50 MCA FAQ’s on CFSS, 2020 and LLP Modified Settlement Scheme, 2020.
Major Update:
· Delayed MGT -14 : For filing MGT-14 beyond 300 days, condonation is required. However, AoC-4 for the past year(s) can be filed without any condonation. (Que 10)
· Company is under NCLT, and Operations are managed by IP:
Can take benefits if Company status is not struck off and if it struck off it can take the benefit after it is revived
· Foreign company having Project Office in India – Yes Applicable
· Availability of CFSS Form 20202:
CFSS 2020 would be made available w.e.f 1st October 2020 and till 31st March 2021
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Overview:
Companies
Fresh Start Scheme, 2020 (CFSS-2020)
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Modified LLP
Settlement Scheme, 2020.
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The Ministry of
Corporate Affairs (MCA) vide its General Circular No. 12/2020 dated
30.03.2020 has came up with the Companies Fresh Start Scheme, 2020 for
one-time application of condonation of delay of filling the various
documents, forms, returns etc. with the Registrar.
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MINISTRY OF CORPORATE AFFAIRS (MCA) vide General
Circular No. 13/2020 and File No. F. No. 17/61.2016-CL-V-Pt-I issued dated
30th March, 2020, has modified the provisions related to LLP SETTLEMENT
SCHEME, 2020.
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Applicable w.e.f. 01.04.2020 And shall remain into Force up to
30.09.2020.
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Applicable w.e.f. 01.04.2020 And shall remain into Force up to
30.09.2020.
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Applicability of the this Scheme:
Any ‘defaulting company’
is permitted to file belated documents which were due for filing on any given
date in accordance with the provisions of this Scheme:
Immunity from the launch
of prosecution or proceedings for imposing penalty shall be provided only to
the extent such prosecution or the proceedings for imposing penalty under the
Act pertain to any delay associated with the filings of belated documents.
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Applicability of the this Scheme: The
defaulting LLP, which have filed their belated documents till 30.09.2020 and
made good the default shall not be subjected to prosecution by the Registrar
of such defaults.
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Circular Available at:
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Circular available at:
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·
List
available Forms at Source / Link:
MCA has received various queries related to :
1. Companies Fresh Start Scheme, 2020
(CFSS-2020)
2. Modified LLP Settlement Scheme, 2020.
To provide guidance and clarity to the
stakeholders MCA has came up with the FAQ’s on FAQs on Companies Fresh Start
Scheme (CFSS), 2020 and LLP Modified Settlement Scheme, 2020.
FAQs on Companies Fresh
Start Scheme (CFSS), 2020 and LLP Modified Settlement Scheme, 2020
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1. Is the CFSS 2020 applicable on foreign company? Will the forms
FC-1, FC-2 and FC-3 be covered under the scheme?
Ans: Yes.
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2. How to
file the belated returns for companies under liquidation?
Ans: Only Refund form, GNL-2
(149, 152, 153, 154, 156, 157, 158, 159 and others), INC-28
(Amalgamation/Merger/Demerger/445, 466, 481, Others), MGT-14 (Others) and
GNL-4 are allowed to be filed if the company status is under liquidation.
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3. Can Deactivated
director activated through this scheme?
Ans: Yes. He can file DIR-3
KYC eform/Web form
and INC-22A (Active) as applicable without any payment of fee
provided such director is not disqualified under section 164 of the CA 2013.
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4. Should the returns be
filed for the subsidiary where its Holding is currently under liquidation?
But the returns relate to the period where the holding had its normal
business activities. How to deal
this?
Ans: Yes.
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5. Under this scheme whether AoC-4 for a year can be filed, without
filling the AOC-4 for the previous year?
Ans: Yes, you can file without filing for the previous year. There is no restriction, however it is
expected that
complete and continuous
year filing (without skipping intermediate year) will be good corporate governance.
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6. Whether
any separate AOC 4 and MGT 7 has to be filed for companies under liquidation?
Ans: There
is no separate AR/BS for companies under Liquidation.
