As a part of its drive/ campaign and in continuance of steps towards better corporate governance various measures have been taken by the Government from time to time
which includes introduction of:
- Form DIR 3 KYC (KYC of Directors).
- MSME Form I for specified companies, which shall include details of all outstanding dues to Micro or small enterprises suppliers.
- Form DPT-3 to be filed by all the companies except Government Companies.
- Form Ben 1 to be filed under Significant Beneficial Ownership (Amendment) Rule 2019.
- Form NFRA – 1 of National Financial Reporting Authority Rules, 2018.
Now, the Government has come up with a new e-Form INC 22A (ACTIVE) which will record the address of the registered office along with a photo of the registered office with the latitude and longitude of the place where registered office is situated.
Ministry of Corporate Affairs introduced an ordinance as Companies (Incorporation) Amendments Rules, 2019 which became effective from February 25, 2019.
This form is applicable for every Company registered on or before the 31st December, 2017 shall file the particulars of the Company and registered office in e-form ACTIVE (Active Tagging and Identities and Verifications) on or before June 15, 2019.
Any company which has not filed its due financial statements under section 137 or due annual returns under section 92 or both with the Registrar shall be restricted from filing e-Form INC 22A (ACTIVE), unless such company is under management dispute and the Registrar has recorded the same on the register and the companies which have been struck off or are under process of striking off or under liquidation or amalgamated or dissolved, as recorded in the register, shall not be required to file e-Form INC 22A(ACTIVE).
The Objectives behind introducing e-Form INC 22A (ACTIVE) were:
- To identify and monitor through a single form the companies violating various applicable provisions of the Companies Act, 2013 and Rules made thereunder.
- To enable common public to be aware of KYC status of companies and their directors.
- Verify and collate all the details which Ministry of Corporate Affairs has about the Companies registered with it.
PURPOSE OF THE E-FORM
Purpose of the form is to identify Shell Companies operating in India and make Corporate Governance more strengthen by complying with Rules and Regulations as prescribed by Ministry. The e-form INC 22A (ACTIVE) will record details pertaining to address of the Registered office along with Photos. By such exercise, it will be easy to find bogus address of shell companies. This is an continuous efforts to clean up the registry, which results into strengthen Corporate Governance and create a transparent and compliant corporate system. This can be Red Alert for Shell Companies.
All the companies which got incorporated on or before 31st Dec 2017 which were under ‘Active’ status as on the date of filing were required to submit particulars in eForm INC-22A (ACTIVE) on or before 25th April, 2019. Further, vide notification dated 25th April, 2019, the last date of filing the e-Form INC 22A was extended up to 15th June, 2019.
In case company does not file e-Form INC-22A within the time limit, Filing of e-Form
shall be allowed with a fee of Rs. 10,000.
COMPANIES (INCORPORATION) AMENDMENT RULES, 2019
The Form INC 22 (Active) owes its existence to Rule 25A Companies (Incorporation) Amendment Rules, 2019. Initially, the Rule governed Form INC 22 dealing with verification of register office.
Rule 25A: Active Company Tagging Identities and Verification (ACTIVE)
(1) Every company incorporated on or before the 31st December, 2017 shall file the particulars of the company and its registered office, in e-Form ACTIVE (Active Company Tagging Identities and Verification) on or before 15.06.2019.
Provided that any company which has not filed its due financial statements under section 137 or due annual returns under section 92 or both with the Registrar shall be restricted from filing e-Form-ACTIVE, unless such company is under management dispute and the Registrar has recorded same on the register:
Provided further that companies which have been struck off or are under process of striking off or under liquidation or amalgamated or dissolved as recorded in the register, shall not be required to file e-Form ACTIVE:
Provided also that in case a company does not intimate the said particulars, the Company shall be marked as “ACTIVE-non-compliant” on or after 15th June, 2019 and shall be liable for action under sub-section (9) of section 12 of the Act:
Provided also that no request for recording the following event based information or changes shall be accepted by the Registrar from such companies marked as “ACTIVE-non-compliant”, unless “e-Form ACTIVE” is filed –
i. SH-07 (Change in Authorized Capital);
ii. PAS-03 (Change in Paid-up Capital);
iii. DIR-12 (Changes in Director except cessation);
iv. INC-22 (Change in Registered Office);
v. INC-28 (Amalgamation, de-merger)
(2) Where a company files “e-Form ACTIVE”, on or after 16th June, 2019, the company shall be marked as “ACTIVE Compliant”, on payment of fee of ten thousand rupees”.
