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A defaulting company that wants to take benefit of the Settlement Scheme needs to follow the following process, described briefly.
(1) Ensure that its paid-up capital is as per law – INR 100,000 for private and INR 500,000 for public companies;
(2) If that is not the case, enhance the capital first;
(3) Then, take steps for filing other statutory documents upon payment of the additional fee;
(4) Withdraw the appeal (if any) filed against any notice issued or complaint filed before the competent court for violation of the provisions under the Act in respect of which the application is made under the Settlement Scheme;
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(5) ROC will scrutinize the filed documents and verify that the required fees are paid;
(6) An electronic application, in the prescribed format, must be made for seeking immunity which must be made either when the documents have been taken on file, or on record, or approved, as the case may be. It is important that such application must be made within a period of six months from the date of closure of the Scheme;
(7) ROC must be satisfied by the application filed by the company to avail the Settlement Scheme, and will grant an immunity certificate accordingly; and
(8) After granting the immunity certificate, the ROC shall withdraw the prosecution(s) pending (if any) before the concerned authorities.
(a) for incorporation or establishment of place of business in India, or
(b) where a specific order for condo nation of delay or prior approval under the provisions of the Act is to be obtained from the Company Law Board, or the Central Government, or a court or any other competent authority.
(1) Any defunct company that wants its name struck-off can apply electronically to the ROC in Form EES, – Interestingly, there is no fee payable with this application;
(2) The application has to be supported with an affidavit sworn by each of the directors affirming that the company has not carried out any business since incorporation, or that the company did business for a specified period and then discontinued, and has not done any business since April 1, 2008;
(3) In addition, the application must be accompanied with an indemnity bond to be given by every director (individually or collectively), stating that any losses, claim and liabilities on the company will be met in full by every director individually or collectively, even after the name of the company is struck-off the register of companies;
(4) The company must also provide a certified account statement, duly certified by the statutory auditor or a chartered accountant in whole-time practice.
(5) Where the applicant company is a Non-Banking Financial Company(s), or a Collective Investment Management Company(s), the ROC shall, on a weekly basis notify such companies availing EES, during that period to the concerned regulator(s) i.e. the Reserve Bank of India, and Securities Exchange Board of India, respectively;
(6) The ROC shall also notify the office of the Income Tax Department giving thirty days time for their objection, if any; in respect of all companies availing EES, ;
(7) The ROC shall review the application, and if satisfied, shall notify the company that unless cause is shown to the contrary, its name shall be struck-off from the register.
(8) The name of the company shall be struck-off with effect from the date of publication of the notice in the official gazette.
The EES does not apply to the following types of entities:-
> listed corporations;
> section 25 companies (non-governmental organizations and societies);
> vanishing companies;
> Those under investigation or prosecution;
> Companies against which prosecution for a non-compoundable offence is pending in court,
> companies having outstanding public deposits or where the company is in default of repayment;
> companies having secured loan or dues towards income-tax, sales tax, or central excise or banks and financial institutions or any other government departments – at the central/state levels or any local authority;
> Companies having management dispute; or
> Companies in respect of which filing of documents have been stayed by court or Company Law Board or Central Government or any other competent authority.
The MCA needs to be lauded for this unique initiative to provide defaulting and defunct companies to set their house in order. It now remains to be seen whether corporate India will take advantage of these schemes and ensure
Read more : CLOSURE OF SUBSIDIARY COMPANY
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