Step-by-Step Procedure Winding Up Of Company

WINDING UP OF COMPANY BY TRIBUNAL

BRIEF INTRODUCTION

• As per the notification issued by the Ministry of Corporate Affairs, dated 24 January 2020, and the same provides for Companies (Winding Up) Rules, 2020 (Rules).
• It was provided that the said rules shall be applicable in respect of companies undergoing ‘winding up due to circumstances mentioned u/s 271’ still as ‘Summary procedure for liquidation u/s 361’ of Companies Act, 2013. 
• The notification allows certain class of companies to shut their business by making a winding up application to Central Government without having to go to National Company Law Tribunal (‘Tribunal’).
• Companies (Winding-Up) Rules 2020 shall become effective from 1st April 2020.
• The said rules tend to reduce the burden of National Company Law Tribunals (NCLTs), by enabling the ordering of summary procedures for liquidation.
• Petitions in respect of winding up of companies shall be subject to numerous conditions, comprising of thresholds limit on turnover and paid-up capital of the concerned company.

FEATURES OF THE WINDING UP OF THE COMPANY

Key features of the winding up of the corporate under the rules of 2020

MCA has provided the rules for the winding up for small business without going to the tribunal under the companies Act 2013. For the purpose of clause (ii) of sub-section (1) of section 361[1], the category of small business include:

1.      Company which has taken a deposit and total outstanding deposits aren’t over 25 Lakhs.

2.      In case the corporate entity which has the full outstanding loan, including secured loan isn’t over 50 Lakhs.

3.      Company having turnover of up to 50 Crores.

4.      Finally Corporate entity having paid-up capital of up to 1 Crore.

Read more about: overview on winding up of a company 

·         The OL is required to maintain proper registers and Books of Accounts, in respect of all the transactions undertaken by them and the same shall be prepared within the manner provided in rules 79 and 80.

·         For purpose of filing and audit of the OL’s account the procedure laid down within the preceding rules 91 to 99 shall be followed by modification that wherever the word Tribunal has been mentioned, the same shall be read as Central Government.

·         Disposing assets also within the rules (165 to 167) Tribunal shall be read as Central Government.

·         All the monies being received by the Official Liquidator, shall be deposited by him into the general public account of India in the Bank of India.

·         For the proving of claims the Tribunal within the rules (100 to 125) shall be read as Central Government.

·         In case, no rule has been provided under this Part, in respect of conduct of liquidation proceeding by the Official Liquidator, the relevant rules, being provided under other Parts of those rules shall be followed along with the necessary modifications as directed by the Central Government

Also read : Winding up of Private Limited Company 

WINDING UP BY TRIBUNAL

·      AS per Rule 3- As per section 272 (1), a petition shall be filed, in respect of carrying out of a corporate entity and the same shall be made in Form WIN 1 or Form WIN 2. The petition must be verified by an affidavit by all petitioners in Form WIN 3.

·      According to Rule 4- As per the section 272 (4), the Statement of Affairs shall be filed in Form WIN 4, along with the information relating to last 30 days before the date of filing the petition. The same shall be duly verified by an affidavit made in Form WIN 5.

·       Rule 5- The tribunal gives the corporate a chance of being heard when the filing of the petition for winding up is made by a person. Afterwards provides direction to publish an ad and furnish the copies to the concerned persons of effecting.

Read more about: All about moratorium us 14 of ibc 2016-including judicial pronouncements 

·      The Rule 6- The petitioner needs to furnish the copies to each contributory of the corporate within 24 hours and made payment of 5 rupees per page for the identical.

·      Rule 7- The notice of the petition should be published within the newspaper before 14 days of the date fixed for the hearing. Such an advertisement shall be made in Form WIN 6.

·      The Rule 8- The permission by the tribunal is required for the withdrawal of the petition of completing.

·      Rule 9- The substitution of the petitioner within the case where he’s not entitled to present the petition for completing or if the petitioner fails to advertise the petition or obtain the consent to withdraw the petition or where the Tribunal provide for the substitute of the petitioner.

·      The Rule 10- In case, the tribunal substitutes a petitioner in a winding-up petition, the same required for the amendment in the petition. Within 7 days from the order of such amendment, two fresh copies will be required to be furnished along with an affidavit attached and the same shall be treated as a new petition for concluding of the corporate.