APPLICABILITY AND NON– APPLICABILITY
All companies incorporated on or before 31st of December, 2017 shall file the particulars of the company and the address validation of the registered office in e-Form INC – 22A (ACTIVE) on or before the 15th of June, 2019 with the Registrar.
However, there are certain companies that are exempted from filing this form:
i) Companies incorporated after 01.01.2018.
ii) Companies struck off from the Register.
iii) Companies under the process of strike off.
iv) Companies under amalgamation.
v) Companies under liquidation.
vi) Companies that are dissolved.
PRE-CONDITIONS FOR FILING E-FORM
There are certain prerequisites for filing the following form such as:
- There shall be a minimum number of directors in the Company i.e the Condition of minimum 2 directors in case of Private Companies and 3 directors in case of Public Companies shall not be breached.
- In case, the Company has more than the maximum number of directors i.e 15 directors; then the Company shall attach the SRN of MGT-14 form where the resolution has been passed in the Shareholders Meeting for appointing more than the maximum number of directors.
- SRN of AOC-4 form (filing of financial statements) and MGT-7 form (filing of annual return) of the previous financial year i.e 2017-18.
- Company with Paid-up Capital of more than 10 crores shall have Key Managerial Personnel under section 203 of Companies Act, 2013.
- Company with Paid-up Capital of more than 5 crores shall have a Whole Time
Company Secretary. - In case a Company having a director whose status is Disqualified u/s 164(2) of
Companies Act, 2013, then such Company cannot file the said form.
CONTENTS OF FORM INC 22A (ACTIVE)
Prior to filing INC – 22A, all compliances with regard to the filing of Financial Statements (Section 137) and Annual Returns (Section 92) for the financial year 2017- 18 must be completed by the company.
1. Details of Company
Following details of the Company are required to be filed in the form:
a. CIN (Corporate Identification Number)
The CIN can be obtained from the Certificate of Incorporation issued to the company.
b. Name of the Company
c. Address of registered office of the Company
Address of the registered office which is registered with the MCA is required to be mentioned.
d. Latitude and Longitude
Latitude and Longitude of the Registered Office is required to trace the location of place of Registered Office at ease.
e. Email ID of the Company
Valid Email address of the Company is required to be mentioned so that OTP (One Time Password) can be ascertained.
f. Type of Company – whether the Company is listed or unlisted.
2. Details of Directors
This discloses total number of directors of the company.
All companies except Section 8 and Government Companies can appoint maximum 15 directors. Number of directors in excess of specified limit can be appointed by passing Special Resolution at Shareholders’ Meeting.
In case the maximum number of directors are beyond the limits prescribed under the Companies Act, 2013, then we are required to mention the date of resolution vide which the directors are appointed beyond the prescribed limit and the SRN number of Form MGT – 14 filed with Registrar of the Companies (RoC) through which such directors are appointed beyond the limits specified.
The list of Directors as on the date of filing includes the DIN (Director Identification Number), Name of all the directors and Status of DIN.
Status of DIN of all the directors indicates whether the DIN is in approved status, i.e., whether Form DIR – 3 KYC has been submitted by the concerned director or not. If any of the directors has not filed Form DIR – KYC as on the date of filing, the status of the DIN would be ‘De-activated due to non-filing of DIR – 3 KYC’ or ‘Disqualified under Section 164(2)’.
