Updated Financial Statements and Annual Return filing made mandatory before recording any Event Based Information

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Compliance of Provisions of theCompanies Act, 1956 and Rules Made There Under

In order to ensure corporate governance and proper compliances of provisions ofCompanies Act, 1956, the Ministry ofCorporate Affairs has decided vide General Circular No33/2011, Dated 01.06.2011 that from 3^rd July, 2011 all the Companies will have to file their updated Balance Sheet and Profit & Loss Accounts and Annual Returnwith the Registrar of Companies before recording any event based information / changes made and no request, whether oral, in writing or through e-forms will be accepted in this regard.

This decision is a follow up of the instances of filing only the event based information with the Registrar of Companies by some companies without filing their up to date Balance Sheet and Profit & Loss Accounts and Annual Return.

It has also been decided that No e-filing shall be accepted by the Registrar of Companies from Directors of these defaulting companies for any other company also.

Company Secretaries and Auditors of these companies will also not be allowed to sign and certify the filing with MCA-21 system, in respect of these defaulting Companies, till the defect is rectified.

Members of ICAI, ICSI and ICWAI must not issue any certificates to such defaulting companies other than above mentioned e-forms. And, action will be taken against the defaulting companies and their Directors/ officers in default in co-ordination with RBI and SEBI.

Though, this order will not apply to such companies where the Balance Sheet and Annual Return could not be filed due to order of court / company law board or any other competent authority and concerned ROC has marked this company as having management dispute.

However, in the interest of other stakeholders following event based information / changes will continue to be accepted by the Registrar of Companies from such defaulting companies: -

Forms	Subject
Form 32	Particulars of appointment of managing director, directors, manager and secretary and the changes among them or consent of candidate to act as a managing director or director or manager or secretary of a company and / or undertaking to take and pay for qualification shares. [Pursuant to sections 303(2) or 266(1) (a) and 266 (1) (b) (iii) of the Companies Act, 1956]
Form 20 B	Form for filing annual return by a company having a share capital with the Registrar.[Pursuant to Section 159 of theCompanies Act, 1956]
Form 21A	Particulars of annual return for the company not having share capital. [Pursuant to Section 160 of the Companies Act. 1956]
Form DIN-3	Intimation of Director Identification Number by the company to the Registrar.
Form 21	Notice of the court or the company law board order. [Pursuant to section 17(1), 17A, 79, 81(2), 81(4), 94A (2, 102(1), 107(3), 115(5), 141, 155, 167, 186, 391(2), 394(1), 396, 397, 398, 445, 466, 481, 559 and 621A of the Companies Act, 1956]
Form 23AC & 23 ACA	Form for filing balance sheet and Profit & Loss account and other documents with the Registrar. [Pursuant to section 220 of the Companies Act, 1956]
Form 1 INV	Forms for deposit of money into IEPF.
Form 23 B	Information by Auditor to Registrar
Form 66	Form for submission of compliance certificate with the Registrar
	Forms related to Cost Audit Branch
	Investor Complaint Form

It may be noted that Section 610 of the Companies Act, 1956 confers a right to any person to inspect any document kept with the Registrar of Companies under the Act. The Balance Sheet and Profit & Loss Accounts and Annual Return of any company are the basic documents which are required to be filed with Registrar of Companies annually as required under section 220 and 159 of the Companies Act, 1956.

MCA makes it mandatory for CAs, CSs, CWAs to digitally sign DIN applications

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THE Ministry of Corporate Affairs has videGeneral Circular No32/2011, New Delhi Dated 31^5t May, 2011 decided that with effect from 12th June, 2011, all DIN-1 & DIN-4applications have to be digitally signed by the practicing Chartered Accountants, Company Secretaries or Cost Accountants who shall also verify the particulars of the applicant given in the applications. All these applications will be approved online.

At present, the PAN of the applicant is not amandatory field in DIN eform-1. In order to examine DIN e-forms through the system and to avoid duplicate DIN, it has been decided that all existing DIN holders who have not furnished their PAN earlier at the time of obtaining DIN, are required to furnish their PAN by filing DIN-4 e-form by 30th September, 2011 failing which their DIN will be disabled and they shall also be liable for heavy penalty

It may be noted that the Ministry has already issued instructions on April 7 this year regarding the intention to allot all DIN applications online and to examine the DIN-1 and DIN-4 e-form through the system. Accordingly, following fields in the DIN e-form will be mandatory :

(i) Name of Applicant

(ii) Father’s name of the Applicant

(iii) Date of Birth

(iv) Income Tax Permanent Account Number (PAN) in case of all Indian Nationals.