·       Rule 11- Any objections raised within the affidavit filed by the petitioner shall be filed within 30 days from the date of the order and require to form payment of 5 rupees per page within three working days.

·       The Rule 12- Affidavit back must be filed within 7 days from the date of hearing against the affidavit in objection.

Read more about: Summary procedure for winding up of companies

 

STEP-BY-STEP PROCEDURE

SR NO.	PARTICULARS	FORM	TIME PERIOD AND MODE OF DISSEMINATION
1	PETITION TO TRIBUNAL SECTION 272 (1)	WIN 1 / WIN 2 (IN TRIPLICATE)	–
2	AFFIDAVIT VERIFYING PETITION	WIN 3	–
3	STATEMENT OF AFFAIRS AFFIDAVIT	WIN 4 (IN DUPLICATE) WIN 5	STATEMENT SHALL BE IN RESPECT OF LAST 30 DAYS OF OPERATION.
4	ADVERTISEMENT OF PETITION	WIN 6	ATLEAST 14 DAYS PRIOR TO HEARING AND IN THE DAILY NEWSPAPER ENGLISH AND VERNACULAR LANGUAGE, HAVING WIDE CIRCULATION.
5	ORDER APPOINTING PROVISIONAL LIQUIDATOR (PL)	WIN 8	–
6	INTIMATION OF APPOINTMENT TO PROVISIONAL LIQUIDATOR OR COMPANY LIQUIDATOR (CL) BY REGISTRAR	WIN 9	WITHIN 7 DAYS FROM THE  PASSING OF ORDER THROUGH REGISTERED POST OR SPEED POST OR BY COURIER SERVICE OR BY ELECTRONIC MEANS
7	PL / CL SHALL FILE DECLARATION DISCLOSING CONFLICT OF INTEREST OR LACK OF INDEPENDENCE IN RESPECT OF HIS APPOINTMENT	WIN 10	WITHIN 7 DAYS FROM THE DATE OF APPOINTMENT
8	THE PL / CL AS THE CASE MAY BE SHALL BE APPOINTED BY THE TRIBUNAL FROM AMONGST THE INSOLVENCY PROFESSIONALS REGISTERED UNDER IBC, 2016 UNLESS THE OFFICIAL LIQUIDATOR IS APPOINTED	–	–
9	ORDER FOR WINDING UP	WIN 11	–
10	ORDER FOR WINDING UP TO BE SENT TO CL BY REGISTRAR	WIN 12	WITHIN 7 DAYS FROM THE DATE OF RECEIPT OF ORDER REGISTRAR
11	ORDER TO BE SENT TO ROC	WIN 13	WITHIN 7 DAYS FROM DATE OF RECEIPT OF ORDER BY REGISTRAR
12	CL SHALL SENT THE SEALED ORDER TO COMPANY	–	AS PER SECTION 20
13	ORDER TO BE FILED TO ROC BY LIQUIDATOR	INC 28	WITHIN 30 DAYS OF RECEIPT OF ORDER FROM TRIBUNAL
14	ADVERTISEMENT OF ORDER	WIN 14	WITHIN 14 DAYS OF ORDER (DAILY NEWSPAPER ENGLISH AND VERNACULAR LANGUAGE WIDELY CIRCULATED)
15	COMPANY LIQUIDATOR TO TAKE CHARGE OF ASSETS AND BOOKS AND PAPERS OF COMPANY ON ORDER OF WINDING UP.	–	ON ORDER OF WINDING UP
16	APPLICATION UNDER SECTION 279(1) FOR LEAVE OF THE TRIBUNAL TO COMMENCE OR CONTINUE ANY SUIT OR OTHER LEGAL PROCEEDING BY OR AGAINST THE COMPANY.	WIN 15	–
17	REPORT TO BE SUBMITTED UNDER SECTION 281(1) TO TRIBUNAL AND TRIBUNAL SHALL, WITHIN 7 DAYS FROM RECEIPT OF SUCH REPORT, PROVIDE FOR A DATE THEREOF AND NOTIFY SUCH DATE ON THE NOTICE BOARD OF THE TRIBUNAL AND TO THE COMPANY LIQUIDATOR.	WIN 16	–