3. Details of Statutory Auditors
It includes total number of Statutory Auditors appointed by the company along with
the following details:
a. Category of Auditor – Individual or Audit Firm.
b. Income tax permanent account number of auditor or auditor’s firm.
c. Name of the auditor or auditor’s firm.
d. Membership number of auditor or auditor’s firm’s registration number.
e. Period of account for which appointed as statutory auditor.
4. Details of Cost Auditors
Whether the company is required to appoint cost auditors? If yes, following information is required to be filed:
a. Membership number of the cost auditor / member representing the Cost auditor’s firm / LLP.
b. Name of the cost auditor or member representing cost audit firm / LLP.
c. Firms Registration Number (FRN).
d. Name of cost auditor’s firm/LLP.
e. Financial year to be covered by the cost auditor so appointed.
5. Details of Managing Director or Chief Executive Officer or Manager or Whole Time Director
Total number of roles along with DIN / PAN, Name and Designation of the person, if any, appointed as Managing Director or Chief Executive Officer or Manager or Whole Time Director of the company will be entered.
Applicability: Company which is listed company or public company having a paid-up share
capital of ten crore rupees or more is required to appoint managing director or Chief Executive Officer or manager and in their absence, a whole-time director.
6. Details of the Company Secretary
If the company is required to appoint the Company Secretary, following details will
be required –
a. PAN
b. Name
c. Membership Number
Applicability: In case company is listed or public company having a paid-up share capital of
ten crore rupees or more or company having paid up share capital of five crore rupees or more is required to appoint whole time company secretary.
7. Details of Chief Financial officer
In case of appointment of Chief Financial Officer (CFO), if applicable, following details are required –
a. PAN
b. Name
Applicability: In case company is listed company or public company having a paid-up share
capital of ten crore rupees or more is required to appoint CFO.
8. Details of Form AOC 4/ AOC 4 XBRL and MGT 7
a. SRN of Form AOC 4 / AOC 4 XBRL filed for financial year 2017-18
b. SRN of Form MGT 7 filed for financial year 2017-18
9. Attachments
The following attachment is mandatory to be filed in all cases:
Photograph of Registered Office showing external building and inside office
also showing therein at least one director/KMP who has affixed his/her Digital
Signature to this form.
Optional attachments, if any.
10. Declaration
Declaration is given by the Directors or KMP authorised to digitally sign the form which states that –
“I hereby declare that the registered office is situated in the address mentioned above, the
details of directors, KMP, auditors are presently associated with the company are correct.”
11. Verification
Directors or KMP authorized to digitally sign this form also gives confirmation and verification on the particulars of the form and maintenance of documents which states that –
“I, hereby confirm and verify that the particulars given in the Form herein above are true
and also in agreement with the documents maintained by the Company.”
12. Certification
The Form is digitally signed by a Chartered Accountant/ Cost Accountant or a Company Secretary in whole-time practice after confirming that they have been duly engaged for the purpose of certification / verification of the Form.
PROCEDURE
1. Enter a valid CIN
You may find CIN by entering existing registration number or name of the company
in the ‘Find CIN’ service available under the menu of MCA services on the MCA
website.
2. Click the Pre-fill button
Click the Pre-fill button. System will automatically display the name, address of the
registered office, listed flag and the email ID of the company.
In case there is any change in the email ID, enter the new valid email ID.
3. Latitude and Longitude
Please entre latitude and longitude of the registered office address of the Company,
which shall be obtained using maps.
4. Number of directors
System will automatically Pre-fill it along with list of directors as on date of filing. Company is required to ensure that the company has minimum number of directors and DIN of all directors are in approved status.
In case of number of directors are beyond the limits, please specify the Date of Resolution passed and SRN of MGT – 14 filed with RoC for such resolution.
5. Details of Statutory auditor
System will automatically “Pre-fill” it based on the information provided in latest Form ADT-1 filed with the ROC.
