1. PENAL PROVISIONS ON NON-COMPLIANCES UNDER COMPANIES ACT, 2013- FORM MGT-7, AOC-4, AOC-4 XBRL
Prepared by:
Ms. MANISHA CHAUDHARY Mr. HIMANSHU VIJ
Advocate Advocate

2. Section 92-Annual Return
92. (1) Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding—
(a) its registered office, principal business activities, particulars of its holding, subsidiary and associate companies;
(b) its shares, debentures and other securities and shareholding pattern;
(c) its indebtedness;
(d) its members and debenture-holders along with changes therein since the close of the previous financial year; Investigation of beneficial ownership of shares in certain cases. Power to close register of members or debentureholders or other security holders.

3. Section 92-Annual Return
(e) its promoters, directors, key managerial personnel along with changes therein since the close of the previous financial year;
(f) meetings of members or a class thereof, Board and its various committees along with attendance details;
(g) remuneration of directors and key managerial personnel;
(h) penalty or punishment imposed on the company, its directors or officers and details of compounding of offences and appeals made against such penalty or punishment;
(i) matters relating to certification of compliances, disclosures as may be prescribed;

4. Section 92-Annual Return
(j) details, as may be prescribed, in respect of shares held by or on behalf of the Foreign Institutional Investors indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them; and
(k) such other matters as may be prescribed,
and signed by a director and the company secretary, or where there is no company secretary, by a company secretary in practice: Provided that in relation to One Person Company and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.

5. Section 92-Annual Return
(2) The annual return, filed by a listed company or, by a company having such paid-up capital and turnover as may be prescribed, shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act.
(3) An extract of the annual return in such form as may be prescribed shall form part of the Board’s report.
(4) Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed, within the time as specified, under section 403.

6. Section 92-Annual Return
(5) If a company fails to file its annual return under sub-section (4), before the expiry of the period specified under section 403 with additional fee, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.
(6) If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made thereunder, he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.

7. ANNUAL RETURN (Form MGT-7)
Every Company has to mandatorily prepare the Annual Return in the prescribed Form MGT-7 (E-Form) [Rule 11 of the Companies (Management and Administration) Rules, containing the particulars as specified under Section 92(1) of the Companies Act, (herein after referred to as the ‘Act’).
Form MGT-7 is to be filed electronically and accordingly has to be digitally signed by a Director and the Company Secretary, and in case there is no Company Secretary by the Company Secretary in Practice. In case of a One Person Company or Small Company, the annual return shall be signed by the Company Secretary or where there is no Company Secretary, by the Director of the Company.

8. ANNUAL RETURN (Form MGT-7)
The Listed Companies and Companies having paid-up share capital of Rs. 10 crores or more or turnover of Rs. 50 crores or more shall get their Annual Return certified from Company Secretary in Practice.
Company Secretary in Practice shall give the certification in Form MGT-8 which will be attached in Form MGT-7.

9. ANNUAL RETURN (Form MGT-7)
The Annual Return is to be filed within 60 days of Annual General Meeting or where no Annual General Meeting is held, within 60 days on which Annual General Meeting should have been held.
An additional Period of 270 days is also provided under Section 403 of the Act for the filing of Annual Return after the above mentioned period of 60 days on payment of additional fees provided under the Act.
A copy of the MGT – 7 is attached herein below for your convenience:

10. NON-COMPLIANCE - ANNUAL RETURN (Form MGT-7)
If the Company fails to file its Annual Return after the expiry of additional period as specified under Section 403 of the Act, the Company shall be punishable with fine which shall not be less than Rupees 50,000 but which may extend upto Rupees 5,00,000.
Further the officer of the Company who is in default shall be punishable with imprisonment for a term which may extend to 6 months or with fine which shall not be less than Rupees. 50,000 but which may extend to Rupees 5,00,000 or with both.

11. NON-COMPLIANCE - ANNUAL RETURN (Form MGT-7)
Further if a Company Secretary in Practice has certified the annual return otherwise than in conformity with the requirements of Section 92 or Companies (Management and Administration) Rules, 2014, he shall be punishable with fine which shall not be less than Rs. 50,000 but which may extend to Rs. 5,00,000.
Further pursuant to Section 448 of the Act, if in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purpose of any of the provisions of the Act or rules made there under, any person making a statement which is false in material particulars knowing it to be false or omits any material fact, knowing it to be material, shall be punishable under section 447 of the Act for playing fraud. .