18	PROVISIONAL LIST OF CONTRIBUTORIES TO BE FILED BY CL TO TRIBUNAL	WIN 17	WITHIN 21 DAYS AFTER THE DATE OF THE WINDING UP ORDER
19	CL TO OBTAIN A DATE FROM THE TRIBUNAL FOR SETTLEMENT AND GIVE NOTICE OF THE DATE APPOINTED TO EVERY PERSON INCLUDED IN THE LIST. ALSO, HE SHALL INFORM ANY SUCH PERSON BY NOTICE, WHO IS INTENDED TO OBJECT IN THE SETTLED PROCEEDING. HE SHOULD FILE IN TRIBUNAL HIS AFFIDAVIT IN SUPPORT OF HIS CONTENTION AND SERVE A COPY OF THE SAME ON THE CL NOT LESS THAN 2 DAYS BEFORE THE DATE FIXED FOR THE SETTLEMENT, AND APPEAR BEFORE TRIBUNAL ON APPOINTED DATE FOR SETTLEMENT IN PERSON OR BY AUTHORISED REPRESENTATIVE.	WIN 18	NOT LESS THAN 14 DAYS BEFORE THE DATE OF SETTLEMENT THROUGH MODE AS PER SECTION 20
20	PERSON WHO POSTED NOTICE AS PER POINT 19 SHALL FILE AFFIDAVIT RELATING TO DISPATCH	WIN 19	NOT LATER THAN 2 DAYS BEFORE THE DATE FIXED FOR THE SETTLEMENT OF THE LIST
21	LIST WHEN SETTLED SHALL BE CERTIFIED BY TRIBUNAL UNDER ITS SEAL	WIN 20	–
22	UPON RECEIPT OF CERTIFICATION BY THE TRIBUNAL, THE CL SHALL ISSUE NOTICE AND SHALL INFORM SUCH PERSON THAT ANY APPLICATION FOR THE REMOVAL OF HIS NAME FROM THE AFORESAID LIST OR IN CASE OF VARIATION IN THE SAID LIST, MUST BE MADE TO THE TRIBUNAL WITHIN 15 DAYS FROM THE DATE OF SERVICE ON THE NOTICE. AFFIDAVIT OF SERVICE RELATING TO DISPATCH	WIN 21 WIN 22	WITHIN 7 DAYS FROM RECEIPT OF CERTIFIED COPY FROM TRIBUNAL AND SAME TO BE SENT THROUGH PRE-PAID REGISTERED POST OR SPEED POST WITHIN 7 DAYS OF SAID DISPATCH
23	AS PER SECTION 287(3) THE MEETING OF CREDITORS AND CONTRIBUTORIES SHALL DETERMINE THE PERSONS WHO, BEING THE MEMBERS OF THE ADVISORY COMMITTEE, IN ORDER TO CONVENE, HELD AND CONDUCTED, AS PER THE MANNER PRESCRIBED IN THESE RULES FOR THE HOLDING AND CONDUCTING OF MEETING OF CREDITORS AND CONTRIBUTORIES	–	–
24	CL TO REPORT TO TRIBUNAL THE RESULT OF THE MEETING	WIN 23	WITHIN 7 DAYS OF THE CONCLUSION OF MEETING
25	WHEN THE COMPOSITION OF ADVISORY COMMITTEE IS NOT AGREED UPON THE CL SHALL AT THE TIME OF MAKING REPORT WILL APPLY TO TRIBUNAL FOR DIRECTIONS FOR COMPOSITION, AND THEREUPON FIX A DATE FOR CONSIDERATION OF REPORT OF CL AND NOTICE OF THE DATE FIXED SHALL BE ADVERTISED	WIN 24	NOT LESS THAN 7 DAYS BEFORE THE DATE FIXED
26	NOTICE OF MEETING OF CREDITORS AND CONTRIBUTORIES. THE NOTICE SHALL BE SENT TO THEIR ADDRESS IN ADDRESS PROOF, IF HE HAS NOT SO PROVED, TO THE ADDRESS, BEING PROVIDED IN THE STATEMENT OF AFFAIRS, OR, AS PROVIDED IN THE BOOKS OF THE COMPANY, AND THE NOTICE TO EACH CONTRIBUTORY SHALL BE SENT TO THE ADDRESS MENTIONED IN THE BOOKS OF THE COMPANY AS THE ADDRESS OF SUCH CONTRIBUTORY OR TO SUCH OTHER ADDRESS AS MAY BE KNOWN TO THE PERSON SUMMONING THE MEETING	WIN 25 TO 29	AT LEAST 14 DAYS BEFORE THE DATE OF MEETING THROUGH REGISTERED POST OR SPEED POST OR BY ELECTRONIC MEANS. WHERE THE CREDITORS OR CONTRIBUTORIES, EXCEEDS 500, THE CL SHALL GIVE 14 DAYS NOTICE IN ONE DAILY ENGLISH NEWSPAPER AND ONE DAILY NEWSPAPER IN PRINCIPAL LANGUAGE