6. Details of Cost Auditor
If the appointment of Cost Auditor is applicable, please select “Yes”. It will be also Pre-filled by System based on the information provided in latest Form CRA – 2 filed with RoC. But, if “Yes” is selected and no information is filled regarding appointment of cost auditor, filing of Form INC-22A shall not be allowed. Any company on which Cost audit is mandatory and has appointed Cost Auditor but has not filled Form CRA – 2, will be first required to file Form CRA – 2. After filing Form CRA – 2, filing of Form INC 22A will be allowed.
7. Details of MD/CEO/Manager/WTD
System will automatically prefill all details, if applicable.
8. Details of Company Secretary
System will automatically prefill all details, if applicable.
9. Details of CFO
System will automatically prefill all details, if applicable.
10. Details of forms AOC-4/AOC-4 XBRL and MGT 7
System will automatically prefill all details. Again if the company, in case, has not filed the above mentioned forms for the financial year 2017-18, than first forms AOC4/AOC-4 XBRL and MGT 7 are required to be filed and after that Form INC-22A can be filed.
11. Attachment
Photograph of registered office showing both external building and inside office along with the at least One Director / KMP who would be affixing his/her digital signature in the form.
12. Sign
In case of One Person Company (OPC) – form shall be signed by one director, and
In case of other companies – form shall be signed by one director and one KMP or two directors.
Before that person should registered his/her DSC with MCA,if not registered. Disqualified directors are not allowed to sign the form.
If e-form is digitally signed by Director please enter DIN and in case e-form is digitally
signed by CFO/CEO/Manager please enter PAN. If e-form is digitally signed by Company Secretary in case of Section 8 company please enter membership number /PAN and in case of other companies please enter membership number.
13. Certification
At last e-form shall be certified by Chartered Accountant/Cost Accountant/Company Secretary in whole -time practice with digital signature.
14. Send OTP
This button will be enabled only after successful Pre-scrutiny of the form. Click on this
button to send OTP to your email ID.
Please note that OTP can be successfully sent to the email ID against one form, for a
maximum of 10 times in one day.
OTP shall be valid for a span of 30 minutes.
Enter the OTP received on registered email ID in the form and then click on Verify OTP button which will verify the OPT entered. After verifying the OTP upload the form on MCA website.
CERTIFICATION BY A PRACTICING PROFESSIONAL
The form shall be certified by a Practicing Professional, it can be a Chartered Accountant, Company Secretary or a Cost Accountant (CMA). The said professional has to put its Membership number and Certificate of Practicing Number (COP) to verify the form.
However, there are various declaration which a Practicing Professional has to certify
which are as follows:
i) I have satisfied myself about the identity of the company and its address based on the perusal of the original of the attached document.
ii) All required attachments have been completely attached to this application.
iii) I have gone through the provisions of The Companies Act, 2013 and rules thereunder for the subject matter of this form and matters incidental thereto and I have verified the above particulars [including attachment(s)] from the original records maintained by the Company/applicant which is the subject matter of this form and found them to be true, correct and complete and no information material to this form has been suppressed.
iv) email ID belong to the Company.
v) All the required attachments have been completely and legibly attached to this form.
vi) I have kept a copy of this form and attachments thereto, in my records for further reference.
vii) It is understood that I shall be liable for action under Section 448 of The Companies Act, 2013 for wrong certifications, if any found at any stage.
The implication of certifying false declarations are very serious as the Practicing Professionals shall be held liable under Section 448 of Companies Act, 2013 which says; any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purposes of any of the provisions of this Act or the rules made thereunder, any person makes a statement:
- which is false in any material particulars, knowing it to be false; or
- which omits any material fact, knowing it to be material.
He/she shall be liable under section 447.
Hence, the Practicing Professionals should verify all the details and information provided in the form before certifying the same.
PRACTICAL DIFFICULTIES WHILE FILING E-FORM
This has reference to the meeting of ICSI on 15th March, 2019 and the Webinars conducted on 7th March, 2019 and 26th March, 2019 wherein officials of the Ministry
had addressed the stakeholders regarding introduction of the initiative to Tag Identities and Verify Active Companies through the Companies (Incorporation) Amendment Rules, 2019 in e-Form ACTIVE (Active Company Tagging Identities and Verification) on or before 15.06.2019.