(v) Passport in case of all Foreign Nationals.

The Companies (Passing of the resolution by Postal Ballot) Rules, 2011

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Notification

New Delhi the Dated- 30th May, 2011

G.S.R. ………….. (E). – In exercise of the powers conferred by section 192A read with clauses (a) and (b) of sub-section (1) of section 642 of the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the following rules, in supercession of Companies (passing of the resolution by postal ballot) Rules, 2001 namely:-

1. Short title and commencement

(1) These rules may be called the Companies (passing of the resolution by postal ballot) Rules, 2011.

(2) They shall come into force on the date of their publication in the official gazette.

2. Definitions:‑

In these rules unless the context otherwise requires -

(a) “Act” means the Companies Act, 1956 (1 of 1956);

(b) “Agency” means agency appointed for providing and supervising electronic platform for voting by electronic platform shall be an agency approved by the Ministry of Corporate Affairs.

(c) “Postal Ballot” includes voting by share holders by postal or electronic mode instead of voting personally by presenting for transacting businesses in a general meeting of the company;

(d) “Requisite majority” with regard to Special Resolution means votes cast in favour of the business is three times more than the votes cast against, with regard to ordinary resolution, votes cast in favour is more than the votes cast against.

(e) “Voting by electronic mode” means a process for recording votes by the members using a computer based machine to display an electronic ballot and to record the vote and also the number of votes polled in favour or against such that the entire voting gets registered and counted in a electronic registry in a centralised server;

(f) Words and expressions used herein but not defined shall, unless the contest otherwise requires, bear the meaning, if any, as assigned to them under the Act and Information Technology Act, 2000.

3. Notice:-

(a) The company may issue notices either,-

(i) under Registered Post Acknowledgement Due; or

(ii) through any other secured mode of posting provided by Department of Post; or

(iii) through electronic mail provided the company has obtained e­mail address of its member for sending the notices through e-mail, after giving an advance opportunity to the member toregister his e­mail address and changes therein from time to time with the concerned depository; and

(b) The notice shall clearly mention that whether the company is providing voting through postal ballot or by electronic mode. If the company is opting for providing voting by electronic mode, then the notice shall clearly indicate the process and manner for voting by electronic mode provided by the agency.

(c) The company shall cause an advertisement to be published in a leading English Newspaper and in one vernacular Newspaper circulating in the State in wIlich the registered office of the company is situated, about having dispatched the ballot papers duly specifying therein, inter alia, the following matters:.”

(i) The date of completion of despatch of notices;

(ii) The date of commencement of voting through postal ballot or by electronic mode;

(iii) The date of end of voting through postal ballot or by electronic mode;

(iv) The notice shall further state that any postal ballot received from member beyond the said date will not be valid.

(v) That members, who have not received postal ballot forms may apply to the Company and obtain a duplicate thereof

4. Applications:-

These Rules shall be applicable to listed companies and in case of resolutions relating to such businesses as are specified under rule 5.

5. List of businesses in which the resolutions shall be passed through Postal Ballot.

(a) Alteration in the Object Clause of Memorandum;

(b) Alteration of Articles of Associations in relation to insertion of provisions defining private company;

(c) Buy-back of own shares by the company under sub-section (1) of section 77A;

(d) Issue of shares with differential voting rights as to voting or dividend or other wise under sub-clause (ii) of clause (a) of section 86;

(e) Change in place of Registered Office out side local limits of any city, town or village as specified in sub-section (2) of section 146;

(f) Sale of whole or substantially the whole of undertaking of a company as specified under sub-clause (a) of sub-section (1) of section 293;

(g) Giving loans or extending guarantee or providing security in excess of the limit prescribed under sub-section (1) of section 372A;

(h) Election of a director under proviso to sub-section (1) of section 252 of the Act;

(i) Variation in the rights attached to a class of shares or debentures or other securities as specified under section 106.

