PROCESS OF CONDONATION OF DELAY IN CREATION/MODIFICAITON/SATISFACTION
OF CHARGE
Article Written by : CS Divesh Goyal
CHARGE:
Section 77 states that
Companies are required to register
ALL TYPES OF CHARGES are to be filed, with ROC within 30
days of its creation.
• Within or outside India,
• On its property or assets or any of
its undertakings,
• Whether tangible or otherwise, and
• situated in or outside India
TIME PERIOD FOR CREATION/MODIFICATION OF CHARGE:
·
For
Creation of Charge Form CHG_1/CHG_9 will be filed with fees prescribed under
Act
·
Within 30 days of Creation
of Charge.
Extension of Time: Proviso to section 77(1) of CA, 2013
If Company fails to file
within 30 days?
If Company fails to file CHG_1
within 30 days of creation of charge then Registrar of Companies may allow such
registration to be made within a period of 300 days of such creation on payment
of such additional fees as may be prescribed.
Extension of Time: Proviso 2 to section 77(1) of CA, 2013
If Company fails to file
within 300 days?
If company fails to file
within 300 days then company shall seek 1extension of time in accordance with
section 87 from the Central Government.
TIME PERIOD FOR SATISFACTION OF CHARGE:
A Company shall give
intimation to the Registrar in the prescribed form, of the payment of satisfaction
in full of any charge registered under this chapter within a period of 30 days
from the date of such payment or satisfaction.
If
Company fails to file within 30 days?
If company fails to file within 30
days then company shall seek 2extension of time in accordance with section 87
from the Central Government by filing application in CHG_8.
PROCESS
FOR APPROVAL OF CENTRAL GOVERNMENT
Process for Approval of 3Central
Government (Regional Director) where the instrument creating or modifying a
charge is not filed within a period of 300 days from the date of its creation
or modification and where the satisfaction of the charge is not filed within 30
days from the date on which such payment of satisfaction.
If there is delay in filing
form CHG_1 or CHG_9 and CHG_4 a petition for condonation of delay has to be
filed with concerned Regional Director, Ministry of Corporate Affairs. The due dates
for filing of above forms are discussed above.
STEP –I
Filing of Relevant Form
(CHG_1/9/4)
The Company will file form
CHG_1/9/4 with additional fees for delay in filing of form.
However, a remark will appear
in the challan that a delay of filing is of so many days and condonation of
delay is required.
STEP –II
Holding of Board meeting and Passing of Resolution
a) Company will call a Board
Meeting as per Secretarial Standard_1 and pass a Board Resolution to
authorization to any director of the Company to file petition along with relevant
documents with Regional Director.
b) Authorizing the engaging of
a company secretary / chartered accountant / cost accountant in practice or
some other professional and to authorizing a director/s and/or secretary to sign a petition, application, affidavit, etc., which
is to be presented to the Regional Director?
STEP –III
Preparation of petition:
Petition will be prepare in form for filling petitions to the
Central Government (Regional Director) – RD_2. Following are the points to be
covered under petition:
Detail of Petition
·
Particular of petitioner
·
Particular of respondent
·
Jurisdiction of Regional Director
·
Limitation
·
Facts of the Case
·
Matter not previously filed or
pending with any other court
·
Relief(s) Sought
·
Interim order if any prayed for.
STEP –IV
Documents to be enclosed with Petition:
·
Form CHG_1/4/9
·
Copy of Challan of the above form
·
Affidavit verifying the petition
·
Certified true copy of Memorandum of Association & Article of Association.
·
CTC of
Balance-Sheet along with all annexure as on 31.03.2014.
·
True copy of Board Resolution Dated
07 /05/2015 for authorization of Director/Professional.
·
Memorandum of Appearance to
represent the company before RD (Authorize PCS/PCA/Advocate or Directors) [Form
-2]
STEP –V
Process of filing of
Petition:
These petitions with the relevant annexure should be file with
ROC in e-form CHG_8. But at present CHG_8 is physical forms so the same should
be file with ROC in form GNL_2 as an attachment.
The following three forms will have to file with ROC
1. Form GNL_2_ Company has to file GNL_2 with ROC
Attachments:_
(i) Form CHG_8
(ii) RD Petition + Affidavit +Memorandum of appearance (all
together in one document)
(iii) CHG_4/1/9 with Payment challan (which is filed earlier)
2. Form RD _2– once the GNL_2 filed, then the company has to file
RD_2 form with MCA.
Attachments:
(i)
Form CHG_8
(ii)
RD Petition + Affidavit
+Memorandum of appearance (all together in one document)
(iii)
CHG_4/1/9 with Payment challan
(which is filed earlier)
(iv)
GNL2+Payment challan.
STEP –VI
Hearing before Regional
Director:
After filing of above mentioned form Regional Director will call
for hearing in the matter. In the hearing regional director will levy
additional fees for Condonation of delay. Company will pay as directed by RD in
miscellaneous payment with reference of Form CHG_1/4/9 SRN number.
STEP –VII
_ Filing of copy of order with Regional Director:
Once the RD form approved or order released by the Regional
Director, then the
Company has to file such RD order in INC_28 form within 30 days.
Flow chart of the procedure under Condonation of delay:
Company will file CHG-1/4/9
relevant form with additional fees.
↓
Calling of Board Meeting
for passing of following resolutions.
↓
Board Resolution for filing
petition for Condonation of Delay and authorizing Practicing professional /
Director to file the petition
↓
Petition shall be prepared
explaining reason for delay along with affidavit verifying petition by the
director, MOA, AOA, Form CHG-1 or 4, Challan paid for Form CHG-1 and Memorandum
of Appearance
↓
File Form GNL-2 with
petition and all other attachment
↓
File Form RD-2 with
petition and all other attachments
↓
Hearing in the office of
Regional Director.
↓
Order will be issued by
Regional Director mentioning prescribed fees for delay
↓
After paying the fees as
directed by RD in miscellaneous payment with reference of Form CHG-1 or 4 SRN
number, File Form INC-28 within 30 days of passing order by paying requisite
fees
↓
While filing INC-28, MCA
will show a remark to file the original order with ROC.
FEES PAYABLE
As per 2013 Act, applicable fees on CHG-1/4/9 correspond to the
nominal share capital of the Company in the below manner:
NOMINAL SHARE CAPITAL
|
NORMAL FEE PAYABLE
|
Less than 1,00,000
|
Rs.200/-
|
1,00,000 to 4,99,999
|
Rs.300/-
|
5,00,000 to 24,99,999
|
Rs.400/-
|
25,00,000 to 99,99,999:::
|
Rs.500/-
|
1,00,00,000 or more
|
Rs.600/-
|
ADDITIONAL FEES
Period of Delays
|
Fee applicable
|
Up to 30 days
|
Normal Fees
|
More than 30 days and up to 60 days
|
2times of normal fees
|
More than 60 days and up to 90 days
|
6 times of normal fees
|
More than 90 days and up to 180 days
|
10times of normal fees
|
More than 180 days
|
12 times of normal fees
|
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