MCA: Easy Exit Scheme, 2010

MCA on 26th May 2010 introduce Easy Exit Scheme, 2010, highlights of the Scheme are as under:

(i) The Scheme shall come into force on the 30th May, 2010 and shall remain in force up to 31st August, 2010.

(ii) Definitions - In this Scheme, unless the context otherwise requires, - (a) “company” means a company registered under the Companies Act, 1956;

(b) “Collective Investment Management Company” means the company as defined in clause (h) of sub-regulation of 2 of Securities and Exchange Board of India (Collective Investment Companies) Regulations, 1999;

(c) “defunct company” means a company registered under the Companies Act, 1956 which is not carrying over any business activity or operation on or after the 1st April, 2008 and includes a company which has not raised its paid up capital as provided in sub sections (3) and (4) of section 3 of the Companies Act, 1956;

(d) “Non-Banking Financial Company” means a company as defined under clause (f) of section 45-I of the Reserve Bank ofnIndia Act, 1934;

(e) “Scheme” means the “Easy Exit Scheme, 2010”, being specified through this Circular;

(f) “vanishing company” means a company, registered under the Companies Act, 1956 and listed with Stock Exchange which, has failed to file its returns with Registrar of Companies and Stock Exchange for a consecutive period of two years, and is not maintaining its registered office at the address notified with the Registrar of Companies or Stock Exchange and none of its Directors are traceable.

(iii) Applicability: -

(a) Any “defunct company” which has active status on Ministry of Corporate Affairs portal may apply under EES, 2010 in accordance with the provisions of this Scheme for getting its name strike off from the Register of Companies;

(b) Any defunct company which is a Government Company shall submit ‘No Objection Certificate’ issued by the concerned Administrative Ministry or Department or State Government along with the application under this Scheme;

(c) The purpose of the Scheme is to allow eligible companies to avail of this opportunity to exit from the Register of Companies after fulfilling the requirements laid down herewith and the decision of the Registrar of Companies in respect of striking off the name of company shall be final.

(iv) Scheme not applicable to certain companies: - The Scheme does not cover the following companies namely:-

(a) listed companies;

(b) companies registered under section 25 of the Companies Act, 1956;

(c) vanishing companies;

(d) companies where inspection or investigation is ordered and being carried out or yet to be taken up or where completed prosecutions arising out of such inspection or investigation are pending in the court;

(e) companies where order under section 234 of the Companies Act, 1956 has been issued by the Registrar and reply thereto is pending or where prosecution if any, is pending in the court;

(f) companies against which prosecution for a noncompoundable offence is pending in court;

(g) companies accepted public deposits which are either outstanding or the company is in default in repayment of the same;

(h) company having secured loan ;

(i) company having management dispute;

(j) company in respect of which filing of documents have been stayed by court or Company Law Board(CLB) or Central Government or any other competent authority;

(k) company having dues towards income tax or sales tax or central excise or banks and financial institutions or any other Central Government or State Government Departments or authorities or any local authorities.

(v) Procedure for making an application:-

(a) Any defunct company desirous of getting its name strike off the Register under Section 560 of the Companies Act, 1956 shall make an application in the Form EES, 2010, annexed;

(b) The Form EES, 2010, should be filed electronically on the Ministry of Corporate Affairs portal namely www.mca.gov.in and there shall be no fee payable for filing of the same;

(c) In case, the application in Form EES, 2010, is not being digitally signed by any of the director or Manager or Secretary, a physical copy of the Form duly filled in, shall be signed manually by a director authorised by the Board of Directors of the company and shall be attached with the application Form at

the time of its filing electronically;

(d) In all cases, the Form EES, 2010, shall be certified by a Chartered Accountant in whole time practice or Company Secretary in whole time practice or Cost Accountant in whole time practice;

(e) The company shall disclose pending litigations if any, involving the company while applying under this Scheme;

(f) The Form shall be accompanied by an affidavit annexed at Annexure- A of Form EES, 2010, which should be sworn by each of the existing director(s) of the company before a First Class Judicial Magistrate or Executive Magistrate or Oath Commissioner or Notary, to the effect that the company has not carried on any business since incorporation or that the company did some business for a period up to a date (which should be specified) and then discontinued its operations and has not carried on any business after the 1st April, 2008, as the

case may be;

(g) The Form EES, 2010 shall further be accompanied by an Indemnity Bond, duly notarized, as annexed at Annexure B of Form EES, 2010, to be given by every director individually or collectively, to the effect that any losses, claim and liabilities on the company, will be met in full by every director individually or collectively, even after the name of the company is struck off the register of Companies;

(h) The Company shall also file a Statement of Account annexed at Annexure C, prepared as on date not prior to more than one month preceding the date of filing of application in Form EES, 2010, duly certified by a statutory auditor or

Chartered Accountant in whole time practice, as the case may be.

