You are here: Home / Archives for News & Updates

Corporate Updates 19 May 2014

May 19, 2014 Leave a Comment

MCA:

As the services for incorporation of companies were not available on the MCA21 portal to stakeholders from 1st April, 2014 to 28th April, 2014 because of the deployment requirements for new E-forms. With an intention to provide one time opportunity, the validity of reservation of all such names with due date of expiry between 1st April, 2014 to 28th April, 2014 is hereby extended upto 31st May, 2014. They could not avail of the 60 days prescribed period for using the name to complete the corresponding incorporation requirements due to the non-availability of services. All applicants whose cases fall in the above mentioned category may be advised to file relevant E-forms for incorporating companies under the Companies Act, 2013 well before the extended validity period.

RBI: 

RBI has simplified the procedure for External Commercial Borrowings (ECB) from Foreign Equity Holder and delegated the powers relating to Proposals for raising ECB by companies belonging to manufacturing, infrastructure, hotels, hospitals and software sectors from indirect equity holders and group companies, miscellaneous services from direct / indirect equity holders and group companies and Proposals involving change of lender when the ECB is from FEH – direct / indirect equity holders and group Company, to the concerned AD banks to approve the cases under the automatic route. All other terms and conditions stipulated in the relative circulars shall continue to be applicable and remain unchanged.

Filed Under: MCA, News & Updates, RBI

Corporate Updates 16 May 2014

May 17, 2014 Leave a Comment

DVAT: 

DVAT authorities has issued instructions to all Dealers who are selling goods to Embassies / High Commission / International Organisations that the department is going to issue refund online to Embassies / High Commission/International Organisations by matching DVAT-23 with 2B of selling dealers. Therefore, while issuing retail / tax invoices to such organisation, selling dealers are required to mention TIN No(s) on retail/tax invoices issued to them and failing which there will be mismatch and selling dealers shall be liable to pay tax, interest and penalty for mismatch.

RBI: 

While proposing certain measures towards consumer protection such as non-levy of penal charges for non-maintenance of minimum balance in any inoperative accounts it was advised to banks that no charge should be levied for non-operation/activation of Basic Savings Bank Deposit Accounts. It is further advised that henceforth banks are not permitted to levy penal charges for non-maintenance of minimum balances in any inoperative account. To view and download and notification, please Click Here.

Filed Under: DVAT, News & Updates, RBI

Corporate Updates 17 May 2014

May 17, 2014 Leave a Comment

Case Law: Where company’s name was struck off and petitioner sued company in Trial Court and if company’s name was not restored, there would be no effective remedy available for loss caused to petitioner, can name of company be restored to register ??? 

The Hon’ble High Court of Delhi in the matter of M.A. Panjwani V/s. Registrar of Companies & others, directs restoration of company’s name as no other remedy was available to make good losses of petitioner as it appeared to the Court to be “otherwise just”. The word “just” would mean that it is fair and prudent from a commercial point of view to restore the company and that the Court has to examine the concept of “justness” not exclusively from the perspective of a creditor or a member or a debtor, but from the perspective of the society as a whole. The special facts of the present case attract this principle.

This is a petition filed by the petitioner i.e. under Section 560(6) of the Companies Act, 1956 read with Rules 9 & 92 of the Company Court Rules, 1959.

Facts about the Case

  • The petitioner was residing in the United Kingdom. He wanted to settle down in India. With this end in view, he engaged the services of respondent No.3 for searching a suitable house in Delhi. Singhania identified a property known as “Jodhpur Gardens” in village Gadaipur, Tehsil Mehrauli. The petitioner remitted money from England in favour of Respondents 3 in this regard.
  • Respondent 3, who, under some pretext or the other kept deferring the issue and giving evasive answers did not handed over the original Deeds of the property to Petitioner.
  • The petitioner made inquiries in Delhi through persons who informed him that the property was registered in the name of the company and was in the possession and personal use of Respondent 3 since January, 1980.
  • On being so informed, the petitioner filed a suit for declaration, mandatory injunction and damages in the Civil Court. The suit was taken up on 07.05.2012, where the respondent No.2 informed the trial court that the name of the company has been struck off the records by the Registrar of Companies and therefore the suit cannot proceed.
  • The present petition was then filed by the petitioner, under sub-section (6) of Section 560 of the Companies Act. The prayer in the petition was for directions to the Registrar of Companies, who is the respondent No.1, for restoring the name of respondent No.2 i.e. M/s. Alfa Impex Pvt. Ltd. (hereinafter referred to as “Company”) to the register of companies maintained by respondent No.1. on the ground that it is “just” to do so having regard to the facts narrated above.
  • Counsel appearing for the Registrar of Companies took up a preliminary objection to the effect that a petition for restoration of the name of the company can be filed only by the company, member or creditor in terms of Section 560(6) of the Act and that the petitioner does not fall under any categories.
  • As regards the petitioner argued that it was “just” that the company be restored to the register having regard to the events narrated earlier, counsel for the Registrar of Companies submitted that the word “just” appearing in sub-section (6) of Section 560 has to be given a limited or restricted meaning having regard to the context and construed ejusdem generis with the requirement that the company should be carrying on business and should be in operation, and the said word cannot be given any broader meaning.