Every attempt is being made for smoothening the path leading towards the success of
this initiative, yet a few issues remain unresolved and the same shall require the assistance of your good office for their elimination.
In this regard, following are the practical difficulties received from the stakeholders seeking for redressal:
Issues and Solution –
1. Compliance by Dormant Companies
For dormant companies, while filing e-form INC-22A, the status of CIN entered is shown as ‘Dormant under section 455’ further stating that the form cannot be filed for this status.
However, under the rule, Dormant Companies have not been included in the list of companies exempted from filing of INC 22A.
Solution:
As per MCA clarification. Dormant Companies need not file Form INC-22a. However, companies who have filed form STK-2 with ROC and their status is showing “under process strike off” such Companies have to file form INC-22A.
2. Details of Statutory Auditor not pre filling
During the period from 1st April, 2014 to 20th October, 2014 many companies have filed
return of Appointment of Auditor in form ADT-1 as an attachment to form GNL-2 because during the initial days of its introduction in 2014, Form ADT-1 was a physical form. Since e-form INC-22A does not allow filling details of Auditor or SRN manually and also there was no interlinking between form GNL-2 and ADT-1 , details of auditor was not pre fill.
Solution:
Based on feedback received from stakeholders who were unable to file e-form ACTIVE as they had filed ADT-1 forms for appointment of auditors for the period from 2014-15 to 2018-19 as an attachment with GNL-2 e-form during the period from 01/04/2014 to 20/10/2014 (due to non-availability of e-form ADT-1 during that period), it has now been decided to permit re-filing of ADT-1 to such companies for the said period (up to 2018-19), with ‘fee relaxation’ (normal fee and additional fee).
Stakeholders, in such cases, may download the latest ADT-1 e-form available on the portal and refile details of the Auditor’s appointment for the said period duly choosing ‘To’ period of appointment date as a date on or before ‘31st March 2019’.
Once ADT-1 is re-filed in such cases and duly approved, the details of Auditors would get pre-filled in the ACTIVE form. However, those stakeholders who had filed details of auditors appointment in e-form GNL-2 even after 20th October 2014 (though e-form ADT-1 had been deployed on 20/10/2014) no fee relaxation would be available for them.
3. Companies in Management Disputes
Solution
First Proviso to Rule 25A reads that any company which has not filed its financial statements under section 137 or annual returns under section 92 or both with the Registrar shall be restricted from filing e-Form ACTIVE, unless such company is under management dispute and the Registrar has recorded the same on the register.
However, for any company to be marked as being under ‘Management dispute’, the same needs to be ordered by NCLT or High Court, which is a time-consuming process and may extend beyond the due date of this form.
4. Details of forms AOC-4/ AOC-4 XBRL and MGT-7 filed for FY 2017-18 not prefill
Issues are being faced by corporates having different financial year, i.e., other than 1st April to 31st March. SRNs of forms for such companies are not being pre-filled automatically. For example, a Company has financial year from January to December, so for such Companies details of financial statement for the year ended March, 2018 is not prefill as the Companies have filled financial statement for the year ended 31st December, 2017.
Solution:
For the Companies having different financial year, such Companies have to take exemption under section 2(41) from CLB or NCLT for the financial year mentioned above. In such case MCA will check the case individually and will give exception and allow such companies to file the form INC-22a. However the Companies who have not taken approval from CLB or NCLT for different financial year, have to comply with standard financial year.
5. Can more than one Company have same registered office?
Solution:
As per MCA clarification, 1 or more Companies can have same registered office.
6. Appointment of KMP
As per Section 203 of the Companies Act, 2013, every company belonging to such class
or classes of companies as may be prescribed shall have the following whole-time key
managerial personnel,
i. Managing Director, or Chief Executive Officer or Manager and in their absence,
ii. a Whole-Time Director;
iii. Company Secretary; and
iv. Chief Financial Officer
If the office of any whole-time key managerial personnel is vacated, the resulting vacancy shall be filled-up by the Board at a meeting of the Board within a period of six months from the date of such vacancy.
