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2016 (2) TMI 1067 - AT - Companies LawCompounding of certain offences - Contravened the mandate of Section 383-A of the Companies Act 1956 as per which the company should have a whole time Secretary - Held that:- From the report submitted by Registrar of the Companies, it appears that the 1st appellant company has ₹ 1,01,42,820/- paid up capital share as per Balance Sheet for the Financial Year ended on 31st March 2015. It has operating revenue of ₹ 549,246,895/- as per Profit and Loss Account of March 31st 2015. The company had not filed any Annual Return for the period from 1st November 2011 to 8th May 2013 - 1st November 2014 to 17th December 2015. The maximum penalty for default in complying with Section 383A was calculated at ₹ 10,89,500/- to be paid by each defaulter. We find that the defaults have been made good and compliance certificate were filed in majority cases after about two years. There is no complaint against the company and there is no default earlier. In the present case, the learned Tribunal referring to provision of Section 383-A observed that the Bench deemed it sufficient to impose a fine of ₹ 2 lacs on each of the defaulting parties. That means less than 1/5th of the maximum penalty, as could have been imposed has been imposed, which is less than ₹ 100/- per day. As we find that no specific grounds have been shown to reduce the amount, no interference is called for against the impugned order. Contravention of Section 166 of Act 1956 - Held that:- As we find that the appellants have only taken plea that the violation occurred due to inadvertence and without intention & not prejudicial to the interest of any member or creditors or others dealing with the company & nor did affect public interest, we are of the view that the Tribunal rightly brought down the penalty which is less than 1/5th of the maximum amount. In this background no interference is called for against the impugned order. Contravened section(s) 220 of the Act, 1956 during the period 1st November, 2011 to 25th February, 2016 - Held that:- In the present case as admittedly, the default in filing the Annual Return is more than two years and continued during the subsequent financial years, therefore, we are not inclined to compound the amount to the extent of ₹ 25,000/- each, as ordered by Company Law Board in the other case. It is also noted that non-filing of Annual Returns for any continuous period of three Financial Years is also a disqualification for appointment as Director under Section 164(2)(a) of Companies Act 2013, thus making it a serious offence. However, to be consistent with the orders passed by Tribunal in analogous case, which is approximately 175th of the maximum fine, we modify the impugned order of Tribunal and to compound the offence on payment of ₹ 2 lacs by each of the appellants i.e. the Company and the two Directors, Mr. Sandeep Kapoor and Mr. Atul Prabhakar Kulkarni. That means total six lacs to be paid by them.The amount, as compounded be deposited with the Tribunal within three weeks, after adjusting the amount, if any already deposited by appellants Contravened Section 210 of the Companies Act 1956 - failure to lay down annual accounts and balance sheet for the year ending 31st March 2011, 31st March 2012, 31st March 2013, 31st March 2014 and 31st March 2015 - Held that:- Tribunal failed to notice the minimum fine prescribed under sub-section (7) of Section 129 of Companies Act 2013 which is applicable for the year ending 31st March 2015, also failed to notice that a fine up to ₹ 10,000/- is payable by appellants under Sub Section (5) of Section 210 of Companies Act 1956 for each of the year ending 31st March 2011, 31st March 2012, 31st March 2013 and 31st March 2014. This court is not inclined to decide the aforesaid issue, as there will be enhancement of fine, if the fine for the year ending 31st March 2011, 31st March 2012, 31st March 2013 and 31st March 2014 are taken together with minimum fine of ₹ 50,000/- to be imposed for year ending 31st March, 2015. In this background, we deemed it proper to remit the case back to the National Company Law Tribunal, New Delhi Bench to decide the question of compounding of offence afresh, after taking into consideration the Report submitted by the Registrar of the Companies, the grounds shown by the petitioner and the ratio laid down and discussed above. Tribunal will also take into consideration the punishment prescribed under sub-section (5) of Section 210 of the Companies Act 1956 and sub-section (7) of Section 129 of Companies Act 2013 which are applicable for different year ending.
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