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January 27, 2012

Borrower could not file appeal at his sweet will

In one of the Sarfaesi appeal filed against our Bank, the Ld. Debt Recovery Tribunal, Chennai was pleased to dismiss the application to condone delay of 255 days in filing Sarfaesi Appeal with cost of Rs 5,000.00 payable to our Bank.
 
The Ld. Tribunal observed that the very fact that the appellant has not given any reasons for the inordinate delay of 255 days compelled the Tribunal to draw an adverse inference to the effect that the present Sarfaesi appeal has been filed to frustrate and stall the recovery proceedings initiated by the Authorised Officer of the Bank to recover the legitimate dues of the Bank.
 
The Ld.Tribunal further observed that if applications of this nature are entertained and allowed and the inordinate delay of 255 days in filing the Sarfaesi appeal without offering any explanation and just cause for the inordinate delay is condoned, the very purpose for which the Sarfaesi Act has been enacted for the speedy recovery of legitimate dues of the Bank without intervention of the Courts and Tribunal would get defeated.   

January 26, 2012

VAT on Freight


Treatment of freight under various acts and states has been summarized as follows:- 

If freight has been charged within the sales price, VAT would be charged on total sales price under any law.
If Freight has been charged separately in the bill:-
Act
Treatment
Under CST (See section 2(h))
Not to be included in sales price for purpose of charging CST.
Under Delhi VAT Act ( See section 2(1)(vd)
Not to be included in sales price for purpose of charging VAT.
Under Punjab Vat Act as applicable to Chandigarh (See section 2(zg))
TO BE INCLUDED IN SALES PRICE FOR PURPOSE OF CHARGING VAT .

January 25, 2012

My Blog Watch

Summary of Forms to be filled in ROC



Note : The following abbreviations have been used
  1. AGM means Annual General Meeting 
  2. CG means Central Government
  3. CLB means Company Law Board
  4. GM means General Meeting
  5. MA means Memorandum of Association
  6. MAA means Memorandum & Articles of Association
  7. RD means Regional Director
  8. ROC means Registrar of Companies
* Applications would be expeditiously recorded if the same are certified by a C.A. or a Cost Accountant or a C.S.
INCORPORATION              Sections to   Form to        Time period       Description
                                                  be read       be filled
•  
Availability of Name
20
1A
Filing fees Rs. 500. Valid for 3 months. For renewal another Form 1-A to be filed with filing fees of Rs. 500.
• 
Registration
  



—  
Private Limited Company
12, 33, 146, 303
1, 18, 32
Form No. 1 on stamp paper of Rs. 10. 2 copies of MAA and proposed agreement with the Managing/Wholetime Director/s (if any) are to be filed.
— 
Public Limited Company
12, 33, 146, 266, 303
1, 18, 32, 29
In addition to Form No. 1, MAA and the agreement as aforesaid, Form No. 29 for each Director is also required to be filed.
ALTERATION OF MoA
Change of Name
21
1A
Seek availability of New Name from ROC along with Board Resolution.
23
30 days
Thereafter pass a Special Resolution to adopt the new name. Apply to ROC for fresh certificate of incorporation along with changed MAA.
• 
Change of Regd. Office 




— 
In the same city within local limits
146
18
30 days
Pass Board Resolution.
Outside local limits of city, town or village
146
23, 18
30 days
Pass Special Resolution at GM.
In the same state but within the jurisdiction of another ROC
17A
23, 18
30 days
Prior confirmation from Regional Director (application in form 1AD), Pass Special Resolution at GM. File with ROC a certified copy of confirmation of Regional Director along with amended MA.
From one State to another
17
23
30 days
Pass Special Resolution at GM. File Petition to CLB and file copy to ROC.
18, 146
21
3 months
Certified copy of CLB's order along with amended MAA with ROC of both the states.
18
30 days
• 
Alteration of Object clause
17, 18
23, 21
30 days
Pass Special Resolution at GM. File copy to ROC along with amended MAA.
CONVERSION OF
Private to Public
44, 23
23
30 days
Pass Special Resolution at GM within 30 days of Articles of Association file prospectus or statement in lieu of prospectus. Thereafter apply for fresh Certificate of incorporation.
Public to Private
31(1)
23
30 days
Pass Special Resolution at GM.
1B
3 months from special Resolution
File application for approval of ROC and on receipt of from approval order file copy of altered articles within one month to ROC
DEPOSITS
Acceptance of Deposits
58A