(vi) Simplified procedure for Registrar of Companies for removal of name of defunct companies:-

(a) The Registrar of Companies, on receipt of the application, shall examine the same and if found in order, shall give a notice to the company under section 560(3) of the Companies Act, 1956 by e-mail on its e-mail address intimated in the Form, giving thirty days time, stating that unless cause is shown to the contrary, its name be struck off from the Register and the company will be dissolved;

(b) The Registrar of companies shall put the name of applicant(s) and date of making the application(s) under Easy Exit Scheme, 2010, on daily basis, on the MCA portal www.mca.gov.in, giving thirty days time for raising objection, if any, by the stakeholders to the concerned Registrar;

(c) In case of company(s) like Non-Banking Financial Company(s), Collective Investment Management Company(s) which are regulated by other Regulator(s) namely RBI, SEBI, the Registrar of Companies, at the end of every week, after the Scheme commences, shall send intimation of such companies availing EES, 2010, during that period to the concerned Regulator(s) and also an intimation in respect of all companies availing EES, 2010, during that period to the office of the Income Tax Department giving thirty days time for their objection, if any;

(d) The Registrar of Companies immediately after passing of time given in sub-paras (a) to (c) of this Para and on being satisfied that the case is otherwise in order, shall strike its name off the Register and shall send notice under sub-section (5) of nsection 560 of the Companies Act, 1956 for publication in the

Official Gazette and the applicant company under this Scheme shall stand  issolved from the date of publication of the notice in the Official Gazette.

ANNEXURE-A

AFFIDAVIT

(to be given individually by every director)

1. I/, Director of ___________________________________ , (hereinafter called “the Company”), incorporated on ___/___/_____ under the Companies Act, 1956 having its Registered Office at __________________and having CIN No __________________ do solemnly affirm and state as under

2. I/ _______________, S/o/ D/o Shri/ Smt___________, holder of DIN /Income Tax PAN /Passport number: ________________(copy of Income Tax PAN /Passport duly attested by a Gazetted Officer or a whole time practicing professional (Chartered Accountant/ Company Secretary/Cost Accountant) or a Company Secretary in full time employment of the company is enclosed) am Director of the company stated above since_______________(mention date of appointment).

3. My present residential address is _____________________ (Copy of documentary evidence duly attested by a Gazetted Officer or a whole time practicing professional (Chartered Accountant/ Company Secretary/Cost Accountant) or a Company Secretary in full time nemployment of the company is enclosed. Alternatively, an affidavit sworn before Magistrate may be enclosed)

4. My permanent address is ____________________________ (Copy of documentary evidence duly attested by a Gazetted Officer or a whole time practicing professional (Chartered Accountant/ Company Secretary/Cost Accountant) or a Company Secretary in full time employment of the company is enclosed. Alternatively, an affidavit sworn before Magistrate may be enclosed)

5. The company maintains/does not maintain any bank account as on date (mention details of Bank Account(s) if maintained).

6. I affirm that the Company ___________________ (mention name of the company) have assets and liabilities amounting to Rs.______________ (as per annexed Statement of Accounts).

7. The Company has been inoperative from the date of its incorporation / The company commenced business/operations/commercial activity after incorporation but has been inoperative for the past _________________ year(s) due to following reasons*._______________ (Give the reasons here)

8. As on date, the Company does not have any dues towards Income Tax / Sales Tax / Central Excise/ Banks and Financial Institutions; any other Central or State Government Departments/Authorities or any Local Authorities.

9. Strike out whichever is not applicable:-

(i) There is no litigation pending against or involving the company.

(ii) There are litigations pending against the company, details of which are mentioned under serial number 9 of Form EES 2010.

10. In case of any loss(es) to any person or any valid claim and liability arising from any person after the striking off the name of the Company________(mention name) from the Register of Companies, I, the director of the company, undertake to indemnify any person for such losses,

valid claim and liability and the indemnity bond to this effect is being submitted separately with the application Form.

I solemnly state that the contents of this affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false.

Signature: ____________________

(Deponent)

Verification:-

I verify that the contents of this affidavit are true to the best of my knowledge and belief.

Place :_________________ Signature :________________

(Deponent)

Date: __________________

ANNEXURE-B

INDEMNITY BOND

(to be given individually or collectively by every director )

To

The Registrar of Companies,

1. I/ We, the director (s) of ___________________________________ ( mention name of the company), incorporated on ___/___/_____ under the Companies Act, 1956, having its Registered Office at _______________ _________________________do hereby declare that:

2. I/ We ________________, S/o D/o Shri/Smt_______________ am/are Director (s) of this company.

3. That I/We have made an affidavit dated the _________, duly sworn before First Class Judicial Magistrate or Executive Magistrate or Oath Commissioner or Notary, affirming that the Company ___________________Private/ Limited have assets and liabilities amounting to Rs.______________.

4. Further, the Company has been inoperative from the date of its incorporation. / The company commenced business/operations/commercial activity after incorporation but has been inoperative for the past _________________ year(s)*. And the company is not intending to do any business or commercial activity. Thus the Company is defunct and I request the Registrar of Companies, _______________ to strike off the name of the Company from the Register of Companies under Section 560 of the Companies Act, 1956. * Strike out whichever is not applicable.

5. I /We do hereby undertake and indemnify in writing: (a) to pay and settle all lawful claims arising in future after the striking off the name of the Company.

(b) to indemnify any person for any losses that may arise pursuant to striking off the name of the Company.

(c) to settle all lawful claims and liabilities which have not come to our notice up to this stage, even after the name of the Company  has been struck off in terms of Section 560 of the Companies Act, 1956.

Place:                             (Name, Father’s name, Address & Signature)

Date: (To be given by every director)

WITNESSES:

1. Signature:

Name:

Father’s name:

Address:

Occupation:

2. Signature:

Name:

Father’s name:

Address:

Occupation:

Editor