REGISTRAR OF COMPANIES, GUJARAT, DADRA & NAGAR HAVELI
NO. ROC-GJ/ADJ-order/Sec. 454/SMP Constructions/2023-24/1873 to 75
Dated: 10-07-2023
Company:
SMP CONSTRUCTIONS PRIVATE LIMITED [herein after referred to as "company") is a company was registered under the provisions of the Companies act, l956/2013 in the State of Gujarat having CIN: U45201GJ2002PTC041739 and presently having its registered office situated at "P-1.56, PHASE II, GIDC INDUSTRIAL ESTATE, BEHIND MIPCO, BHOLAV, BHARUCH, GUJARAT-392015, INDIA"
Fact about of the case:
During the procedural Scrutiny of the e-Forms AOC-4 filed by the Company under the MCA21 portal, it is observed from the Balance Sheet as at 31.03.2019, 37.03.2020 and 37.03.2021 filed vide SRN R16008534, R88507603 and T75991539 on 25.11,.2019, 25.01.2021 and 03.02.2022 respectively in AOC-4 that the turnover of the company is exceeding the prescribed limit for filing Cash Flow Statement However, the company has failed to attach Cash Flow Statement with the aforesaid e-Forms /AOC-4 which was required to be attached. Thus the company/Officer have violated the provisions of Section 2(40) read with Section 129 of the Companies Act, 2013 read with Rules made thereunder. The matter has been reported to the Directorate vide this office report dated 04.07.2022. The Directorate vide letter dated 09.09.2022 directed ROC, Ahmedabad to take appropriate action as per the provisions of Companies Act, 2013 and Rules made thereunder against the defaulting company and submit report. Accordingly, the matter has been taken with the company vide this office letter dated 21.09.2022 regarding non-compliance of provisions of the Companies Act, 2013. The company vide its reply dated 04.11.2022 replied that the company has regularly filed its financial statement including Balance Sheet and Statement of Profit and Loss for the FY 2018-19, 2019-20 and 2020-21. The company has duly prepared Cash Flow Statements for all the years under consideration, however inadvertently the cash flow statements were not attached in Form AOC-4 along with other attachments for the said financial years. Non attachment of Cash Flow statement is accidental omission and unintentional.
Order:
While adjudging quantum of penalty under section 137(3) of the Act The Adjudicating Officer shall have due regard to the following factors, namely;
• The amount of disproportionate gain or unfair advantage, whenever quantifiable, made as a result of default.With regard to the above factors to be considered while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the noticee or loss caused to the investor as a result of the delay on the part of the notice to redress the investor grievance are not available on the record. Further, it may also be added that it is difficult to quantify the unfair advantage made by the notice or the loss caused to the investors in a default of this nature.
• The amount of loss caused to an investor or group of investors as a result of the default.
• The repetitive nature of default.
Having considered the facts and circumstances of the case and submissions made by the Presenting Officer and Ld. PCS and after taking into accounts the factors above, the undersigned has reasonable cause to believe that the company and its officers have failed to comply with the provisions of Section 137(3) of the companies Act, 2013. I hereby imposed penalty as under:
Penalty on company, and Officer in default for the aforesaid default are as under.
Company:
Penalty (in Rs.) as per Section 137(3) of the Act: Rs.10,000
Penalty Continuing failure (in Rs.): 10,000 + 17 days* 100= 11,700
Penalty for 03 Financial Year 2018-19, 2019-20, 2020-21 (in Rs.): 3* 11700=35,100
Maximum Penalty (in Rs.): 2,00,000
Total Penalty Imposed: 35,100.
Officer In Default:
Penalty (in Rs.) as per Section 137(3) of the Act: Rs.10,000
Penalty Continuing failure (in Rs.): 10,000 + 17 days* 100= 11,700
Penalty for 03 Financial Year 2018-19, 2019-20, 2020-21 (in Rs.): 3* 11700=35,100
Maximum Penalty (in Rs.): 2,00,000
Total Penalty Imposed: 35,100.
(Default counted from the period from 77.06.2023 to 27.06.2023)
AO is of the opinion that penalty is commensurate with the aforesaid default committed by the noticees
The noticee shall pay the amount of penalty individually for the company and its officers from their personal sources/income by way of e-payment available on Ministry website wvwv.mca.gov.in under "Pay miscellaneous fees" category in MCA fee and payment Services under Rule 3(14) of Company (Adjudication of Penalties) (Amendment) Rules, 2019 within 90 days from the date of receipt of this order and copy of this adjudication order and Challan/SRN generated after payment of penalty through online mode shall be filed in INC-28 under the MCA portal without further reference.
Appeal against this order may be filed in writing with the Regional Director, North Western Region, Ministry of Corporate Affairs, Roc Bhavan, opp. Rupal park, Nr. ANKUR BUS STAND, NARANAPUM, AHMEDABAD (GUIAMT)-380013 within a period of sixty days from the date of receipt of this order, in Form ADJ setting forth the grounds of appeal and shall be accompanied by the certified copy of this order. [Section 454(5) & 454(6) ot the Companies Act, 2013 read with the Companies [Adjudicating of Penalties) Rules, 2014 as amended by Companies (Adjudication of Penalties) Amendment Rules, 2019.
Your attention is also invited to Section 454(8)(i) and 454(8) (ii) of the Companies Act,2013, which state that in case of non-payment of penalty amount, the company shall be punishable with fine which shall not less than 25,000 Rupees but which may extend to 5,00,000 Rupees and officer in default shall be punishable with Imprisonment which may extend to Six months or with fine which shall not be less than 25,000 Rupees by which may extend to 1,00,000 Rupees or with both.
The adjudication notice stands disposed of with this order.
REGISTRAR OF COMPANIES &
ADJUDICATING OFFICER
MINISTRY OF CORPORATE AFFAIRS,
GUJAMT, DADRA & NAGAR HAVELIN