Prior to Acceptance
Copy of advertisement (if any) or statement in lieu of advertisement.
Return of Deposits
30th June
Return as on 31st March every year — copy to RBI.
SHARE CAPITAL, DEBENTURES & SECURITIES
• 
Issue – Where Prospectus is issued
60
Prospectus
Before Issue
Including experts, letter of consent and statement that he has not withdrawn his consent, copy of contracts. Share application form to be accompanied with Form 2. Prospectus to be vetted by SEBI.
• 
Where no Prospectus is issued
56(3)
2A
Memorandum containing salient features of prospectus.
70
Statement in lieu of  Prospectus
3 days before 1st Allotment

Allotment
75(1)
2
30 days
Return of allotment.
75(2)
3
30 days
Particulars of contracts if allotment is otherwise than in cash pursuant to contract not in writing.
• 
Payment to under-writers in case of shares or debentures not offered to public and disclosed in a prescribed form
76(iii)
4
Before payment

Increase pursuant to Government Order 
94A, 81(4)
5
30 days
Form duly stamped with CG Order Copy.
Consolidation of share capital, Conversion of shares into stock, etc.   
95
5
30 days
Pass a Resolution altering MAA at GM.
Increase of share capital or of members.
97
5
30 days
Pass a Resolution altering MAA at GM.
Revalidation of Transfer Deed
108
7C
File with ROC with filing fees of Rs. 50 per transfer form (if nominal capital to be trfd. less than Rs. 5,000), otherwise Rs. 100.
Shelf Prospectus
60A
Shelf Prospectus
Before 1st issue
To be filed by a public financial institution, public sector bank or scheduled bank whose main object is financing.
The shelf prospectus is valid for 1 year from the date of opening of 1st issue. Information memorandum to be filed prior to the second and subsequent issues.
BUY-BACK OF SECURITIES
Declaration of Insolvency
77A(6)
4A
30 days
To be adopted by Board of Directors and signed by at least two Directors, of which one should be Managing Director.
Register of Securities bought back
77A(9)
4B
On completion of buy-back
Number of securities bought, consideration paid, dates of cancellation of securities/extinguishing, physical, destroying the same, etc. to be included.
Return for buy-back of Securities
77A(10)
4C
30 days
Return contains detailed information to be submitted to the ROC in relation to securities bought back.
REGISTRATION OF CHARGES
Creation/Modification*
125, 127, 135
8, 13
30 days
Along with certified copies of the instrument creating charge. Form No. 13 in triplicate.
For Debenture Series
128, 129
10 & 13
30 days
Including particulars of commission etc. on Debentures, Form No. 13 in triplicate.
Satisfaction*
138
17 & 13
30 days
Upon payment of debt or satisfaction otherwise, Form No. 13 in triplicate after obtaining signatures of the lender company and the Bank/Financial Institution.
MANAGEMENT & ADMINISTRATION
Officer in default




Appointment
5
1AA
30 days
If any one director or a person other than director along with consent in Form 1AB.
Withdrawal of consent
5
1AC
30 days
Upon receiving notice of withdrawal of consent.
Commencement of Business
149(1)(a)
19
Before commencing or exercising any borrowing powers
If Prospectus has been issued.
149(2)(b)
20
— do —
If statement in lieu of Prospectus has been filed on Rs. 10 Stamp Paper.
Commencement of New Business
149(2A)(b)(ii)
20A
Before commencing
Pass Special Resolution at GM.
23
30 days

