited Company, and others.

Procedure to File Form MSME-1

The procedure of filing MCA form MSME-1 is as follows:

1. Identification of MSME suppliers and asking them for their registration certificate.
2. Filing the form with the required documents
3. Submitting the form.

Applicable Limits:

As per MSME Act, 2006; Limit of amount doesn’t matter to check whether payment made in 45 days or not. Say, If due amount is Rs. 100/- only and doesn’t get paid in 45 days. Specified Companies needs to report the same to ROC in e-form MSME-1.

What are the steps to be taken by the Specified Enterprise?

1.) Identify the suppliers Registered under MSME Act : First, they have to find out from their suppliers whether they are Registered under MSME Act then ask for submission of their Registration Certificate.

2.) If there are any such suppliers who are Registered under MSME Act and if the payments to them are due for more than 45 days from the date of acceptance of the goods and services, then we have to pay them their all dues immediately, otherwise the Specified Company shall be liable to file MSME Form I.

Documents Required for File Form MSME-I

The information required to be filed in MSME-1 form are as following:

1. Total outstanding amount. The total outstanding amount due on the 22^nd of January, 2019. It may be noted that this is a one-time return, which is to be submitted by the 21^st of February, 2019 (now delayed).
2. Name of the supplier.
3. PAN of the Supplier.
4. Date from which the amount was due.
5. Reason or reasons in payment delay.

Exemption to this Rule:

a. If payment Exceed 45 days but supplier/Creditors given a declaration that they do not fall under Micro or small Enterprises

b. As per language of Notification, if all the vendors/ creditors of Company are NON- MSME registered. In such case there is no need to file e-form MSME-1

c. This Rule applicable only for those Specified Companies whose payment to Micro & Small Enterprises exceed 45 days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of section 9 of the MSME Development Act, 2006

Due Date of Filling MSME-I

The final date of filing MSME-1 form from the date of notification was 21^st February 2019. However, the final dates of subsequent returns shall be:

1. For Half yearly period from April to September: 31^st October.
2. For Half-yearly period from October to March: 30^th April.

Penalties for Non Filing of MSME-01 Form

Not filing the form MSME-1 shall lead to penalty as per Companies Act 2013:

1. Penalty to the company: Up to Rs. 25,000/-.
2. Penalty to the directors, CS, and CFOs: imprisonment up to 6 months or fine from Rs 25,000/-to Rs. 3, 00, 000/-.

A sample of Letter of Request that will be forwarded by the Company to its Creditors.

                                                                  Letter of Request Date : Dear Sir/Madam, Sub: Micro, Small and Medium Enterprises Certificate As per the Notification issued by the Ministry of Corporate Affairs on 22nd January 2019, you are requested to inform whether your organization is falling under MSME Category or not. If yes, please send the confirmation letter along with duly attested copy of MSME Registration Certificate and PAN latest by 7th April 2019. If no communication is received by us within that date, we will consider that your organization does not fall under MSME Category. Please treat the matter as URGENT! Regards, For ……………………………..Limited Authorized Signatory

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DISCLAIMER: The views expressed are strictly of the author and Kanhaiya Gautam and Associates. The contents of this article are solely for informational purpose. It does not constitute professional advice or recommendation of firm. Neither the author nor firm and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any information in this article nor for any actions taken in reliance thereon.Users of this information are expected to refer to the relevant existing provisions of applicable Laws.