Presentation Transcript

1. COMPANIES ACT,2013

   CA. ArunSaxena Saxena & Saxena Chartered Accountants 811, AnsalBhawan 16, Kasturba Gandhi Marg, New Delhi – 110 001. Mob.: 9810037364 E-mail : arunsaxena@saxenaandsaxena.com

2. INSPECTION, ENQUIRY AND INVESTIGATION

3. Enquiry / Inspection (Section 206/207) Based on scrutiny of Balance Sheet or any information received by him. ROC has power To call for information To inspect the books of accounts and papers Duty of the company and the officers to provide the same. Information from ex-employee / officer of the company. SAXENA & SAXENA
4. Enquiry / Inspection (Section 206/207) Central Government can also direct ROC to make enquiries. Central Government may also direct the inspection of books of accounts and papers of the company. Central Government may direct any statutory audit authority to carry out the inspection of the books of accounts. In case of default company and every officer of the company is punishable with fine upto Rs.1.00 lacand Rs.500/- per day if default continues. SAXENA & SAXENA
5. Enquiry / Inspection (Section 206/207) Inspector or ROC may get the copies of the books of accounts produced before them. Can place marks of identification in such books of accounts. SAXENA & SAXENA
6. Power of the ROC / Inspector All powers as are vested as in Civil Court under CPC namely:- Discovery on production of books of account and other documents. Summoning and enforcing the attendance of the persons and examining them on oath. Inspection of books and registers and other documents of company at any place. SAXENA & SAXENA
7. Penalty for non-compliance of section 207 (Inspection) In case any director contravenes any above said provision he shall be deemed to vacate his office and shall be dis-qualified for holding office in any company. Penalty for disobeying any order of ROC every oficer shall be punishable of imprisonment uptoone year and fine of Rs.25,000 to Rs,1,00,000/-. Report on Inspection The report of the Registrar or inspector may include the recommendation of further investigation. SAXENA & SAXENA
8. Search and Seizure by Inspector In case the registrar or inspector has reasons to believe that books and papers related to the company, KMP’s, Director, Company Secretary in practice are likely to be destroyed, altered, falsified, he may :- Obtain the order from Special Court for seizure of books and papers. Can enter the place or place where such books and papers are kept. seize such books and papers for 180 days. Further take order for period of 180 days. ROC can take copies of all the records seized by him before returning to the company. SAXENA & SAXENA
9. Investigation Central Government SFIO. Tribunal SAXENA & SAXENA
10. Investigation by Central Government On receipt of the report from ROC or inspector On intimation of Special resolution passed by company In public interest. On the direction of the Tribunal Investigation of ownership of company SAXENA & SAXENA
11. Investigation by SFIO (Section 212) Central Government may refer any matter for investigation into the affairs of the company to SFIO where it has opinion on the basis of : Receipt of the report of Registrar or Inspector. Intimation from company regarding special resolution passed with effect in public interest. Request from any Central or State Government Department. In the public interest. Where any case assigned to SFIO no other Tribunal, Central or State Government shall proceed with investigation in that matter. Central / State Government / Income Tax Authorities shall provide required information / record to SFIO. SAXENA & SAXENA
12. Constitution of the Investigation team by SFIO Company and its officer shall provide all the assistance to the investigating team for the investigation. The SFIO has power to arrest officers and such person shall not be released on bail or his own bond unless public prosecutor has given opportunity to oppose the same. Before taking such person into custody SFIO shall intimate him ground for such arrest and SFIO shall produce such person within 24 hours to the Judicial Magistrate or Metropolitan Magistrate as the case may be. SAXENA & SAXENA
13. Investigation by SFIO Special court shall take cognize of offence only if complaint is filed by Director SFIO or any officer of Central Government. SFIO shall file interim and final report. On receipt of the SFIO report Central Government may direct for the prosecution against the company’s officers. SAXENA & SAXENA
14. Investigation by Tribunal Eligibility: Not less than 100 members or 1/10th of total voting power or Not less than 1/5th of total numbers (company not having share capital) Tribunal may order for the investigation in the affair of the company only in following circumstances :- The business is being conducted with intend to defraud. The person connected with incorporation of the company are guilty for fraud or Misfiseance SAXENA & SAXENA
15. Investigation by Tribunal Members of the company have not given all the information with respect to its affairs. Penalties:- If on investigation it is proved that business is conducted to intend the defraud, the person involved in the formation of the company guilty of fraud, the officers shall be punishable u/s 447. SAXENA & SAXENA
16. Power of the Investigator Powers of the investigator to conduct investigation to the affairs of the related companies: Any body corporate which has or has been at any relevant time company’s subsidiary company, holding company or the subsidiary company of the holding company. Any body corporate which is managed by any person as Managing Director or Manager of the company. Or Body corporate whose Board of Directors comprises nominees of the company or Body corporate whose Board of Directors are accustomed of act according to the directions of the company or its directors. SAXENA & SAXENA
17. Power of the Investigator Any person who is at any time the Managing Director or employee of the company. The prior approval of the Central Government is necessary to initiate the investigation of related company. SAXENA & SAXENA
18. Seizure of documents by Investigator Make search of place where books of account / record placed. Seize the documents for not later than the conclusion of the inspection. SAXENA & SAXENA
19. Freezing of assets of the company To the Tribunal has power to pass any order to stay on transfer, removal, disposal or any assets of the company. Punishment in contravention Rs.1.00 lac to Rs.25.00 lacs and officers shall be punishable with the imprisonment which may extend to 3 years and fine Rs.50,000/- to Rs.5.00 lacs. SAXENA & SAXENA