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7. Whether CFSS scheme is applicable for the companies which have
been automatically struck off due to non-filing of annual documents i.e.
Annual Returns?
Ans: The struck off companies have to approach the NCLT for reviving their
companies first and a copy
order
of NCLT approving for such
revival under section 252 of the CA 2013 to be filed in Form NO.INC-28. Later
on they can take the benefit of this scheme.
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8. With regard to LLP settlement Scheme, should the Indemnity Bond be
executed on Non Judiciary Stamp Paper? If yes, then on what denomination.
Ans: No indemnity bond is required under the LLP Settlement Scheme.
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9. Applicability of CFSS to
a foreign company having Project Office in India. (FC Forms to be filed in
ROC).
Ans: Yes. CFSS is applicable for foreign companies.
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10. For filing MGT 14,
AOC-4 for the past year, do we need to apply for condonation also?
Ans: For filing MGT-14 beyond
300 days, condonation is required. However, AoC-4 for the past year(s) can be
filed without any condonation.
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11. If the Company is in Active
mode, but the directors’ DINs are deactivated, what should we do? Ans: Deactivated
DINs for not filing the DIR-3 KYC can be activated by filing it now without
the fee of INR 5000 during the currency of the CFSS, 2020 provided such
director is not disqualified under section 164 of
the CA 2013
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12.
In our case, company was
struck off and as a result both directors were disqualified. Now Company was
Revived by NCLT and Revival order has been
passed.
(i)
How to remove
disqualification of director u/s 164(2)(a)?
Ans: The removal of
disqualification is not automatic and the same cannot be cured under the
provisions of CA, 2013.
(ii)
INC 28 is not filed till
date (as it is required to be filed within 30 Days).
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Ans: INC-28 can be filed by an
authorised signatory who can be added from backend by the jurisdictional RoC
based on evidence produced by the company.
(iii) How to do Annual
filing of Past year? Ans: Past year filings can be made as per applicable norms.
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13. Can a
company also file its old annual returns for 3 to 4 years without late fees?
Ans: Yes,
without additional fee,
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14. The company is an inactive company. The
company has defaulted in filing form SH-7. It now wants to file form SH-7
under CFSS 2020 scheme and simultaneously make application for striking off
the name by filing form STK 2.
Ans: SH-7 can be filed with
applicable fee and additional fee. The additional fee waiver is not
applicable for
SH-7 and charge related forms.
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15. Please let us know the List of eForms eligible for additional fee
waiver during the currency of the CFSS, 2020 and LLP Modified Settlement
Scheme, 2020?
Ans: List of forms (CA56/CA13/LLP) eligible for additional fee waiver is
available at the link:
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16. A Company was not able to file Satisfaction of
charge in CHG 4 as the DIN of the director was deactivated. Now with this
scheme can the company first
update its returns, get the din activated
and then file CHG 4 under this scheme even though there is a delay of 1 year?
Ans: Deactivated DIN can be reactivated by filing DIR-3 KYC now without
payment of INR 5000. Filing of CHG-4 towards satisfaction of charges beyond
300 days is NOT permissible, however for delay in filing
satisfaction
of charges, form no.CHG-8 may be filed and the power for such Condonation of
delay (satisfaction) is vested with Regional Director(s)
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17. Is CFSS-2020 scheme
applicable to subsidiary of a foreign company registered in India and foreign
company itself?
Ans: Yes.
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18. Can LLP with Under Strike off or ‘Defunct’ status file form 8 and
form 11 for past 3-4 years? (as per the scheme or even in general)?
Ans: No.
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19. Can we file STK-2 without filing INC-20A in
this scheme? As company has not started its business and even bank account is
not opened by company. So want to strike off the name and close company to
avoid any defaults and penalties.
Ans: STK-2 can be filed by a
company who has not filed INC-20A within 180 days of incorporation.
After a
period
of 180 days of incorporation, filing of form INC-20A is allowed to be filed
first. Thereafter, they can file STK-2 if they desire so by following the
relevant provisions of the Act relating to Strike off procedure.
