Monday, April 24, 2017

FAQ’s on Striking off the name of the Companies by ROC’s through Section 248 Notices

FAQ’s on Striking off the name of the Companies by ROC’s through Section 248 Notices.

For facilitating members and to make them understand the outcome of interactive meeting with ROC regarding striking out of companies we are here by providing the answers for FAQs.

Dear all the following FAQs were answered by ROC, AP and Telangana regarding 248 notices.

Section 248 of Companies Act 2013  Notice

Section 248 Notice

Q1. What is next course of action In case company which is not doing any business and having received the notice under 248?
A. If the company is not intended to carry on any business, then company need not reply to ROC notice. The company will be automatically striked out. 

Or

 if the company having no objection for striking out it may reply to the notice stating that it has no intention to carry on any business and has no objection for striking out. It I'll expedite striking out process.

Personal Liability of Directors

Q2. What will happen in case company is having assets and liabilities on the date of notice?

A. Once the company is striked out, it loose the concept of perpetual entity and all the assets and liabilities will become personal assets and liabilities of shareholders and directors and they will be personally liable for liabilities in their personal capacity.

Failure to Respond to the Section 248 Notice by the Companies who are continuing its business ?

Q3. What will happen if the company doing business and do not respond to the notice and no file the returns 
Ans. The company will be in default of the provisions of CA 2013 and directors and company will be liable for prosecution and penal actions including vacation and disqualification of directors

Whether the Directors are Disqualified after striking out ?
Section 248 of Companies Act 2013  Notice

Q4. In case company is strikes out as per notice whether directors of such company are liable for prosecution and whether they will be disqualified and vacated in all other companies in which they are directors.

Ans.
No. There is no impact in the position of directors of such companies after striking off. They will not be liable for any prosecution, they will not be disqualified or vacate office of directorships in other companies.


They may also incorporate new company again after striking out. There is no bar or limitation.

Only name of the company which was strikes out will be blocked for next 20 years. 
Dormant Companies

Q5. Whether  companies which are in dormant mode as per master data of MCA as defunct are also treated as dormant companies?

Ans. Under CA 2013 dormant companies means the companies which have specially filing application for making dormant status shall alone be treated as dormant companies. It means the companies though not functioning nor filing returns and whose status in master data merely shows defunct will not be acquire the status of dormant companies and will be liable for prosecutions and penalties if they are not strikes out in the process.

The companies which are in dormant status subsequent to filing of requisite forms under CA2013 need not file any returns except one yearly return as required under act and if received notice for striking out a suitable reply may be given to roc in this regard.

If the Company do not want to be strike out ?

Q6. If the company doing business desires not to be strikes out and require some more time to file pending returns what is the procedure.

Ans. The company may seek permission of ROC by making specific request and to based on genuinity may allow one or two months time for the same.

             If the Company wants to continue its business ?

Q7. In case company is not having assets and liabilities wants to start or continue the business, what is to be done.

Ans. A letter for seeking time for filing pending returns shall be submitted and after filing of returns it shall submit a reply with evidence of filings with roc.

Wants to Convert into to LLP

Q8. In case company which received notices wants to convert into LLP can it do so without filing pending returns?

And. No. The company unless files all pending returns it can't be converted into LLP or any other form


Q9. What is the status of companies which received notices and which  has obtained bank loans or having charges after striking out.
And. The company as soon as striked out will ceased to exist and all bank charges and other liabilities will become personal liabilities of directors and share holders..

Q10. What will be the position of companies under 560 striking out.
Ans. Such companies need not to take any action in case notice is received by them.
As per the request made  the list of default companies already made available by the MCA.

Disclaimer#

These points were raised by participants and the answers were the outcome of interactive meeting.

The ministry may come out with any other clarification for such kind of FAQs in writing.

The readers may use the FAQs for limited purpose and the views in answers may be varied if the Ministry provides any clarifications in writing.


We will not undertake any responsibility on the answers provided above   as there is no written clarifications or answers from MCA.

2 comments:

  1. Thanks for sharing useful information.

    ReplyDelete
  2. Thanks a ton , sir....you answered most of the queries of fellow new professionals

    ReplyDelete