Ministry of Corporate Affairs (MCA) has recently announced Form STK-2 for removal of name/ Strike off of Company. This is is not a alternative to winding up of a Company but yes it is a simple process of strike off name of a company from the register of the Registrar subject to statutory criterion specified under the section 248 of the Companies Act , 2013. This has replaced Section 560 (Form FTE) of erstwhile Companies Act, 1956.
A. Following Companies can not be removed under these provisions:
i. Listed Companies
ii. Companies registered under section 8
iii. Companies having charges which are pending for satisfaction
iv. Companies whose application for Compounding is pending
v. Companies against which any prosecution for an offence is pending in any court
vi. Vanishing Companies
vii. Companies that have been delisted due to non-compliance of listing regulations or listing agreement or any other statutory laws;
viii. Companies where inspection or investigation is ordered and being carried out or actions or such order are yet to be taken up or were complete but prosecutions arising out of such inspection or investigation are pending in the court.
ix. Companies which have accepted public deposits which are either outstanding or the company is in default in repayment of the same;
x. Companies where notices under section 234 of CA 1956 or 206 or 207 of the Act, 2016 have been issued by the Registrar or Inspector and reply thereto is pending or report under section 208 is pending or where any prosecution arising out of such inquiry or scrutiny, if any, is pending with the court.
B. Companies which can file form:
(i.) Any active company; or
(ii.) Dormant company.
C. Removal of company name from the register of companies:
The Registrar of Companies has the following powers to remove name of company from the register of companies, if the Registrar has reasonable cause to believe that:
i. A company has failed to commence its business within one year of its incorporation. OR
ii. A company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period for obtaining the status of a dormant company under section 455.
D. Form STK-2:
The process for removing a company name from the register of companies can also be initiated by the company by filing Form STK-2 (fee Rs. 5,000/-). 6. Attachment – STK-2:
1. Indemnity Bond from Every Director in Form STK-3
2. Statement of Accounts certified by CA comprising assets and liabilities of a company made upto a day, not exceeding 30 days from the date of application.
3. An Affidavit from every Director in Form STK-4
4. Copy of Special Resolution duly signed by each Director
5. Statement regarding pending litigations, if any, involving Company.
Certification- STK-2:
E-form STK-2 shall be signed by a Director. Director should be [3]authorized by the Board for such purpose. In case director don’t have DSC, Physical copy of STK-2 manually signed by the director authorized shall be attached with the form STK-2.
Certification:
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.
Place of application on Website:
The Company will place the copy of application on its website till the disposal of the application. . Rule 7(1).
Undertaking from Director – Discharge of
Liability:
The Registrar, if feel necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company that the sufficient provision has been made for the realization of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company.
Declaration from any Director:
The directors will give following below mentioned declarations:
· The application has been in accordance with the conditions mentioned under sub section (1) and (2) of section 248 and sub section (1) of section 249:
· There is no inspection or investigation ordered and carried out or yet to be carried out or being carried out against the company and where inspection or investigation have been carried out , no prosecution pending in any court arising out of such inspection or investigation;
· The company is neither having any public deposit which are outstanding nor the company is in default in its repayment or interest thereon ;
· The company does not have any outstanding loans, secured or unsecured;
· The company does not have any dues towards income tax .VAT, excise duty, service tax or any other duty, by whatever name called, payable to the central government or state government, statutory authority or local authority;
· All other liabilities of the company have been settled or discharged or extinguished;
· All the requirements of the act and rules made thereunder relating to removing the name of the company from the register of companies and matters incidental or supplemental thereto have been complied with;
· To the best of my knowledge and belief, the information given in this application and its attachment is correct and complete;
· the requisite fee has been paid.
Issue notice of Striking off and dissolution of Companies:
If no objections received then ROC shall issue a notice u/s 248(5) of striking off of Company and publish the same in official gazette in form No. STK-7. The copy of notice shall also be placed on the official website of the MCA.
Other Provisions:
Liability of Directors:
The liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved.
Effect of Strike off:
It shall on and from the date mentioned in the notice under sub-section (5) of section 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.
Appeal to Tribunal:
Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal (NCLT) within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies.
Conclusion:
This form does not make mandatory for company to have statutory annual filings done for strike off of companies. But since the forms is Non-STP (i.e. through approval route) the ROC concerned would definitely ask and peruse all the filings and compliances made by the company.
CS Ravi Bhushan Kumar
9990339200
cs.ravibhushan@gmail.com