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20. How to
rectify AOC 04 filed with inadvertent errors?
Ans: AoC-4 or any other STP
form filed with inadvertent errors can be marked as ‘defective’ by the
jurisdictional RoCs based on evidence and formal request. Once the particular
STP is marked as defective fresh filing has to be made.
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21. A
Company already filed MGT-7 but AOC-4 is not yet filed. Can it file AOC-4
now? Ans: Yes.
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22. Where orders have been passed by Hon’ble NCLT
to restore the name of the company under section 252/253 subject to filing of
all the pending documents and returns and no time limit is given in the order
to file pending documents /forms/returns. The company has not yet filed the
copy of order of NCLT with ROC. Can company avail this scheme and file all
the pending documents without any additional fee?
Ans: Yes, after filing INC-28
with a copy of order passed by NCLT.
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23. What about the additional fee already paid by the entities? Is
this not a hardship on them who have already paid heavy additional fee in
order to abide the compliance.
Ans: The CFSS 2020 and LLP Modified Settlement Scheme 2020 have been
notified in view of the COVID-
19 To provide a first of its kind
opportunity to both Companies and LLPs to make good any filing related
defaults, irrespective of duration of default, and make a fresh start as a
fully compliant entity.
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24. In the CFSS,2020
please suggest whether it would be applicable to Project office of a company
in India having FCRN no.?
Ans: Yes.
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25. For filing
commencement of business form to newly
incorporated companies now additional 180 days is allowed but which companies are allowed such
benefit. What is the cut
off dates for newly
incorporated companies i.e., to companies incorporated from which date this
benefit will get passed on?
Ans: All newly incorporated
companies are required to file a declaration for Commencement of Business
within 180 days of incorporation under section 10A of the Companies Act,
2013. An additional period of 180
more days has been allowed for this compliance.(please see circulars issued
in March, 2020)
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26. In the case of a company whose status as per MCA is active (for
filing) but whose all directors are disqualified, what is the way out to
avail the benefits of the fresh start scheme?
Ans: Disqualification of Directors cannot be cured under the scheme.
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27. An LLP is under non-compliance of one form. The LLP has applied
for strike off in February 2020. Whether such an LLP can withdraw strike off
application and file the form?
Ans: There is no specific
process available for withdrawal of Form 24. If Form 24 is not yet approved,
LLP may approach the jurisdictional ROC to ‘reject’ the form so that status
of LLP gets marked to ‘Active’ and
relevant filings can be
made.
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28. Can companies with paid up capital between
5 crores to 10 crores
which did not file Active
form since CS was not appointed file the form now since threshold was
increased to 10 crores from 5 crores from 01.04.2020?
Ans: ACTIVE form can be filed
without the fee of INR 10000.
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29. What are options available to a company the name of which has
been struck off by the ROC but is having business activities for availing
this scheme.
Ans: The company has to approach NCLT and get an Order for reviving.
Thereafter the company can take the
benefit under CFSS.
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30. Does the
scheme cover default for DIR-3 KYC? Ans: DIR-3 KYC can be filed without the fee of
INR 5000.
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31. Does the CFSS 2020 allows refund of the late filing fee and
penalty which are already paid on Company fillings made before march 2020?
Ans: No.
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32. Whether immunity certificate will be generated automatically once
CFSS form is uploaded or it will be subject to approval of concern ROC.
Ans: Subject to examination and approval by the jurisdictional RoC.
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33. Whether late fees/additional fees be waived
off after filing of Immunity Form i.e. full amount will be paid in advance
(while filing of any form out of 76 forms) and refunded back after filing of
Immunity Form?
Ans: Additional fees would not
be charged in respect of the 76 forms and such forms have already been
displayed in MCA-21 portal.
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34. Will MCA be refunding the Additional fees received as clients
have paid the same while filing the same in ROC during 2019-20?
Ans: Additional fee waiver becomes applicable only during the currency of
the scheme.
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35. Can a company whose
director has been disqualified can use this scheme?
