In last post, we discussed about register of members, register of debenture – holders and register of other security holders. Now, we will discuss, some other provisions related to these registers and also about annual return.
PLACE OF KEEPING AND INSPECTION OF REGISTERS AND RETURNS (SECTION 94):
The registers required to be kept and maintained by a company under section 88 and copies of the annual return filed under section 92 shall be kept at the registered office of the company.
These registers or copies of return may also be kept at any other place in India in which more than one-tenth of the total numbers of members entered in the register of members reside. This should be approved by a special resolution passed at a general meeting of the company and the Registrar has been given a copy of the proposed special resolution in advance.
The term used here is ‘may also be kept” suggest that this is an additional requirement along with the registered office. This may not be an intention and this “also” me be deleted.
The registers and their indices and the copies of all the returns shall be open for inspection by any member, debenture-holder, other security holder or beneficial owner, during business hours without payment of any fees and by any other person on payment of fees. When these registers are closed as per Section 91 these are not open for inspection.
Any such member, debenture-holder, other security holder or beneficial owner or any other person may—
(a) take extracts from any register, or index or return without payment of any fee; or
(b) require a copy of any such register or entries therein or return on payment of such fees as may be prescribed.
If any inspection or the making of any extract or copy is refused, the company and every officer of the company who is in default shall be liable, for each such default, to a penalty of one thousand rupees for every day subject to a maximum of one lakh rupees during which the refusal or default continues. The Central Government may also, by order, direct an immediate inspection of the document, or direct that the extract required shall forthwith be allowed to be taken by the person requiring it.
REGISTERS AS EVIDENCE (SECTION 95):
The registers, their indices and copies of annual returns shall be prima facie evidence of any matter directed or authorised to be inserted therein by or under this Act.
ANNUAL RETURN (SECTION 92):
Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding—
(a) its registered office, principal business activities, particulars of its holding, subsidiary and associate companies;
(b) its shares, debentures and other securities and shareholdings pattern;
(c) its indebtedness;
(d) its members and debenture-holders along with changes therein since the close of the previous financial year;
(e) its promoters, directors, key managerial personnel along with changes therein since the close of the previous financial year;
(f) meetings of members or a class thereof, Board and its various committees along with attendance details;
(g) remuneration of directors and key managerial personnel;
(h) penalty or punishment imposed on the company, its directors or officers and details of compounding of offences and appeals made against such penalty or punishment;
(i) matters relating to certification of compliances, disclosures as may be prescribed;
(j) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholdings held by them; and
(k) such other matters as may be prescribed.
Under present law, this is a notable change that all particulars are to be filed as on closing of the financial year not as on date of Annual General Meeting.
The Annual Return shall be signed by a director and the company secretary of the company. Annual return may be signed by any director authorised by the Board not necessarily by managing or whole time director. This is also a fact that under present act, all companies may not be required to employ a company secretary and where company has no company secretary of the company then; annual return shall be signed by a company secretary in practice.
Please note, where company is required to have accompany secretary in employment but do not have one, is also an offence under this Act.
In case of One Person Company and small company the annual return shall be signed by the company secretary not by the director. However, where company has no company secretary, annual return shall be signed by the director, not by a company secretary in practice.
Certificate by Company Secretary: The annual return, filed by a listed company or, by a company having such paid-up capital and turnover as may be prescribed, shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act. If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made thereunder, he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.
This certificate is replacement of compliance certificate of earlier Act.
An extract of the annual return in such form as may be prescribed shall form part of the Board’s report.
Filing of Annual Return: Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed, within the time as specified, under section 403.
When Annual Return has no link with Annual General Meeting, I do not find any reason why the company should wait for annual general meeting before filing the annual return. This only makes an outdated annual return in public domain at the time of its filing itself. This position need to be corrected.
If a company fails to file its annual return under sub-section (4), before the expiry of the period specified under section 403 with additional fee, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.
RETURN OF CHANGE IN PROMOTERS’ STAKE (SECTION 93):
Every listed company shall file a return with the Registrar with respect to change in the number of shares held by promoters and top ten shareholders of such company, within fifteen days of such change.
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- MEMBERS AND DEBENTURES – HOLDERS (Companies Act, 2013) (aishmghrana.me)
- ALTERATION OF SHARE CAPITAL (Companies Act 2013) (aishmghrana.me)
- PURCHASE OF OWN SHARES AND BUYBACK (Companies Act, 2013) (aishmghrana.me)
- DEBENTURE (Companies Act 2013) (aishmghrana.me)