6. Procedure to be followed for conducting business through Postal Ballot:-

(a) The company may make a note below the notice of General Meeting for understanding of members that the transaction(s) at Si. No. requires consent of shareholders through postal ballot;

(b) The board of directors shall appoint one scrutinizer, who is not in employment of the company, may be a retired judge or any person of repute who, in the opinion of the board can conduct the postal ballot voting process in a fair and transparent manner;

(c) The scrutinizer shall submit his report as soon as possible after the last date of receipt of Postal Ballots;

(d) The scrutinizer will be willing to be appointed and he is available at the Registered Office of the company for the purpose of ascertaining the requisite majority;

(e) The scrutinizer shall maintain a register to record the consent or otherwise received, including electronic media, mentioning the particulars of name, address, folio number, number of shares, nominal value of shares, whether the shares have voting, differential voting or non-voting rights and the Scrutinizer shall also maintain record for postal ballot which are received in defaced or mutilated form. The Postal Ballot and all other papers relating to postal ballot will be under the safe custody of the Scrutinizer till the Chairman considers, approves and sign the minutes of the meeting. Thereafter, the Scrutinizer shall return the ballot papers and other related papers/register to the company so as to preserve such ballot papers and other related papers/register safely till the resolution is given effect to;

(f) The consent or otherwise received after thirty days from the completion of dispatch of notice shall be treated as if reply from the member has not been received;

7. Procedure to be followed for conducting business by electronic mode:-

The company shall follow the procedure for voting by electronic mode as recommended by agency.

Clarifications issued by Income Tax Department on Form No. 24Q

PrintPDF 1. Particulars to be filled in Annexures I, II and III:(i) In Annexure I, actual figures for the relevant quarter should be reported.

(ii) In Annexures II & III, estimated/actual figures for the whole financial year should be given. However, Annexures II & III are optional for statement for the 1st, 2nd and 3rd quarters. Statement for the last quarter should have actual figures for the whole financial yearin Annexures II & III.

2. Particulars of employees whose income is below the threshold limit / the income after giving deductions for savings etc. is below the threshold limit:

(i) Particulars of only those employees are to be reported in whose case the estimated income for the whole year is above the threshold limit.

(ii) In case the estimated income for the whole year of an employee, after allowing deduction for various savings like PPF, GPF, NSC etc., comes below the taxable limit, his particulars need not be included in Form No. 24Q. (iii) In case due to some reason, estimated annual income of an employee exceeds theexemption limit during the course of the year, tax should be deducted in that quarter and his particulars be reported from that quarter onwards.

3. Particulars of those employees, who are with the employer for a part of the year:

(i) Where an employee has worked with a deductor for part of the financial year only, the deductor shoulddeduct tax at source from his salary and report the same in the quarterly statement of the respectivequarter(s) up to the date of employment with him. Further, while submitting Form No. 24Q for the lastquarter, the deductor should include particulars of that employee in Annexures II & III irrespective of the fact that the employee was not under his employment on the last day of the year.

(ii) Similarly, where an employee joins employment with deductor during the course of the financial year, his particulars should be reported by the current deductor in Form No. 24Q of the relevant quarter. Further, while submitting Form No. 24Q for the last quarter, the deductor should include particulars of such employee for the actual period of employment under him in Annexures II & III.

4. Deduction under section 80C:

While filling up Form No. 24Q, the columns pertaining to sections 88, 88B, 88C and 88D may be left blank. As regards to deduction under section 80C, the same can be shown in the column 342 pertaining to “Amount deductible under any other provision of Chapter VI-A”.

5. Explanation for lower/no deduction of tax:

Certificate for lower or no deduction of tax from salary is given by the Assessing Officer on the basis of anapplication made by the deductee. In cases where the Assessing Officer has issued such a certificate to a deductee, deductor has to mention whether no tax has been deducted or tax has been deducted at lower rate on the basis of such a certificate in column 326.

MAT credit to be first adjusted and then TDS and prepaid taxes should be set off against the total tax liability and the assessee is not entitled to i

PrintPDF CIT Vs M/s Sami Labs Limited – Karnatka High Court (Dated: February 14, 2011)-Income tax – Section 115JAA, 263, 244A – Whether MAT credit is to be first adjusted and then TDS and pre paid taxed should be set off against the total tax liability – Whether assessee is entitled to interest u/s 244A against the MAT credit. – Revenue’s appeal dismissed.