Solution:
If Company have to file Form INC-22a, then as one of the pre requisite Company has to appoint KMP in the Company. However as per MCA clarification, applicable companies compulsorily need to have a KMP as on the date of filing irrespective of the time period allowed under the Act.
7. Companies having same registered office can have one Name Board?
Solution:
As per MCA clarification, Companies having same registered office can have one Name Board as long as they are fulfilling provision of Section 12 with respect to registered office of the Company.
8. Resignation of Auditor
Many Companies have filed form ADT-3 for resignation of auditor and also filed ADT-1 for appointment of new Auditor. But same was not captured in the form INC22A, as still details for old Auditor was pre fill in the form.
Solution:
Query can be raised with MCA for this or else Company can file form INC-22A with clarification letter stating that INC-22A is capturing the details of old auditor though
Form ADT-1 has been filed for appointment of new auditor. Company can also attach
Challan copy of form ADT-1 filed for the appointment of new auditor
CONSEQUENCES OF NON-FILING
In case a company does not intimate the said particulars, the Company shall be marked as “ACTIVE-non-compliant” on or after 26th April, 2019 and shall be liable for action under sub-section (9) of section 12 of the Act.
If any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every day during which the default continues but not exceeding one lakh rupees.
If the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may cause a physical verification of the registered office of the company in such manner as may be prescribed and if any default is found to be made in complying with the requirements of subsection (1), he may without prejudice to the provisions of sub-section (8), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.
No request for recording the following event-based information or changes shall be accepted by the Registrar from such companies marked as “ACTIVEnon-compliant”, unless “e-Form ACTIVE” is filed –
1. SH-07 (Change in Authorized Capital);
2. PAS-03 (Change in Paid-up Capital);
3. DIR-12 (Changes in Director except cessation);
4. INC-22 (Change in Registered Office); and
5. INC-28 (Amalgamation, de-merger)
Where a company files “e-Form ACTIVE”, on or after 26th April, 2019, the company shall be marked as “ACTIVE Compliant”, on payment of fee of ten thousand rupees”.
As per notification dated May 16, 2019;
where a company governed by Rule 25A of the Companies (Incorporation) Rules, 2014, fails to file the e-form ACTIVE within the period specified therein, the Director Identification Number (DIN) allotted to its existing directors, shall be marked as “Director of ACTIVE non-compliant company”.
where the DIN of a director has been marked as “Director of ACTIVE noncompliant company”, such director shall take all necessary steps to ensure that all companies governed by rule 25A of the Companies (Incorporation) Rules, 2014, where such director has been so appointed, file e-form ACTIVE. After all the companies referred to in sub-rule
(2) file the e-form ACTIVE, the DIN of such director shall be marked as “Director of ACTIVE compliant company”.
FEES FOR FILING E-FORM INC – 22A
| Particulars | Fee |
| INC – 22A filed on or before 25th of April, 2019 | NIL |
| Companies that get “ACTIVE non-compliant” status | Rs. 10,000 |
CONCLUSION
- Despite the practical difficulties which are hindering the compliance of ACTIVE Form, MCA is trying to identify and monitor the Companies who are violating various applicable provisions of Companies Act, 2013.
- The motive of MCA to introduce ACTIVE Form is to bar scam companies who does not have proper registered office or companies lagging behind with major annual compliances. The intent of the said form is to curb the shell companies which are existing only on papers and to improve the standard of Compliances.
- We as Company Secretaries and Compliance Officers must ensure that the Companies adhere to the said form and raise the standards of Compliance which shall bring transparency in the Governance of Companies. Also, the Companies shall comply with the rules in true letter and spirit.
The following were referred for the preparation of the article…
1. MCA ebook
2. INC-22A_ACTIVE_ Help
3. Webinar on INC-22A
