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2019 (2) TMI 1885 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD BENCHCompounding of Offence - default in filing Cost Audit Reports in the prescribed Form I-XBRL with the Central Government under the provisions of Section 233 B of the Companies Act, 1956 read with the Companies (Cost Audit Report) Rules, 2011 for the Financial years 2011-12, 2012-13 and 2013-14 - Section 441 of the Companies Act, 2013 - HELD THAT:- By the date of filing of this application before this Tribunal on 19.11.2018 the Companies (Amendment Ordinance, 2018) came into force i.e. on 2.11.2018 - In view of the amendment to the Section 441 of Companies Act which came into force with effect from 9.2.2018 this Tribunal can compound the offence punishable under various provisions of the Companies Act other than the offences punishable with imprisonment only or punishable imprisonment and with fine. Section 233B (11) provides punishment of fine only to the company which may extend to Five Thousand rupees and provide imprisonment or fine which may extend to Fifty Thousand or with both for every officer of the companies who is in default - Section 441 as amended with effect from 9.2.2018 gives power to this Tribunal to compound the default committed in respect of Section 233 B of the Companies Act i.e. non-filing of Cost Audit Reports by the Applicants within the given time. Section 441 only puts a restriction on the power of the 'Regional Director' and 'the authorised officers of the Central Government' permitting them to compound the offences wherein the maximum amount of fine does not exceed five lakh rupees and is punishable with 'fine only'. No such fetter has been put on powers of the Tribunal, which is the main forum for such compounding of offences, the other forum of 'Regional Director' and 'Officer of the Central Government' being alternative but restricted by extent of quantum of punishment. The Tribunal has the powers to compound all the offences irrespective of any pecuniary limit as evident from a bare perusal of Section 441. Coming to the case of the second applicant namely the Managing Director of the first applicant company punishment provided is imprisonment or fine or both. Where imprisonment is provided Regional Director has no jurisdiction to compound irrespective of fine amount - in respect of second applicant this Tribunal has got jurisdiction to compound the offences. In the case on hand the default is not punishable with imprisonment or with imprisonment and fine. It is only punishable with imprisonment or fine or both. Therefore, even though prosecution is pending without seeking permission from the concerned Court, this Tribunal can compound relying upon the aforesaid two judgments of the Hon'ble NCLT and the amended 441(6) of Companies Act, 2013. Quantum of compounding fee to be imposed - HELD THAT:- The company has appointed a cost accountant and has got prepared the cost accounting report but could not file them in time due to technical reasons and the default has been made good. But the Company is having a turn over around rupees 211 Crores. Hence no need to take lenient view in imposing compounding fee - The punishment provided for the company for default in non-filing of Cost Audit Report under Section 233B (11) is maximum five thousand rupees and the punishment of fine provided for the Managing Director is fifty thousand rupees maximum. Application disposed off.
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