Appointment of the auditor is mandatory in all type of companies & Only CA is eligible to be appointed as Statutory auditors in a company. Important highlights of appointment of...
Once the name of the Company is registered then it cannot be removed from the Register unless it is dissolved by the process of law, either as a result of its winding up or upon its amalgamation with another Striking off Company. However, in case the Company is a Defunct Company, the Companies Act provides a short-cut to the winding up process, namely striking off company the name of the Company of the Register by the ROC. Thus it is an alternative mode of dissolution to the winding-up of a Company.
Different Modes of Striking Off:
- Strike Off by ROCSuo Moto
- Strike Off by way of Application by the Company
Type of Companies which cannot be Strike Off:
- Listed Companies;
- Not-for-profit Companies registered under Section 25 of the Companies Act, 1956 or Section 8 of the Companies Act, 2013;
- Companies having charges which are pending for satisfaction;
- Companies against which any prosecution for an offense is pending in any court;
- Companies whose application for compounding is pending;
- Companies that have been delisted due to non-compliance of listing regulations or listing agreement or any other statutory laws;
- Vanishing companies;
- Companies where inspection or investigation is ordered and being carried out or actions on such order are yet to be taken up or were completed but prosecutions arising out of such investigation or inspection are pending in the Court;
- Companies where notices have been issued by the Registrar or Inspector (under Section 234 of the Companies Act, 1956 (old Act) or section 206 or section 207 of the Companies Act, 2013 (new Act)and reply thereto is pending;
- Companies which have accepted public deposits which are either outstanding or the company is in default in repayment of the same;
Strike off by ROCSuo Moto
ROC may remove the name of a company from the register of companies if:
- A Company has failed to commence its business within 1 year of its incorporation; or
- A Company which is not carrying on any business or operation for a period of 2 immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company.
- ROC shall send a notice to the Company and to all the directors of the Company, stating the intention to remove the name of the Company from the register of the Companies and requesting them to send their representations for further process of Strike Off.
Procedure to be followed by ROC for strike off by its own motion
The ROC has to follow the following procedures for strike off by its own motion:
Serving of Notice
Notice in writing shall be sent by ROC in Form STK – 1 to all the directors of the company at the addresses available on record, by registered post with acknowledgment due or by speed post.
The notice shall contain the reasons on which the name of the company is to be removed and shall seek representations, if any, against the proposed action from the Company and its Directors along with the copies of relevant documents, if any, within a period of 30 days from the date of the notice.
Representation of Company
The ROC shall consider the representation of the Company if it has received the same. If the ROC is not satisfied with the representation made by the company and its directors, it may proceed further for the strike of the name of the company.
Publication of notice
The notice for removal of name shall be in Form STK 5 and the same be –
- Placed on the official website of the MCA on a separate link established on such website in this regard;
- Published in the Official Gazette;
- Published in the English language in a leading English newspaper and at least once in vernacular language in a leading vernacular language newspaper, both having wide circulation in the State where the registered office of the company is situated.
Intimation to regulatory authorities
The ROC shall simultaneously intimate the concerned regulatory authorities regulating the company, viz, the Income-tax authorities, central excise authorities , and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking off the names of such companies and seek objections, if any, to be furnished within 30 days of notice.
Strike off the name and publish notice of dissolution of the company
ROC may, at the expiry of the time mentioned in the notice, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and publish notice thereof in the Official Gazette. The Company shall stand dissolved on the publication of this notice in the Official Gazette.
Sufficient provision has been made for the realization of all amounts due
ROC, before striking off, shall satisfy itself that sufficient provision has been made for the realization of all amounts due to the company and for the payment or discharging of its liabilities.
By way of Application by the Company
The Company can file an application voluntarily with the Registrar of Companies for Striking off the name of the Company. The grounds for voluntarily filing an application by the Company is as under:
- The Company has to pass a special resolution with the consent of seventy-five percent members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner and accordingly, a Company can file an application for Striking off its name with ROC.