Foreign Register of Members
157
Notice of situation
30 days
For opening or change in situation or for discontinuance
Annual Returns for Company with Share Capital
159
Part II of Sch. V
60 days of AGM or AGM due
Full particulars of past and present members once in six years — If shares are listed on Stock Exchange to be signed by full time practising Company Secretary.
Without Share Capital
160
21A
60 days of AGM or AGM due
Along with statement of indebtedness of all registrable charges.
Notice of Trust
187C
III
30 days
Upon receiving Forms I and II — Notice of beneficial holdings.
Special Resolutions, & for the following other resolutions :




a)
Agreed by all members or class of members which otherwise would have to be passed as Special Resoln.
192
23
30 days
To be accompanied by Explanatory Statement if S. 173 is applicable and agreement if any.
b)
Board resolutions relating to appointment or variation of the terms of appointment of a Managing Director.




c)
Giving powers to the Board u/s. 293




d)
Appointment of sole selling agent u/ss. 294 and 294AA




e)
Voluntary winding up




ACCOUNTS AUDIT AND SECRETARIAL COMPLIANCE
Books of Account – Situation other than Registered Office
209
23AA
7 days
Pass a Board Resolution.
Annual Accounts
220
30 days
Certified 3 copies of Balance Sheet, P & L A/c., Directors' Report, Part IV of Sch. VI, Auditors' Report laid at AGM – If NOT adopted, statement of non-adoption and reasons thereof.
219
23AB
30 days
One copy of abridged accounts in case of listed companies which can be issued to members instead of the full accounts
Appointment/Reappointment of Auditor
224
23B
30 days of intimation
To be filed by the auditors — acceptance or rejection to be specified.
Secretarial Compliance Certificate
383A
30 days of AGM
Any Company not required to have a wholetime secretary but having a paid-up capital of Rs. 10 lakhs or more shall file with ROC a compliance certificate from a secretary in wholetime practice.
DIRECTORS
Acceptance of Directorship of Public Co.
264, 266
29
30 days
Consent to act as a Director to be filed along with acceptance for qualification shares, if any.
Appointment of Managing/Wholetime Director/Manager
269
25C
90 days
Appointment as per guidelines in Schedule XIII.
Appointment or change in Director/Secretary
303
32
30 days
To be filed in duplicate.
JOINT STOCK CO.
Registration of Joint Stock Companies
567
37, 39, 40 & 41
Before Registration
Joint Stock Company to be registered under Part IX — registration effective only upon filing documents.
Registration of Non-joint Stock Companies
568
38 & 42
— do —
Non-joint stock companies to be registered under Part IX.
FOREIGN COS.
Establishment of place of Business in India
592
44
30 days
Documents and prescribed particulars to be annexed to the Form.
Alterations of :




a)
Memorandum, Charter or Articles
593
49 & 52
On/before 31st Jan. of the year following the year in which alterations are made for (a) (b) & (c) 30 days for (d) and (e)

b)
Registered or Principal Office



c)
Director/Secretary



d)
Person authorised to accept service of document



e)
Principal place in India



Copy of Account and Business places list
594
52
9 months of F.Y.
3 copies of Balance Sheets and P & L A/c. in English
F. Y. or certified translation in English and 3 copies of all business places in India.
Cease to have place of Business in India
597
52
Forthwith
Charges/Modifications/satisfaction of charges & appointment of receiver
600 & 125
55, 56, 57, 58, 59 & 60
30 days
Annual Return
600
Annual Return
60 days of F.Y.
As per Foreign Companies Rules, 1975.
Books of Account
600 & 209
23AA
7 days
Notice of address of place of maintaining books of account other than the Principal place.
Prospectus
605
Prospectus Copy
Before issue in India
Note: Sections 391 to 560 covering Compromise and Arrangement, Oppression and Management, Receivers and Managers, Winding-up not mentioned as their usage in day-to-day practice is low.