27	NOTICE OF FIRST OR OTHER MEETING TO OFFICERS OF COMPANY AFFIDAVIT BY ANY PERSON WHO SENT THE NOTICE, SHALL BE SUFFICIENT EVIDENCE OF THE NOTICE HAVING BEEN SENT TO THE PERSON TO WHOM THE SAME WAS ADDRESSED	WIN 30 WIN 31	BEFORE 14 DAYS OF THE DATE OF MEETING
28	CL OR SOME PERSON NOMINATED BY HIM SHALL BE THE CHAIRMAN OF THE MEETING	WIN 32	–
29	CL SHALL FILE IN THE TRIBUNAL A COPY CERTIFIED BY HIM OF EVERY RESOLUTION PASSED AT A MEETING AND THE REGISTRY SHALL KEEP IN EACH CASE A FILE OF SUCH RESOLUTION.	–	–
30	MINUTES OF THE PROCEEDINGS TO BE ENTERED IN THE MINUTE BOOK WITHIN 30 DAYS AND THE MINUTES SHALL BE SIGNED BY HIM OR BY THE CHAIRMAN OF THE NEXT MEETING.	WIN 33	–
31	CL SHALL REPORT THE RESULT OF THE MEETING TO TRIBUNAL	WIN 34	WITHIN 7 DAYS OF THE CONCLUSION OF MEETING
32	GENERAL PROXY OR SPECIAL PROXY	WIN 35 OR WIN 36	SHALL BE LODGED NOT LATER THAN 48 HOURS BEFORE THE MEETING WITH THE CL
33	CL SHALL MAKE QUARTERLY REPORTS AS REFERRED TO IN SECTION 288(1) TO THE TRIBUNAL WITH RESPECT TO THE PROGRESS OF WINDING UP OF THE COMPANY.	WIN 37	QUATERLY
34	DECLARATION BY PROFESSIONAL DISCLOSING ANY CONFLICT OF INTEREST OR LACK OF INDEPENDENCE IN RESPECT OF HIS APPOINTMENT WITH TRIBUNAL FORTHWITH.	WIN 38	–
35	RECORD BOOK TO BE MAINTAINED BY CL	WIN 38A TO 38T	–
36	CL TO FILE HALF YEARLY ACCOUNTS TO TRIBUNAL		30TH JUNE AND 30TH SEPTEMBER
37	TRIBUNAL MAY PERMIT THE CL TO STRAIGHT AWAY FORWARD COMPLETED ACCOUNTS OF THE COMPANY IN LIQUIDATION IN RESPECT OF RELEVANT PERIOD TO THE AUDITOR FOR THE PURPOSE OF AUDIT AND THEREBY REQUESTING THAT THE ACCOUNTS SHALL BE AUDITED, AND A CERTIFICATE OF AUDIT SHALL BE SUBMITTED TO THE TRIBUNAL.	WIN 42	CERTIFICATE OF AUDIT NOT LATER THAN 1 MONTH FROM THE DATE OF RECEIPT OF THE COPY OF THE ACCOUNTS
38	STATEMENT OF RECEIPTS AND PAYMENTS AFFIDAVIT OF CL FINAL ACCOUNTS	WIN 39 WIN 40 WIN 41	–
39	THE ACCOUNTS SHALL BE AUDITED PREFERABLY BY ONE OR MORE CA’S APPOINTED BY TRIBUNAL FROM OUT OF THE PANEL TO BE MAINTAINED BY TRIBUNAL, THE AUDIT SHALL BE COMPLETE CHECK OF ACCOUNTS OF CL.	–	–
40	NOTICE FOR PROVING DEBTS	WIN 43	WITHIN 30 DAYS FROM ORDER FIX THE DATE AND GIVE 14 DAYS
41	PROOF OF DEBTS AND CONTENTS OF PROOF	WIN 44	–
42	WORKMEN DUES	WIN 45	–
