Monthly Archives: December 2016

Removal of Name

MCA has promulgated the Companies (Removal of Names of Companies from the Register of Companies), Rules, 2016 vide its notification dated 26th December, 2016. Salient features of the Rules are as follows:

REMOVAL OF NAMES OF COMPANIES FROM THE REGISTRAR OF COMPANIES

  1. Removal of name of the company from Register by ROC on sue-moto basis.

Section 248(1)

ROC may remove the company’s name from the registry on sue-moto pursuant to Section 248(1) of the Companies Act 2013.

Application for removal of name of the company. Section 248(2)

A Company may, after extinguishing all its liabilities, may pass a special resolution filling an application to the Registrar for removal of the name of the Company from the register of companies on the following grounds:

  1. a)    the Company has failed to commence its business within one year of its incorporation.
  2. b)  the Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a Dormant Companyunder section 455.

Such an application can be made by submitting form STK-2 along with the fees of Rs. 5000/- accompanied by the following documents:

  • Indemnity bond duly notarised by every Director in Form STK-3.
  • Statement of account certified by CA (should be upto date, not beyond 30 days from date of application.)
  • An affidavit from every Director in form STK-4.
  • Special resolution duly signed by every Director or consent of 75% of members of the Company in terms of paid up capital as on the date of application.
  • Statement regarding pending litigation, if any involved in the Company.
  1. Form STK-2 shall be signed by Director digitally.
  2. Forms STK-2 be certified by CS/CA/CWA in practice.
  3. The notice under sub-section (1) and sub-section (2) of the section 428 shall be published by MCA, shall be in form SKT-5 and STK-6 respectively. Companies are also required to place an application on its website still its disposal.
  4. Rules has specified specifically mentioned that in case of a foreign national/ NRI, Indemnity Bond and declaration shall be notarised or appostilised or consularised.
  5. Notice of Striking off shall be given by ROC in Form STK-7.

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Powers to Regional Directors

MCA has vide notification dated 19th December, 2016 transferred the following powers to the various offices of Regional Directors.

  1. Section 8(4)(i) – Alteration of the provisions of the memorandum of a section 8 company;
  2. Section 8(6) – Revocation of licence of a section 8 company;
  3. Section 13(4) and (5) – Shifting of registered office from one state to another;
  4. Section 16 – Rectification of name of the company;
  5. Section 87 – Condonation of delay in filing registration, modification and satisfaction of charges;
  6. Section 111(3) – Power to issue order to not issue statement in respect of members’ resolution proposed under that section;
  7. Section 140(1) – Removal of an auditor before expiry of his term;
  8. Section 230(5) – Receipt of notice of meeting called by Tribunal pursuant to a Scheme of compromise or arrangement;
  9. Section 233(2) – To receive copy of the scheme of merger or amalgamation;
  10. Section 233(3) – To register the scheme of merger or amalgamation, if the Registrar or the Official Liquidator has no objections or suggestions to the Scheme and issue a confirmation thereof to the companies;
  11. Section 233(4) – To receive objections or suggestions to the scheme of merger or amalgamation from the Registrar or the Official Liquidator;
  12. Section 233(5)(6) – To file an application before the Tribunal, after receiving the objections or suggestions or for any reason it is of the opinion that the scheme is not in public interest or in the interest of creditors, stating its objections and requesting that the Tribunal may consider the scheme under section 232;
  13. Section 272(3) -first & second proviso – To give sanction to Registrar for presentation of a petition of winding up AND to give sanction only after giving a reasonable opportunity to make a presentation;
  14. Section 348(1) – To give exemption to the company liquidator from filing the statement with respect to the proceedings and the position of the liquidation with the Tribunal;
  15. Section 361 – To order summary winding up of a company, appoint official liquidator as the liquidator of the company; receive a report from the official liquidator including a report whether a fraud has been committed in the promotion, formation, management of affairs of a company; direct further investigation if it is satisfied that a fraud has been committed as above; and order that winding up may be proceeded against the company;
  16. Section 362 – To pass an order for sale of assets on an application made to it by the Official Liquidator;
  17. Section 364 – To receive an appeal filed by the creditor who is aggrieved by the decision of the Official Liquidator; to call for report from Official Liquidator; to either dismiss the appeal or modify the report of the Official Liquidator; to refer the matter, at any stage during the settlement of claims, to the Tribunal for necessary orders;
  18. Section 365 – To receive the final report from the Official Liquidator and to order that the company may be dissolved;
  19. Section 399(1)Proviso (1) – To give permission for electronic inspection or giving certified copies thereof in respect of documents delivered to the Registar with a prospectus under section 26 beyond a period of 14 days from the date of publication of the prospectus;
  20. Section 442 – Mediation and Conciliation panel – maintain a panel of experts; to receive application from parties for referring the matter to the Mediation & Conciliation Panel; to appoint one or more experts from the Panel; to suo moto refer the matter to the Panel; to receive recommendations from the Panel; to accept objections from the parties aggrieved by the recommendations of the Panel

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Gold Jewellery holdings – clarification

Various points clarified with respect to gold jewellery and ornaments; No limit on holding of gold jewellery or ornaments by anybody provided it is acquired from explained sources of income including inheritance.

In order to remove any doubt about the current position of Income Tax Law with respect to gold jewellery and ornaments, the following points are hereby categorically clarified:

(a) There is no limit on holding of gold jewellery or ornaments by anybody provided it is acquired from explained sources of income including inheritance

(b) Vide circular dated 11.5.1994, instructions have been issued in the matter of search and seizure of gold jewellery.

PIB press release dated 1st December, 2016
(c) Jewellery and ornaments to the extent of 500 gms for married lady, 250 gms. for unmarried lady and 100 gm for male member will not be seized, even if prima facie, it does not seem to be matching with the income record of the assesse.

(e) Officer conducting search has discretion not to seize even higher quantity of gold jewellery based on factors including family customs and traditions.

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