12. NON-COMPLIANCE - ANNUAL RETURN (Form MGT-7)
As per Section 447 of the Act, such person shall be punishable with imprisonment for a term which shall not less than 6 months but which may extend upto 10 years and shall also be liable to fine which shall not be less than the amount involved in the fraud but which may extend to 3 times the amount involved in the fraud. Further where the fraud in question involves public interest, the term of imprisonment shall not be less than 3 years.

13. Section 137-Copy of Financial Statement to be filed with Registrar
137. (1) A copy of the financial statements, including consolidated financial statement, if any, along with all the documents which are required to be or attached to such financial statements under this Act, duly adopted at the annual general meeting of the company, shall be filed with the Registrar within thirty days of the date of annual general meeting in such manner, with such fees or additional fees as may be prescribed within the time specified under section 403: Provided that where the financial statements under sub-section (1) are not adopted at annual general meeting or adjourned annual general meeting, such unadopted financial statements along with the required documents under sub-section (1) shall be filed with the Registrar within thirty days of the date of annual general meeting and the Registrar shall take them in his records as provisional till the financial statements are filed with him after their adoption in the adjourned annual general meeting for that purpose:

14. Section 137-Copy of Financial Statement to be filed with Registrar
Provided further that financial statements adopted in the adjourned annual general meeting shall be filed with the Registrar within thirty days of the date of such adjourned annual general meeting with such fees or such additional fees as may be prescribed within the time specified under section 403: Provided also that a One Person Company shall file a copy of the financial statements duly adopted by its member, along with all the documents which are required to be attached to such financial statements, within one hundred eighty days from the closure of the financial year: Provided also that a company shall, along with its financial statements to be filed with the Registrar, attach the accounts of its subsidiary or subsidiaries which have been incorporated outside India and which have not established their place of business in India.

15. Section 137-Copy of Financial Statement to be filed with Registrar
(2) Where the annual general meeting of a company for any year has not been held, the financial statements along with the documents required to be attached under sub-section (1), duly signed along with the statement of facts and reasons for not holding the annual general meeting shall be filed with the Registrar within thirty days of the last date before which the annual general meeting should have been held and in such manner, with such fees or additional fees as may be prescribed within the time specified, under section 403.
(3) If a company fails to file the copy of the financial statements under sub-section (1) or sub-section (2), as the case may be, before the expiry of the period specified in section 403, the company shall be punishable with fine of one thousand rupees for every day during which the failure continues but which shall not be more than ten lakh rupees, and the managing director and the Chief Financial Officer of the company, if any, and, in the absence of the managing director and the Chief Financial Officer, any other director who is charged by the Board with the responsibility of complying with the provisions of this section, and, in the absence of any such director, all the directors of the company, shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both.

16. FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
Pursuant to Section 137 of the Act, a copy of Financial Statements, including the consolidated Financial Statement, which have been duly adopted at the annual general meeting of the Company shall be filed with ROC within 30 days of the date of Annual General Meeting in Form AOC-4. An additional Period of 270 days is also provided under section 403 of the Act for the filing of Financial Statement after the above mentioned period of 30 days on payment of additional fees provided under the Act.
A copy of the Form AOC-4 is attached herein below for your convenience:

17. FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
Where such accounts are not adopted at Annual General Meeting or adjourned Annual General Meeting, such unadopted financial statements shall be filed with ROC in Form AOC-4 within 30 days of the Annual General Meeting of the Company and ROC shall take them in his records till the financial statements are filed with him after their adoption in the adjourned Annual General Meeting. Financial Statements adopted in the adjourned Annual General Meeting shall be filed with ROC within 30 days of the date of such adjourned Annual General Meeting. An additional Period of 270 days is also provided under section 403 of the Act for the filing of Financial Statement after the above mentioned period of 30 days on payment of additional fees provided under the Act.

18. FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
One Person Company is required to file its Financial Statement duly adopted by its member along with all the documents which are required to be attached to such financial statements within 180 days from the closure of the Financial Year.
A Company shall, along with its financial statements to be filed with ROC in form AOC-4, attach the Accounts of its subsidiary or subsidiaries which have been incorporated outside India and which have not established the place of business in India.

19. FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
Where the Annual General Meeting of a Company for any year has not been held, the financial statements along with the documents required to be attached, duly signed along with the statement of facts and reasons for not holding the Annual General Meeting shall be filed with the ROC within 30 days of the last date before which the Annual General Meeting should have been held .

20. FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
Further all listed Companies and their Indian subsidiaries or all companies having paid up share capital of Rupees 5 crores or more or all companies having turnover of Rupees 100 crores or more or all Companies which were hitherto covered under the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2011, have to file their Financial Statements in AOC-4 (XBRL) using XBRL taxonomy. "Extensible Business Reporting Language" (XBRL), means a standardised language for communication in electronic form to express, report or file financial information by the companies under the Act
Companies in Banking, Insurance, Power Sector and Non-Banking Financial Companies are exempt from XBRL filing.

21. NON-COMPLIANCE-FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
If the Companies fails to file the copy of financial statements before the expiry of the additional period specified in section 403 of the Act, the Company shall be punishable with fine of Rs for every day during which the default continues but which shall not more than Rs. 10,00,000 and the managing director and chief financial officer of the Company, if any, and in the absence of Managing Director and the Chief Financial Officer, any other director who is charged by the Board with the responsibility of complying with the provisions of this section, and in the absence of any such director, all the directors of the Company, shall be punishable with imprisonment for a term which may extend to 6 months or with fine which shall not less than Rs. 1,00,000 but which may extend to Rs. 5,00,000 or with both.

22. NON-COMPLIANCE-FINANCIAL STATEMENT (AOC-4) (AOC-4 XBRL)
Further pursuant to Section 448 of the Act, if in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purpose of any of the provisions of the Act or rules made there under, any person making a statement which is false in material particulars knowing it to be false or omits any material fact, knowing it to be material, shall be punishable under section 447 of the Act for playing fraud i.e. such person shall be punishable with imprisonment for a term which shall not less than 6 month but which may extend to 10 years and shall also be liable to fine which shall not be less than the amount involved in the fraud but which may extend to 3 times the amount involved in the fraud. Further where the fraud in question involves public interest, the term of imprisonment shall not be less than 3 years.

23. Section 447-Punishment for Fraud
447. Without prejudice to any liability including repayment of any debt under this Act or any other law for the time being in force, any person who is found to be guilty of fraud, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to ten years and shall also be liable to fine which shall not be less than the amount involved in the fraud, but which may extend to three times the amount involved in the fraud: Mediation and Conciliation Panel. Power of Central Government to appoint company prosecutors. Appeal against acquittal. Compensation for accusation without reasonable cause.

24. Section 447-Punishment for Fraud
Provided that where the fraud in question involves public interest, the term of imprisonment shall not be less than three years.
Explanation.—For the purposes of this section—
(i) “fraud” in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss;
(ii) “wrongful gain” means the gain by unlawful means of property to which the person gaining is not legally entitled;
(iii) “wrongful loss” means the loss by unlawful means of property to which the person losing is legally entitled.

25. Section 448-Punishment for false evidence
448. Save as otherwise provided in this Act, if in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purposes of any of the provisions of this Act or the rules made thereunder, any person makes a statement,— (a) which is false in any material particulars, knowing it to be false; or (b) which omits any material fact, knowing it to be material, he shall be liable under section 447.

26. CONCLUSION
Form MGT-7, AOC-4, AOC-4 XBRL should be prepared carefully and diligently.
Professionals (CA, CS, CWA) should be careful while certifying the Form MGT-7, AOC-4, AOC-4 XBRL. Despite the provisions of section 92, 447,448 of the Companies Act, 2013, The respective professional body can also take action against the professionals for professional misconduct.
Offences under Section 92 and 137 are compoundable with the permission of special courts only. However the provisions relating to Special Courts and Compounding under Companies Act, 2013 has not yet come into force till date. Accordingly provisions of Companies Act, relating to Compounding shall be applicable.
Further if the officer or professional find guilty under section 447 or 448 of the Companies Act, 2013 relating to Form MGT-7, AOC-4,AOC-4 XBRL, then the offence shall be non-compoundable.