43	CL SHALL WITHIN 30 DAYS ON AN APPLICATION BY THE LIQUIDATOR, EXAMINE EVERY PROOF AND IF REQUIRES THE CREDITOR TO ATTEND INVESTIGATION IN PERSON SHALL FIX A DAY AND SEND NOTICE IN PRESCRIBED FORM.	WIN 46	NOTICE TO BE SEND BEFORE 7 DAYS OF THE DATE FIXED BY PRE-REGISTERED POST OR SPEED POST
44	COMMUNICATION OF ACCEPTANCE OF PROOF COMMUNICATION OF REJECTION OF PROOF	WIN 48 WIN 47	WITHIN 14 DAYS OF CONCLUSION OF EXAMINATION OF DEBTS THROUGH MODES IN SECTION 20
45	APPEAL BY CREDITOR SUPPORTED BY AFFIDAVIT	WIN 49	NOT LATER THAN 21 DAYS FROM THE DATE OF SERVICE OF THE NOTICE
46	PROOF AND LIST OF CREDITORS TO BE FILED IN TRIBUNAL	WIN 50
47	CL FOR PURPOSE OF ACQUIRING AND RETAINING POSSESSION OF THE PROPERTY OF THE COMPANY, BE IN THE SAME POSITION AS IF HE WERE A RECEIVER OF THE PROPERTY APPOINTED BY THE TRIBUNAL.
48	ANY CONTRIBUTORY FOR THE TIME BEING ON THE LIST OF CONTRIBUTORIES, TRUSTEE, RECEIVER, BANKER, AGENT, OFFICER OR OTHER EMPLOYEE OF A COMPANY WHICH IS BEING WOUND UP, SHALL ON NOTICE FROM THE CL AND WITHIN SUCH TIME AS HE SHALL BY NOTICE REQUIRE, PAY, DELIVER, CONVEY, SURRENDER OR TRANSFER TO OR INTO THE HANDS OF THE CL ANY MONEY, PROPERTY OR BOOKS AND PAPERS IN HIS CUSTODY OR UNDER HIS CONTROL TO WHICH THE COMPANY IS OR APPEARS TO BE ENTITLED AND WHERE THE PERSON FAILS TO COMPLY WITH THE NOTICE, THE CL SHALL APPLY TO THE TRIBUNAL, IN ORDER TO TAKE APPROPRIATE ORDERS.	WIN 51
49	EVERY PROPERTY OR ASSET BELONGING TO COMPANY SHALL BE SOLD BY CL AFTER CONFIRMATION FROM TRIBUNAL.
50	ALL SALES SHALL BE MADE BY PUBLIC AUCTION OR BY INVITING SEALED TENDERS OR BY ELECTRONIC BIDDING OR IN SUCH MANNERS AS THE TRIBUNAL MAY DIRECT.
51	WHERE PROPERTY FORMING PART OF A COMPANY’S ASSETS IS SOLD BY THE COMPANY LIQUIDATOR THROUGH AN AUCTIONEER OR OTHER AGENT, THE GROSS PROCEEDS OF THE SALE SHALL, BE PAID OVER TO THE LIQUIDATOR BY SUCH AUCTIONEER OR AGENT AND THE CHARGES AND EXPENSES CONNECTED WITH THE SALE SHALL AFTERWARDS BE PAID TO SUCH AUCTIONEER OR AGENT IN ACCORDANCE WITH THE SCALES, IF ANY, FIXED BY THE TRIBUNAL.

CONCLUSION

• Winding up of a company can be done using a summary procedure, provided the assets of the said entity is below Rs one crore, and thereby reducing the burden of NCLT.
• According to new Companies rules for winding up, the central government provides guidance and has the authority to deal up with the winding up of the corporate.
• We at Rajput Jain and Associates have a team of expert professionals who can facilitate you companies with winding-up procedure yet as post incorporate entity compliance services.

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