Restriction on making application by the Company for strike off
If any time in the previous 3 months the Company has done any of the below-mentioned activities, then the Company shall not make any application for its strike off:
- Has Changed its name;
- Has Shifted its registered office from one State to another;
- Has made a disposal for value of property or rights held by it, immediately before cesser of trade or otherwise carrying on of the business, for the purpose of disposal for gain in the normal course of trading or otherwise carrying on of business;
- Has engaged in any other activity except the one which is necessary or expedient for the purpose of making an application under that section, or deciding whether to do so or concluding the affairs of the company or complying with any statutory requirement;
- Has made an application to the Tribunal for the sanctioning of a Compromise Or Arrangement and the matter has not been finally concluded; or
- The Company is being wound up under Chapter XX by the Tribunal.
A Process to be followed for strike off on application of the Company
The holding of Board Meeting
Board Meeting will be held by the Company for passing a Board resolution for the purpose of Striking off the name of the Company and to authorize any director of the Company to file an application with Registrar of Companies.
Extinguishment of all the Liabilities
After passing of Board resolution if there are any liabilities then the Company will extinguish all the liabilities before the next step.
The holding of General Meeting
The Company will hold the general meeting of shareholders by passing a resolution for striking off the name of the Company with the approval of 75% of members as per paid up share capital of the Company and after passing of Special resolution Company will file E-form MGT-14 within 30 days.
Approval of Concern Authorities
In case if the company is regulated by any other authority, then the approval of such authority shall also be required.
Application to ROC by Company
Application in Form STK- 2 to be filed by the Company (Government filing fees of INR 5000) along with following documents:
- Indemnity Bond duly notarized by every director in Form STK 3;
- An affidavit in Form STK 4 by every director of the company;
- A statement of accounts containing assets and liabilities of the company made up to a day, not more than 30 days before the date of application and certified by a Chartered Accountant;
- CTC of Special Resolution duly signed by each Director
- In the case of a Company regulated by any other authority, approval of such authority shall also be required;
- A statement with respect to any pending litigations, involving the Company.
Certification in E-Form STK-2
E-form STK-2 shall be signed (Affixation of DSC) by a Director. Director should be authorized by the Board for such purpose. The e-form STK-2 shall be certified by Company Secretary in Whole-time Practice or Chartered Accountant or Cost Accountant in whole time practice and the Company will place the copy of the application on its website till the disposal of the application.
Public notice by ROC
After filing an application for strike off by the Company, the ROC shall publish a public notice in Form STK-6 inviting objections to the proposed Strike off, if any.
- The objections are to be sent to the respective ROC within 30 days from the date of publication.
- The notice shall be placed on the website of Ministry of Corporate Affairs, published in the Official Gazette and published in a leading English newspaper and at least in one vernacular newspaper where the registered office of the company is situated.
Intimation to Regulatory Authorities
ROC shall simultaneously intimate the concerned regulatory authorities regulating the company, i.e. the Income-tax authorities, central excise authorities and service-tax authorities having jurisdiction over the company, about the proposed action of removal or striking off the names of such companies and seek objections if any.
Publication of notice of dissolution
- ROC, after having followed and dealt with the above steps, shall strike off the name and dissolve the Company and a Notice of striking off and its dissolution to be published in the Official Gazette in Form STK 7.
- On the publication in the Official Gazette of this notice, the Company shall stand dissolved with effect from the date mentioned therein. The same shall also be placed on the official website of the MCA.
Effect of company notified as dissolved
If a company stands dissolved, it shall on and from the date mentioned in the notice of dissolution, cease to operate as a Company and the Certificate of Incorporation issued to it shall be deemed to have been canceled from such date except for the purpose of realizing the amount due to the company and for the payment or discharge of the liabilities or obligations of the Company.
Liabilities of directors, managers, officers, and members to be continue
The liability, if any, of every director, manager or another officer who was exercising any power of management, and of every member of the Company dissolved, shall continue and may be enforced as if the Company had not been dissolved.