MCA imposed 16.5 Lakhs penalty on company and director for delay in CS appointment

Fact and Issue of the case

Alpur Solar Private Limited (herein after known as ‘company’) is a registered company with this office under the provisions of section 7 of the Companies Act, 2013 (erstwhile Companies Act, 1956) having its registered office as per MCA21 Registry at address First Floor, Southern Park, D-2, District Centre, Saket, DELHI, South Delhi, 110017.

On perusal of the Application of eform GNL-1 (SRN T85614188). It has been noticed that Company Secretary Ms. Sangeeta resigned from the company w.e.f. 28.01.2021 from the office of whole time company secretary that thereafter company appointed a whole time company secretary Mr. Annu Bhagat on 24.01.2022 during this period the paid up share capital of company was more than five crore rupees therefore the company was require to appoint a whole time company secretary u/s 203 of the Companies Act, 2013 read with Rule 8A of the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014.

In terms of the provisions of section 203(4) r/w 454 of the Companies Act, 2013, this office had issued Show Cause Notices (SCN) vide no. No. ROC/D/Adj/2022/Section 203/3263­3269 dated-01.06.2022 to the Company and officers in default.

A reply dated 15.06.2022 of Noticee No. 2 Adarsh Das (on behalf of company and himself) received to this office on 18.11.2022 in respect of SCN issued by this office, wherein the company cited difficulties it faced on account of the COVID-19 pandemic and the extending lockdown situation in appointment of a new whole time Company Secretary.

Observation and decision of the Tribunal.

The applicant company and its officers, who have defaulted the provisions of section 203(1) r/w 203(4) of the Act for non- appointment of Whole-Time Company Secretary are liable for penalties under section 203(5) of the Act w.e.f. 27th July, 2021 to 23″ Jan, 2022. [after excluding the period of six months as provided under section 203(4)]

In exercise of the powers conferred on me vide Notification dated 24th March, 2015 and having considered the facts and circumstances of the case besides oral submissions made by the representative of Notice(s) and after taking into account the factors mentioned herein above, I do hereby impose the penalty on the company and its officers in default as per table below for violation of section 203(1) of the Act: –

Violation section	Penalty imposed on company/ director(s)	No of days of default	Calculation for penalty amount	Maximum penalty can be imposed	Penalty imposed by the adjudicating officer u/s 454 of Companies Act
u/s 203(4) of the Companies Act, 2013	On company	180*		5,00,000/-	5,00,000/-
u/s 203(4) of the Companies Act, 2013	Mr.  Adarsh   Das, Director	180*	50,000+1000×180 =2,30,000/-	5,00,000/-	Rs. 2,30,000
u/s 203(4) of the Companies Act, 2013	Mr. Rajendra Kumar Vishnoi	180*	50,000+1000×180 =2,30,000/-	5,00,000/-	Rs. 2,30,000
u/s 203(4) of the Companies Act, 2013	Mr. Tomas Parlade Malasne, Director	180*	50,000+1000×180 =2,30,000/-	5,00,000/-	Rs. 2,30,000
u/s 203(4) of the Companies Act, 2013	Pablo  Burgos Galindez, Director	180*	50,000+1000×180 =2,30,000/-	5,00,000/-	Rs. 2,30,000
u/s 203(4) of the Companies Act, 2013	Pradeep  Chauhan, Director	180*	50,000+1000×180 =2,30,000/-	5,00,000/-	Rs. 2,30,000

*No. of days have been calculated from 27.07.2021 till 23.01.2022.

a. The company and its directors are hereby directed to pay the penalty amount as per column no. ‘F’ of above Table. In case of directors such amount is required to be paid out of their own funds.

b. The company and its directors are hereby directed to rectify the default immediately from the date of receipt of copy of this Order.

c. The notices shall pay the said amount of penalty through online by using the website mca.gov.in (Misc. head) in favor of “Pay & Accounts Officer, Ministry of Corporate Affairs, New Delhi, payable at Delhi, within 90 days of receipt of this order, and intimate this office with proof of penalty paid.

d. Appeal against this order may be filed with the Regional Director (NR), Ministry of Corporate Affairs, B-2 Wing, 2nd Floor, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003 within a period of sixty days from the date of receipt of this order, in Form ADJ [available on Ministry website http://www.mca.gov.in] setting forth the grounds of appeal and shall be accompanied by a certified copy of the order. [Section 454(5) & 454(6) of the Act read with Companies (Adjudicating of Penalties) Rules, 2014]. e. Your attention is also invited to section 454(8) of the Act in the event of non-compliance of this order.

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