Judgement

High Court passed decision under sub-section (6) of Section 560 of the Companies Act, 1956 :

  • The court said that the power to order restoration of the company’s name to the register of companies on the application made by the company itself or its member or creditor. Such an application can be made at any time before the expiry of 20 years from the publication of the notice for striking off the name published in the official gazette.
  • The court enumerated the two circumstances in which the company court can exercise the power. The first is when it is satisfied that the company was, at the time of the striking off of its name from the register, carrying on business or was in operation and second is when it appears to the company court that it is “otherwise just” that the name of the company be restored to the register.
  • Court found from the proceeding of the trial that the petitioner was neither a member nor a creditor of the company. Even if the petitioner cannot be considered as a “member” of the company, he was certainly a “creditor” who can file the petition quite apart from the above position, the sub-section recognises that if the Court is of opinion that it is “otherwise just” that the company be restored to the register, restoration can be ordered.
  • It was submitted on behalf of the Registrar of Companies that in striking off the name of the company, the procedure prescribed in Section 560 of the Act was followed. That may be so. Sub-section (6) of Section 560 gives power to the company court to order restoration of the name of the company if it finds that such a course was “just”. The fact that the ROC did follow the due procedure prescribed by law while striking off the name cannot, therefore, be an answer to a petition filed on the ground that it would be “just” to restore the name of the company.
  • On the facts of this case there is every reason to hold that it would be “just” to restore the name of the company to the register of companies. The Registrar of Companies was directed to do so.
  • The company petition is allowed.
Filed Under: Case law, Company Law, News & Updates

Corporate Updates 15 May 2014

May 15, 2014 Leave a Comment

MCA: 

Version of Forms INC-1, INC-2, INC-7, INC-21, INC-28, CHG-1, CHG-4, DIR-6, DIR-11, FC-1, FC – 2, MSC – 1, MSC – 3 SH-11, MR-1 & MR-2 has been updated on 13-14th May,2014. Please ensure that you have downloaded the latest version and uploading the new version of the forms only.

Further after the Judgment of Bombay High Court, MCA has uploaded the e-version of the Official Gazette publication of some of the rules as notified in the month of March, 2014. To view and download and rules, please Click Here.

RBI: 

RBI has further examined the issue relating to repayment of domestic loans through ECBs it has been decided that eligible Indian companies will not be permitted to raise ECB from overseas branches / subsidiaries of Indian banks for the purpose of refinance / repayment of the Rupee loans raised from the domestic banking system in respect of the Scheme of take-out financing, Repayment of existing Rupee loans for companies in infrastructure sector, Spectrum allocation, Repayment of Rupee loans. The changes to the ECB policy will come into force with immediate effect. All other aspects of the ECB policy shall remain unchanged. To view and download and rules, please Click Here.

Filed Under: MCA, News & Updates, RBI

Corporate Updates 14 May 2014

May 14, 2014 Leave a Comment

Registration of Marriages: 

The Hon’ble Supreme Court in the case of Smt. Seema Vs. Ashwani Kumar directed for compulsory registration of marriages solemnized in the respective state / union territories. Accordingly Delhi Government has issued directors an Order called The Delhi (Compulsory Registration of Marriage) Order, 2014 and shall extend to all marriages that solemnized in Delhi irrespective of caste, creed & religion. The parties to marriage shall apply jointly in the prescribed form for registration of their marriage with in a period of 60 days of their marriage and delay upto next 60 days can be condone by the Marriage officer. Penalty provisions also provided for non registration of marriage with in the prescribed time period.

