Directors Disqualification
Director Identification Number (DIN) is a unique number provided to existing director or a would be director of an existing company incorporated under section 153 and 154 of Companies Act, 2013. It was created with the sole purpose to check wrongdoing and if any such wrongdoings happen, it could be tracked.
After the Companies Act, 2013 came into existence, the Ministry of Corporate Affairs under section 164(2) and 167(1)(a) of the Act, disqualified many directors and we saw a complete removal of inactive companies. Lakhs of DIN all over India were deactivated leaving behind the company’s future in danger, which further hampered the corporate sector in India.
After this, many aggrieved directors were seeking for a solution. Hence, the government issued a circular for providing revival opportunity to the defaulting company and reactivation of DIN. It came out with Condonation of Delay Scheme, which gives the directors a chance to file the necessary documents and revive their company and start their business again.
Under the Law, the companies need to file their annual return and balance sheet with the ROC every year. They are liable to fine if not done properly. If the company fails to file statutory documents with ROC from last 3 years, the MCA will strike off the company from the register of Companies; additionally it blocked DIN of all the disqualified directors in order to take preventive measure.
The Ministry of Corporate Affairs (MCA) came up with Condonation of Delay scheme which came into force from 1st January to 31st March, 2018 but it was further extended through General Circular No. 02/2018 and General Circular No. 03/2018 till 1st May, 2018. It targets defaulting companies who have not yet filed annual returns and balance sheets.
After the expiration for CODS, 2018, many disqualified directors made proposition before the High Court and the National Company Law Tribunal to restoration of their DIN and revival of their companies. A Writ Petition was filed under Article 226 of the Indian Constitution for issuing Writ of Certiorari to set aside MCA notification stating about disqualification of directors and to revive the companies which were struck off and to reactivate DIN under section 252 of the Companies Act, 2013.
The Ministry of Corporate Affairs gave clarifications in regards to the CODS vide general Circular No.5/2018 dated 17th May, 2018. Following are the main points
Step-1
Filing of Writ Petition- Disqualified Director is required to file a Writ petition under Article 226 of the Constitution of India before Hon’ble High Court. In the said writ petition Appellant is required to accompany following correspondence:
Step-2
Companies whose name has been struck off can also file an Appeal under Section 252 of the Companies Act, 2013 before the National Company Law Tribunal to restore the name of the company with ROC
Step-3
After getting orders of DIN reactivation and revival of struck off company from Hon’ble High Court and NCLT, Appellant is required to file Statutory documents with ROC and Annual returns of last 3 years with Income tax authority.
Step-4
After all the compliances and payment of penalty, if any imposed by Appellant, ROC is required to raise ticket on MCA21 portal through Change Requirement Form (CRF). ROC also needs to upload copy of the said order on the portal. After validation, the deactivated DIN will get reactivate.
If the Writ is filed, then it has to be accompanied with the following documents
*Any fee, stamp duty and miscellaneous charges shall be payable extra.
In order to provide remedy to disqualified directors and to revive struck off companies even after COD scheme, the Ministry of Corporate Affairs (MCA) has undertaken a remarkable step by issuing recent Circulars, which not only helped companies to restore their name with ROC by giving them more time but also giving opportunity to revive struck off companies by filing annual statements and other statutory documents.
Director Identification Number (DIN) is a unique number provided to existing director or a would be director of an existing company incorporated under section 153 and 154 of Companies Act, 2013.
The Central government, Ministry of Corporate Affairs has the power to allot DIN.
If the directors are disqualified under the Condonation of delay scheme, then either the promoter or the MCA if there is a shortage of the promoter shall indulge in appointing required number of directors until the directors are not appointed in the general meetings.
Under rule 14 (5) of the Companies Act, 2013, any individual who was disqualified and served five years of disqualification can make application to the Registrar of the Companies in DIR-10 form requesting for removal of their name from the list. But this option is only available after five years of disqualification.
Irrespective of the fact that the director was disqualified under section 164 of the Companies Act, they are still free to continue as the shareholder of the company.
Till date there is no procedure provided by the MCA for making a disqualified director a director again after completion of five years of disqualification.
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