20. REVIVAL ANDREHABILITATION OF SICK COMPANY

21. JURISDICTION Jurisdiction with NCLT instead of BIFAR SAXENA & SAXENA
22. Determination of Sickness (Section 253) Any kind of company can be declared as sick, not only industrial undertaking. Not on the basis of erosion of networth. If company fails to pay 50% or more of outstanding of secured creditors within 30 days from the service of notice of demand. Such creditors can apply to Tribunal. Company can also apply for sickness. SAXENA & SAXENA
23. Determination of Sickness (Section 253) Such creditors or company can apply to Tribunal for stay of any proceeding of the winding up or for execution against any property and assets of the company. Appointment of receiver. No suit for recovery of any money or for the enforcement of any security shall lie or be processed with. SAXENA & SAXENA
24. Determination of Sickness (Section 253) When any application is pending for declaration of sickness Company shall not dispose off any property / asset Company shall not take any action likely to prejudice the interest of the creditors. SAXENA & SAXENA
25. Determination of Sickness (Section 253) Tribunal shall give notice to company for not less than 30 days. The Tribunal shall order on the application within 60 days whether company is sick or not. SAXENA & SAXENA
26. Revival & Rehabilitation (Section 254) Application for revival by company / creditor within 60 days from the date of order of determination of sickness. Reference to tribunal shall abate if secured creditors (3/4th in value) have taken article for reviewing against the company u/s 13(4) of the SERFASI Act. No reference will be made if secured creditors (3/4th in value) have taken action for recovery of debts against the company u/s 13(4) of the SERFASI Act. SAXENA & SAXENA
27. Revival & Rehabilitation (Section 254) If financial assets have been acquired by a scrutinization company under SARFAESI Act, consent of such agency shall be attached with Application. Application shall be supported by: Audited financial statement. Scheme for revival and rehabilitation. Declaration for no scheme SAXENA & SAXENA
28. Appointment of Interim Administrator (Section 256) Tribunal shall fix date of hearing within 7 days from the receipt of application. The date of hearing shall not be later than 90 days from the date of receipt of application On first date of hearing Tribunal may appoint interim Administrator to: To hold meetings of creditors within 45 days from the date of appointment. To consider whether it is possible to revive or rehabilitate the sick company? To submit his report to Tribunal within 60 days from the date of order. In case no scheme is filed by company, Tribunal may direct the Interim Administrator to takeover the management of the company. SAXENA & SAXENA
29. Committee of Creditors (Section 257) Interim Administrator shall appoint a committee of creditors (not more than 7 in number). Representatives of each class of creditors should be represented. Interim Administrator shall decide the procedure to be followed for meetings. Interim Administrator may direct any Promoter, Director, KMPs to attend any meeting and to furnish all the information, as required. SAXENA & SAXENA
30. ORDER OF TRIBUNAL (Section 258) Order of Tribunal on the date of hearing fixed On the basis of report of Interim Administrator, Tribunal shall order for Proceedings for winding up of company be initiated or Shall appoint Company Administrator for the company to prepare scheme of Revival & Rehabilitation. Tribunal may direct the company administrator to take over the assets and management of the company. Administrator may with the approval of Tribunal take services of experts. SAXENA & SAXENA
31. Powers & Duties of Company Administrator (Section 260) To prepare: Inventory of assets / liabilities. Inventory of books and accounts and other records. List of shareholders, secured / unsecured creditors. Valuation Report for shares / assets of the company. Provisional accounts if no upto date audit is done. List of workmen with dues. SAXENA & SAXENA
32. Scheme of Revival & Rehabilitation (Section 261) Company administrator shall prepare scheme of Revival and Rehabilitation considering the scheme filed by company (in existing act operating agency) Scheme shall provide following: Financial restructuring of sick company. Change in management or taking over of Management of sick co. Amalgamation of sick company with any other company or any other company with sick company. Takeover of sick company by solvent company. Sale or lease of part or whole of Assets or business of sick co. Rationalization of Managerial Personnel, supervisor, staff, workmen in accordance with law. Repayment and rescheduling or restructuring of debts and obligation of sick co. to any of its creditors or class of creditors. SAXENA & SAXENA
33. Approval of Scheme (Section 262) The revival and rehabilitation scheme, prepared by company administration shall be approved atleast by: 3/4th of secured creditors 1/4th of unsecured creditors If scheme involves amalgamation of sick company with other company, approval in General Meeting as both the companies. If approved, the scheme shall be submitted to Tribunal within 60 days from the appointment (extendable to 120 days). Tribunal shall send scheme to company, company administrator, other company (in case of amalgamation). SAXENA & SAXENA
34. Approval of Scheme (Section 262) Tribunal may direct to publish draft scheme in newspaper for suggestion / objection within such period as Tribunal may specify. Complete draft scheme shall be kept at registered office. If scheme is not approved Company Administrator shall report to Tribunal within 15 days and Tribunal shall pass the order for winding up. SAXENA & SAXENA
35. Approval of Scheme (Section 262) Tribunal shall pass the order after considering the suggestion, within 60 days from the receipt of suggestions. Copy of sanctioned scheme shall be filed with ROC within 30 days from the date of receipt of copy of order. The sanctioned scheme shall be final and binding on company, employees, creditors, shareholders and guarantors and transferee company ( if any). SAXENA & SAXENA
36. THANK YOU SAXENA & SAXENA