2019 (1) TMI 873 - HC - Companies Law

Increase in authorized share capital - failure to submit the e-From 5 - Held that - Considering the reason furnished for not filing the such e-form 5 for the years 2010, 2012 and 2013 and also the submissions made by the petitioner it is observed that the Petitioner company itself admitted its fault for deliberately / intentionally not filing the required e-form 5 within the stipulated time limit vide its contention that various other forms were filed during the said period in spite of the fact that e-form 5 was also very much in operation / existence till 31.03.2014 for filing the same pursuant to the increase in the share capital by the Petitioner Company. There is no dispute that the authorized share capital was increased when the provisions of the Companies Act, 1956 were in vogue and the petitioner was required to deposit fee along with documents / form in terms of the Rules, as in place then but the fact remains and also conceded by Mr. Chopra that the petitioner had filed the e-Form only in the year 2014 after the Rules of 2014 were framed. If that be so, the fee as payable under the said Rules (of 2014), need to be deposited by the petitioner, as it is clear from the reading of the Rules that it is the fee, as applicable at the time of actual filing of the documents / Forms, which were due to be filed under the Companies Act, 1956 shall be payable. So it is the fee as in vogue on the date of filing of the documents / forms that shall be payable. We agree with the stand taken by the respondents in the counter affidavit.

Summary

Issues:
Challenge to Table of Fee under Registration of Offices and Fees Rules, 2014 as ultra vires and unconstitutional, Acceptance of Form SH-7 with old fee structure, Application of fee under old Companies Act/Rules vs. new fee structure under Rules of 2014.

Analysis:
1. The petitioner sought a writ of Certiorari to set aside a portion of the Table of Fee under Registration of Offices and Fees Rules, 2014, claiming it to be ultra vires and unconstitutional. The petitioner, a company incorporated in 1989, increased its authorized share capital in 2010, 2012, and 2013 without filing Form 5 with the respondent. The petitioner argued that the new fee structure under the Rules of 2014 should not apply to them, as the non-filing of Form 5 was unintentional and occurred due to global circumstances and financial constraints.

2. The petitioner contended that they should be liable to pay the fee under the old Companies Act/Rules, not the new fee introduced in 2014. They argued that the fee for belated filing should be calculated based on the old fee structure applicable at the time of the offense. The petitioner cited various judgments to support their argument, emphasizing that no person can be penalized under a law that was not in force at the time of the offense.

3. The respondents, on the other hand, stated that the petitioner failed to file the necessary forms for the increased authorized share capital within the stipulated time under the Companies Act, 1956. They highlighted that the Rules of 2014 were implemented after due deliberations and that the petitioner should have filed the required forms in 2010, 2012, and 2013 when Form 5 was in force. The respondents argued that the petitioner admitted fault for not filing the forms within the prescribed time limit.

4. The Court observed that the petitioner only filed the required form in 2014 after the Rules of 2014 were framed. Therefore, the fee payable by the petitioner should be as per the new fee structure under the Rules of 2014, applicable at the time of filing the documents. The Court agreed with the respondents' stand that the fee in force at the time of actual filing of the forms should be paid. The judgments cited by the petitioner were deemed irrelevant to the present case.

5. Ultimately, the Court dismissed the petition, stating that there was no merit in the petitioner's arguments. The costs were not awarded to any party, and a related application was dismissed as infructuous. The judgment upheld the application of the new fee structure under the Rules of 2014 for the petitioner's delayed filings, emphasizing the importance of complying with the statutory requirements within the prescribed timelines.