How to get refund of Excess /Incorrect ROC Fees paid for availing MCA 21 services

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1. What is refund process?

The user is required to make various payments to avail MCA21 services. A numberof instances have been observed where the users make multiple payments or incorrectpayment or excess payment while using these services. In order to allow the stakeholders to claim refund of such payments, refund process has been introduced by MCA.

2. How can I apply to claim refund?

You are required to file the ‘Refund Form’ available on MCA21 portal for claiming refund.

3. Under which circumstances refund of MCA 21 fees is available?

The refund of MCA21 fees is available in the following cases:

a) Multiple Payments – This includes cases where service seeker does multiple filings of eForm 1 or eForm 5 and makes payments more than once (multiple times) for the same service. However, refund shall not be allowed in respect of approved eForms.

b) Incorrect Payments – This includes cases where the service seeker has made payment in respect of an eForm or Stamp duty through an incorrect option under Pay miscellaneous fee facility.

c) Excess Payment – This includes cases where any excess fee has been paid by the service seeker due to some incorrect data entered in the eForm or incorrect data in MCA21 system due to migration of data from legacy system.

4. Can I claim refund for excess/ incorrect payments made for stamp duty payments?

No, for refund of stamp duty, you are required to approach the concerned state/ union territory.

5. My company has been amalgamated. Whether the transferee company can claim the refund?

Yes, In case of amalgamation, filing shall be allowed by the transferee company.

6. For which all payments, refund process is not applicable?

Refund process is not applicable for the following services/ eForms:

• Public Inspection of documents
• Request for Certified Copies
• Payment for transfer deeds
• Stamp duty fee (D series SRN)
• Form 1A – Name withdrawn cases
• IEPF Payment
• STP Forms i.e. Form 23B, 20B, 23AC, 66, 21A, 23ACA, Form 14 – LLP, DIN-3 (even for cases when the same were non STP earlier)
• Form DIN – 1
• Form 1AA
• Form 22
• Form 4
• Form 22B
• Form 25C
• Form 15
• Form 23AA
• Form 36
• Form DDB
• Form 68

7. Do I have to pay any fee for filing the refund eForm?

No there is no fee for filing the refund form.

8. Is there any time limit for filing refund eForm?

Yes, the refund form is to be filed within the stipulated time period. Also, there shall be deduction in the amount to be refunded based on time period within which refund eForm is filed. The following is the time slab for filing refund form and the corresponding deduction in refund amount:

Time within which refund applicationis made	Default value for deduction
0-90 days	2.5%
91-180 days	5%
181- 270 days	7.5%
271-365 days	10%
>365 days	25%

Filing of refund form shall not be allowed after expiry of 1095 days of filing of the original request.
For all earlier cases, (i.e. cases filed before introduction of refund process), the time limit shall be considered from the date on which the refund process is introduced i.e. from 01/05/2011.

9. What are the different modes of payment of refund available under refund process?

Currently, the mode of payment of refund shall be through cheque only. Later, provision for payment of refund through ECS will also be made available.

10. If I choose mode of payment of refund as “Direct deposit into your bank account”, which all Banks are available for the same purpose?

Currently, the facility for “Direct deposit into your bank account” is not available. The same will be made available later.

11. I have filed a refund eForm for refund of multiple payment of Form 1. However the same has been rejected. Whether I can file the refund eForm again in respect of the same SRN?

Yes, filing of another refund form in this case is allowed. However, only one other refund form is allowed to be filed in respect of one transaction i.e. if the refund form in respect of the same request is rejected twice, filing of another refund eform shall not be allowed.

12. Status of my refund eForm is shown as ‘‘Eligible for refund”, however I have not yet received the Cheque for the refund. What shall I do?

Once the refund eForm is found to be ‘‘Eligible for refund”, MCA shall intimate the same to you through email along with the format of G.A.R 33. This GAR 33 is also available at the ‘Track Transaction status’ functionality available on the MCA21 portal. You are required to send signed G.A.R. 33 as a physical copy to Drawing and Disbursement Officer, Ministry of Corporate Affairs as per the details mentioned in the G.A.R. 33.
After receipt of the G.A.R. 33, a refund Cheque shall be prepared and shall be sent to you.