DVAT: 

The Commissioner of VAT has delegated his powers specified in Clause 3 of Section 68 of DVAT Rules, 2004 relating to an assessment made under the Act including as assessment under Section 33 of the Act to all officers appointed under sub Section (2) of Section 66 of the Act not below the rank of VATO subject to their territorial jurisdiction. To view and download the circular, please Click Here.

Filed Under: Marriage, News & Updates, Registration Matters, VAT

Corporate Updates 13 May 2014

May 13, 2014 Leave a Comment

MCA: 

Important observation made by Hon’ble Bombay High Court in the matter of Godrej Industries Limited on the “effectiveness” of rules prescribed by MCA under Companies Act, 2013. As many MCA rules are not available, hence in the opinion of the court they are not binding so far or at least from 1st April 2014 and till such time as these rules are gazette, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazette can be said to be in force.”

Below reproduced is Para no. 23 of the said Judgement for ready reference for all :

“23. A final word about the manner in which these rules and sections are purportedly being brought into force. The website of the Ministry of Corporate Affairs has, on its front page, a link to a single scanned PDF file entitled “COMPANIES ACT 2013 – STATEMENT OF NOTIFICATION OF RULES”. Some 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazetted; at least I have not been able to find any gazette. I do not see how any such rules can be made effective on this basis where a ministry simply puts up some scanned document under the signature of one of its officers but sans any publication in the official gazette. That publication is not an idle formality. It has a well-established legal purpose. That purpose is not and cannot be achieved in this ad-hoc manner. Therefore, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force.”

RBI: 

RBI via Notification dated 12-05-2014 added to the previous circular dated February 22, 1985, in terms Opening of Bank Accounts in the Names of Minors. RBI added and advised bank to allow minors’ accounts (fixed and savings deposit accounts) with mothers as guardians to be opened, subject to safeguards in allowing operations in such accounts by ensuring that the minors’ accounts opened with guardian are not allowed to be overdrawn and that these always remain in credit. Subsequently, Urban Co-operative Banks (UCBs) were advised to extend the facility of allowing opening of minors’ account with mothers as guardian, to Recurring Deposits.

Filed Under: MCA, News & Updates, RBI

Corporate Updates 12 May 2014

May 12, 2014 Leave a Comment

MCA: 

MCA has released the Form-wise details of latest version along with the date of its change for the benefit of all the stakeholders. The same will help the user to verify whether he form they are going to upload is latest or not. The complete list is available at MCA. Please ensure that you have downloaded the latest version for filing.

RBI: 

RBI has simplified the procedure for Re-Schedulement of External Commercial Borrowings (ECB) Policy through which powers have now been delegated to the designated AD Category – I bank to allow one re-schedulement of ECB due to changes in draw-down schedule and / or repayment schedule subject to certain conditions, before the maturity of the ECB. The facility will be available for ECBs raised both under the automatic and approval routes. The modification to the ECB policy will come into force with immediate effect. All other aspects of the ECB policy shall remain unchanged.

Filed Under: MCA, News & Updates, RBI

Corporate Updates 10 May 2014

May 10, 2014 Leave a Comment

Case law: 

Whether a woman employee of the Central Government can ask for uninterrupted 730 days of Child Care Leave (hereinafter referred to as, – ‘the CCL’) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972 (hereinafter referred to as, ‘the Rules’).

The Supreme Court in the matter of Kakali Ghosh Vs. Chief Secretary, Andaman & Nicobar Administration and Ors. in Civil Appeal No. 4506 of 2014 arising out of SLP (C) No. 33244 of 2012 held that a woman employee of the central government can get uninterrupted leave for two years for childcare, which also includes needs like examination and sickness. A bench of justices At SC set aside an order of the Calcutta HC which had held that the central civil services (leave) rules did not permit uninterrupted CCL (childcare leave) for 730 days. It said “On perusal of circulars and Rule 43-C , it is apparent that a woman government employee having minor children can avail CCL for a maximum period of 730 days i.e. during the entire service period for taking care of upto two children”

