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2020 (8) TMI 579 - AT - Companies LawLevy of penalty - failure to hold Annual General Meeting of the Company for the years 2012, 2013, 2014 and 2015 - violation of provisions under Section 166 of Companies Act - HELD THAT - Admittedly, the Appellant Nos. 2 to 4 did not hold Annual General Meeting of the Company for the years 2012, 2013, 2014 and 2015 and thus violated the Provisions under Section 166 of Companies Act which is punishable under Section 168 of the Companies Act, 1956 till 31.03.2014. Thereafter, violated the Provisions under sub-section (1) of Section 96 of Companies Act, 2013 which is punishable under Section 99 of Companies Act, 2013. The Act came into force on 01.04.2014. Hence, the period of violation is 01.04.2014 to 09.07.2017. RoC in his Report has mentioned the total amount of Penalty to be imposed on each Appellant which is 2,35,90,000/- however, the Ld. Tribunal has imposed Penalty on each Appellant 27,09,000/- Ld. Tribunal to maintain the consistency has to impose Penalty which is as per calculation maximum fine ₹ 2,35,90,000/-. 1/5th of the maximum amount is ₹ 47, 18,000/-. However, Ld. Tribunal has imposed Penalty ₹ 27, 09,000/- which is less than 1/5th of the Maximum amount - thus, Ld. Tribunal has undertaken a lenient view in imposing Penalty. Appeal dismissed.
Issues:
1. Violation of Sections 166 and 96 of Companies Act, 1956 and 2013. 2. Challenge to the appointment of Directors. 3. Delay in compliances and Annual General Meetings. 4. Imposition of penalty and mitigating circumstances. Issue 1: Violation of Sections 166 and 96 of Companies Act, 1956 and 2013: The Appellants, a Pvt. Ltd. Company, failed to comply with the provisions of the Companies Act for the years 2012-2015, including holding Annual General Meetings. The National Company Law Tribunal held the Appellants liable under Sections 166 and 96 of the Companies Act, 1956 and 2013, respectively. The Tribunal allowed compounding applications but imposed penalties totaling &8377; 1,08,36,000/- on each Appellant, which the Appellants contested. The Tribunal found the violations to be continuous from 31.03.2014 to 09.07.2017 and imposed a penalty of &8377; 27,09,000/- on each Appellant, a lenient view according to the Tribunal's assessment. Issue 2: Challenge to the Appointment of Directors: The Appellants argued that the appointment of Appellants 2 to 4 as Directors was at the instance of a bankruptcy receiver, challenging the cooperation of the former directors. The Appellants faced legal challenges, including a Civil Suit and injunctions against their appointments, which were eventually vacated. They also faced delays in registering their appointments with the Registrar of Companies due to signature requirements, hindering compliance efforts. Issue 3: Delay in Compliances and Annual General Meetings: The Appellants faced challenges in compliance due to delays in obtaining necessary documentation and signatures, such as bank statements, essential for preparing accounts and holding Annual General Meetings. The delays were attributed to factors beyond the Appellants' control, preventing them from fulfilling their compliance obligations under the Companies Act. Issue 4: Imposition of Penalty and Mitigating Circumstances: The Appellants contended that the imposed penalty was unreasonable and disproportionate, considering the mitigating factors that hindered compliance efforts. They argued that the directors had no personal interest in the company and were appointed as nominees of the Swedish receiver. The Tribunal, however, found no grounds to interfere with the penalty imposed, considering the leniency shown in the penalty amount compared to the calculated maximum fine. The Tribunal emphasized the need for consistency in compounding similar offenses and factors to be considered while imposing penalties. In conclusion, the National Company Law Tribunal dismissed the Appeal, upholding the penalty imposed on the Appellants for violations of the Companies Act provisions. The Tribunal's decision considered the mitigating circumstances presented by the Appellants but found the penalty amount to be appropriate given the nature of the violations and the need for consistency in compounding offenses.
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