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TMI Blog2021 (7) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act, 2013 as it stood amended with effect from 2nd November, 2018, gives power to this Tribunal to compound the offences punishable under the Companies Act, 2013 other than the offences punishable with imprisonment only or with imprisonment and fine irrespective of the pendency of prosecution even without permission of the Criminal Court. The amendment takes away the need of taking permission of Special Court - In the case on hand, even though prosecution is pending without seeking permission from the concerned Court, this Tribunal can compound the offence relying upon the aforesaid two judgments of the Hon'ble NCLAT and the amended Section 441(6) of Companies Act, 2013. The Tribunal being the Adjudicating Authority hereby compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Applicant No. 1 Company is ₹ 10,00,00,000/- divided into 1,00,00,000 Equity Shares of ₹ 10/- each and its Issued, Subscribed and Paid-up Share Capital is ₹ 2,88,20,110/- divided into 28,82,011 Equity Shares of ₹ 10/- each. 4. The Central Government vide Order No. 52/26/CAB/2010 dated 30th June, 2011 directed the Applicant No. 1 Company for Audit of Cost Records and filing of Cost Audit Report in terms of the provisions of Section 233B of the Companies Act, 1956 read with the Companies (Cost Audit Report) Rules, 2011. 5. In compliance of the said Order the Applicant No. 1 Company appointed M/s. Pradip Palande Co., Cost and Management Accountants (FRN: 103472) as Cost Auditors to conduct Cost Audit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was unintentional and occurred for technical reasons beyond reasonable control of the Applicants. 9. It is stated that the Applicant No. 1 Company is a closely held Public Limited Company and offence is not of such a nature that it causes prejudice to the interests of members, creditors and other stakeholders of the Company. 10. It is further stated by the Applicants that no inspection or investigation proceedings under Chapter XIV of the Companies Act, 2013 or under the corresponding provisions of Sections 235 to 251 of the Companies Act, 1956 are pending against the Applicant No. 1 Company. 11. The Registrar of Companies, Uttar Pradesh ('Registrar') forwarded the Compounding Application filed by the Applicants to this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for a term which may extend to three years or with fine which may extend to fifty thousand rupees or with both, therefore, the offence not being an offence punishable with imprisonment only or imprisonment and with fine is compoundable under Section 441 of the Companies Act, 2013 16. The Learned PCS appearing for the Applicants further submitted that Section 233B(11) of the Companies Act, 1956 provides punishment of fine only to the company which may extent to five thousand rupees and provides for imprisonment or fine which may extend to fifty thousand rupees or with both for every officer of the Company who is in default, therefore, Section 441 of the Companies Act, 2013 post repeal of Section 621A of the Companies Act, 1956, gives po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or fine or with both. Where imprisonment is provided, the Regional Director has no jurisdiction to compound it irrespective of fine amount, therefore, in respect of Second and Third Applicants, this Tribunal has got jurisdiction to compound the offence. 20. In the above said judgment of the Hon'ble NCLAT, it is also held that the Joint Application by Company and its officers in default is maintainable. 21. Learned PCS appearing for the Applicants further contended that Tribunal can compound the offence even though prosecution is pending against the Applicants and prior permission of Special Court is not necessary to compound the offence. On this aspect learned PCS relied upon the Judgment of the Hon'ble NCLAT, Bengaluru Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fide intention or any willful negligence on the part of the Applicants and the Applicants have already taken reasonable steps to ensure that the default is not committed in future, therefore, there appears to be no legal impediment in compounding this offence and the Applicants prayer can be granted. 26. The Tribunal being the Adjudicating Authority hereby compounds the said offence under Section 233B of the Companies Act, 1956 for the Financial year 2013-14 on payment of the compounding fee of ₹ 5000 (Rupees Five Thousand Only) by the Applicant No. 1 Company and ₹ 40,000 (Rupees Forty Thousand) each by the Second and Third Applicants. The total compounding fee payable by the Applicants No. 1, 2 and 3 is ₹ 85,000 (Rup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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