FACTS OF THE CASE

· The appellant initially applied for CCL for six months commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care of her son who was in 10th standard
· Appellant intimated that she is the only person to look after her minor son and her mother is a heart patient and has not recovered from the shock due to the sudden demise of her father; her father-in-law is almost bed ridden and in such circumstances, she was not in a position to perform her duties effectively.
· While Appellant’s application was pending, she was transferred to Campbell Bay in Nicobar District (Andaman and Nicobar) where she joined on 06th July, 2011. By her subsequent letter dated 14th February, 2012 she requested the competent authority to allow her to avail CCL for two years commencing from 21st May, 2012. However, the authorities allowed only 45 days of CCL by their Office Order No. 254 dated 16th March, 2012.
· Appellant had first approached Central Administrative Tribunal Calcutta for getting leave. The tribunal had ordered dated 30th April, 2012 in her favour but the High Court reversed the order.
· The High court passed the order dated 18th September, 2012 on a petition filed by appellant a woman government employee Kakali Ghosh challenging government’s decision not to grant her leave of 730 days for preparing her son for secondary/senior examinations. It said that CCL can be granted only according to the conditions mentioned in the sub r.(3) of r.43-C and that one of the conditions is that CCL shall not be granted for more than three spells in a calendar year. It means that CCL is not to be granted for a continuous period, but only in spells
· Appellant aggrieved by the judgment moved the apex court.

JUDGEMENT

The Supreme Court passed the order on a petition filed by Appellant Kakali Ghosh challenging the government’s decision not to grant her leave of 730 days for helping her son prepare for examinations

· The apex court set aside the High Court’s order. It said “We set aside the impugned judgment dated September 18, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated April 30, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/ production of this judgment,”
· Also in the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been s\own by the competent authority for disallowing rest of the period of leave.
· Also in the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above.
· For the reasons aforesaid, the supreme Court set aside the impugned judgment dated 18th September, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30th April, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment.
· The appeal is allowed with aforesaid directions. No costs.

Filed Under: Case law, News & Updates

Corporate Updates 09 May 2014

May 9, 2014 Leave a Comment

MCA: 

It has been observed by the ROC at the time of examining the submitted INC-7 e-forms that stakeholders are using old format of Memorandum and Article of Association. In this regard stakeholders are requested to follow the format prescribed under Schedule I of the Companies Act, 2013 to avoid re-submission or rejection of the form.

Version of Forms INC-1, INC-7, CHG-1, CHG-4, CHG-6, CHG-9, SH-7, MR-1 has been updated on 08-05-2014. Please ensure that you have downloaded the latest version and uploading the new version of the forms only. Further

RBI:

RBI vide its Circular dated on 6th May 2014, allowed to open and operate savings bank accounts independently, by Minors above the age of 10 years and A savings /fixed / recurring bank deposit account can be opened by a minor of any age through his/her natural or legally appointed guardian. Banks are free to offer additional banking facilities like internet banking, ATM/debit card, cheque book facility etc., subject to the safeguards that minor accounts are not allowed to be overdrawn and that these always remain in credit.

Filed Under: MCA, News & Updates, RBI

Corporate Updates 08 May 2014

May 8, 2014 Leave a Comment

MCA:

1. MCA has issued Circular to invite attention towards the requirement of authentication of documents and has instructed Registrar of Companies / Regional Director to initiate quick inquiry against the PROFESSIONALS who has certified the form and signatory thereof including an officer in default who appears prima facie responsible for submitting false or misleading or incorrect information pursuant to requirement of above said Rules by giving 15 days notice to concerned professional & officer in default. All such cases will also be referred to the concerned Institute for conducting disciplinary proceedings against the member as well as debar the concerned professional from filing any document on the MCA portal in future.

2. Version of Forms INC-22, SH-7, MR-1, PAS-3, INC-7, DIR-12 has been updated on 6th May 2014 and Version of INC-1, CHG-1, GNL-1, INC-28, GNL-2, MSC-4, DIR-3, DIR-6, URC-1, DIR-12 has been updated on 07-05-2014. Please ensure that you have downloaded the latest version and uploading the new version of the forms only. Further in case there is any issue faced by stakeholders in filling up or filing any of e-forms, they are requested to raise ticket with MCA helpdesk by using link www.mca.gov.in/MinistryV2/complaints.html.

Filed Under: MCA, News & Updates