Fee for Filing

The Companies Amendment Act, 2017 read with Notification S.O. 1833(E) dated 7th May 2018 amended law related to fee for the filing of forms. This may be considered most strict amendment introduced by the Amendment Act. As a result, companies need to pay an increased filing fee calculated on daily basis. Presently only first proviso related to additional fee for annual forms has been notified. The second and third proviso may be notified soon. The third proviso is harsh in nature.

Basic Filing Fee

According to Subsection (1) of Section 403, any document, required to be submitted, filed, registered or recorded, or any fact or information required or authorised to be registered under this Act, shall be submitted, filed, registered or recorded within the time specified in the relevant provision on payment of such fee as may be prescribed.

Rule 12(1) of the Companies (The Registration Office and Fees) Rules 2014 read with sub – item A of Item I of Annexure Table of Fees to these rules prescribes fee mentioned in this subsection. Present fee table under this sub-item was amended with effect from 26^th January 2018.

Additional Fee for Section 92 and 137

First Proviso to subsection (1) of section 403 prescribed for additional fee where any document, fact or information required to be submitted, filed, registered or recorded, as the case may be, under section 92 or 137 is not submitted, filed, registered or recorded, as the case may be, within the period provided in those sections.

The additional fee shall be applicable after the expiry of the period so provided in those sections. The additional fee, in this case, shall not be less than one hundred rupees per day and different amounts may be prescribed for different classes of companies.

This is notable that this additional fee is without prejudice to any other legal action or liability under this Act.

Rule 12(1) of the Companies (The Registration Office and Fees) Rules 2014 read with sub – item D of Item I of Annexure Table of Fees to these rules prescribes fee mentioned in this subsection. A new table is inserted under this sub-item:

“(i) In case the period within which a document required to be submitted under section 92 or 137 of the Act expires after 3o/o6/2018, the additional fee mentioned in Table shall be payable –

In all other cases where the belated annual returns or balance sheet/financial statement which were due to be filed whether in the Companies Act, 1956 or the Companies Act, 2013 the following additional fee mentioned in Table shall be payable:-

(1) The additional fee shall also be applicable to revised financial statement or board’s report under section 130 and 131 of the Act and secretarial audit report filed by the company secretary in practice under section 204 of the Act.

(2) The belated filing of documents/forms (including increasing in nominal capital and delay caused thereon) which were due to be filed whether in Companies Act, 1956 Act or the Companies Act, 2013 Act i.e due for filing prior to notification of these fee rules, the fee payable at the time of actual filing shall be applicable”

Additional Fee for Sections other than 92 and 137

Second Proviso to subsection (1) of section 403 prescribed for additional fee where any document, fact or information required to be submitted, filed, registered or recorded, as the case may be, in cases other than referred to in the first proviso is not submitted, filed, registered or recorded, as the case may be, within the period provided in those sections.

{Note: the second proviso yet not notified}

The additional fee shall be applicable after the expiry of the period so provided in those sections. The additional fee, in this case, shall not be less than one hundred rupees per day and different amounts may be prescribed for different classes of companies.

This is notable that this additional fee is without prejudice to any other legal action or liability under this Act.

Rule 12(1) of the Companies (The Registration Office and Fees) Rules 2014 read with sub – item B of Item I of Annexure Table of Fees to these rules prescribes fee mentioned in this subsection. A new table is substituted in the earlier table under this sub-item:

Following Table of the additional fee shall be applicable for delay in filing of forms other than for the increase in Nominal Share Capital or forms under section 92/137 of the Act:

Note- The belated filing of documents/forms (including increasing in nominal capital and delay caused thereon) which were due to be filed whether in Companies Act, 1956 Act or the Companies Act, 2013 Act i.e due for filing prior to notification of these fee rules , the fee payable at the time of actual filing shall be applicable.

For the forms pending for filing at the date of this amendment in these rules, this additional fee is an additional not filed to the additional fee which is already incurred.

Twice the Additional Fee

Third Proviso to subsection (1) of section 403 prescribed for the additional fee where there is default on two or more occasions in submitting, filing, registering or recording of the document, fact or information. Such additional fee which shall not be lesser than twice the additional fee provided under the first or the second proviso as applicable.

{Note: the third proviso yet not notified}

In case of the second or subsequent filing of a form, document fact or information for any reason, additional fee for same company shall be twice. A similar case is for forms covered in the second proviso. Soon, it will be normal for the company to attract the double additional fee in case of any subsequent event of late filing. The triggering condition “two or more occasions” is not qualified by “continuous”. This may be very harsh and unreasonable. Like Where MGT-7 filed late during the year 2018 and thereafter in the year 2020 or thereafter, the additional fee shall be twice the additional fee mentioned in the first proviso for any subsequent filing of MGT – 7.

Let us see how ministry frame the law after notification.

Punishment and penalty

According to subsection (2) of Section 403 as amended, where a company fails or commits any default to submit, file, register or record any document, fact or information under sub-section (1) before the expiry of the period specified in the relevant section, the company and the officers of the company who are in default, shall, be liable for the penalty or punishment provided under this Act for such failure or default. This penalty or punishment shall be without prejudice to the liability for the payment of fee and additional fee.[1]

This is a very stringent provision.

The Third Proviso

In case of delay beyond the original period for filing given in relevant section, the company shall be liable to:

• Original Fee +
• Additional Fee +
• Maybe (twice the additional fee) +
• Penalty for company +
• Penalty and punishment for the officers of the company.

What could be the possible remedy in case of accidental late filing? Any Idea??

[1] Original section 403(2) with effect from 1st April 2014 to 6th May 2018 –

Where a company fails or commits any default to submit, file, register or record any document, fact or information under sub-section (1) before the expiry of the period specified in the first proviso to that sub-section with additional fee, the company and the officers of the company who are in default, shall, without prejudice to the liability for payment of fee and additional fee, be liable for the penalty or punishment provided under this Act for such failure or default.