Ans: The CFSS 2020
is applicable for
defaulting companies to file the belated documents and does not extend
to curing the disqualification of Directors.
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36. Additional fee is still showing in enquire fees menu in MCA
portal. Whether it needs to be updated in portal? Or it is get updated after
filing forms and generating SRN.
Ans: Yes, it gets updated while generating challan.
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37. In the original LLP
Settlement Scheme, the additional fee was to be paid at INR 10 per day up to
a maximum of INR 5000, in the modification LLP Settlement Scheme there is no
additional fees. Is the understanding correct?
Ans: Yes.
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38. If the director has been disqualified in FY 2016-17 and filling
is pending, can still the benefit of the CFSS scheme can be availed by the
company (if status of company is still active)?
Ans: CFSS 2020 does not cure the disqualification of Director. If there
are no authorized signatories left in
the company, the company may approach the
jurisdictional RoC with a formal request to add one authorized signatory from
backend. Later on the company may file the belated documents under the
scheme.
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39. Whether the scheme is applicable for companies already struck off
by MCA and not voluntarily filed by the company?
Ans: The struck off companies may approach the NCLT for revival. Once the
company is revived the belated
documents may be filed.
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40. Can you please explain again on the dual dates of August 31st and
September 30th in LLP (Modified) Settlement Scheme, 2020?
Ans: The belated documents can
be filed without additional fee till 31st August,2020. However
belated documents could be filed till 30th September and no prosecution or punishment proceedings would be
launched.
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41. LLP is not in
operation since incorporation in FY 2015-16, now wants to strike off from the
register. LLP has already Form 11 for FY 15-16 but not Form 8, is it
mandatory to file Form 8 availing LLP scheme before filing Form 24?
Ans: No. For list of
attachments while filing Form 24, please refer to instruction kit available
on the portal.
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42. Which form to be file earlier CFSS-2020 or
belated forms?
Ans: Belated forms have to be filed first. CFSS-2020 would be made
available w.e.f 1st October, 2020.
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43. Will this scheme be applicable on filing, if due date is falling
between period April 2020 to September, 2020?
Ans: Irrespective of the due date additional fee waiver can be availed
during the currency of the scheme.
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44. Is every company availing this scheme need to file FORM CFSS-2020
before filling the all the belated documents or should we file the documents
directly?
Ans: Belated documents have to be filed during
the currency of the scheme. If the scheme
benefits are availed,
such a company has to file
the CFSS eform on or after 1st October, 2020 and before 31st
March, 2021.
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45. Annual Returns as well as Auditor Appointment is not done since
April 2015. Can the private limited company avail this scheme?
Ans: All companies can avail the scheme for filing belated documents.
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46. If company is under NCLT, and Operations are managed by IP, whether
he can opt under this scheme?
Ans: Yes, if the company status is not struck off and if it struck off it
can take the benefit after it is revived.
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47. Can there be a refund of late fee deposited for forms filed
earlier the notification of scheme (forms filed are covered in scheme)?
Ans: No.
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48. As under CFSS, CFSS Form needs to be filed between 01st October
to 31st March, do we need to file any such form under LLP Modified Settlement
Scheme to get immunity?
Ans: No such requirement for LLPs
who have availed the benefit under
the LLP Modified Settlement Scheme.
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49. Is the Form CFSS 2020 currently available in the MCA portal for
e-filing? If not, when will the form be made available?
Ans: The form CFSS 2020 would be made available w.e.f 1st
October 2020 and till 31st March 2021 for filing
purposes.
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50. Form 8 is not
allowing prefill for an LLP
which is under
defunct status. How should we avail the scheme for such LLP? Is the scheme available?
Will new forms be made available then?
Ans: An LLP under struck off (Defunct) status cannot avail the benefit of
LLP Modified Settlement Scheme.
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Disclaimer:
IN NO EVENT THE AUTHOR SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS INFORMATION.
THIS HAS BEEN SHARED FOR KNOWLEDGE PURPOSES ONLY.
Great work. Really helpful!!
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