PROCEDURE FOR SEEKING EXTENSION OF DATE FOR HOLDING OF ANNUAL GENERAL OF THE COMPANY
Section 96 of the Companies Act, 2013 provides that every company other than a one-person company shall in each year hold an Annual General Meeting of its shareholders and not more than fifteen months shall elapse between the date of one annual general meeting of the company and that of the next.
Provided that first annual general meeting of the Company shall be held within nine months of the closing of the financial year and subsequent annual general meetings shall be held within six months of the closing of the financial year. The above can be explained as follows:
(i) For Newly Incorporated Company and the First Annual General Meeting- 9 months from the date of end of financial year.
(ii) For Other Companies and subsequent Annual General Meeting 6 months from the date of end of financial year (iii) Maximum time gap between two annual general meetings shall not be more than 15 months.
So from above, it is clear that Annual General Meeting can be held only upto September 30, 2019 (which is within 6 months of closing of Financial Year i.e. 31.03.2019).
However, if the companies feel that it is not possible to hold the Annual General Meeting within the due time period of 6 months from close of Financial Year, the company may apply for extension of date of AGM and the Registrar may, for any special reason, extend the time within which any annual general meeting, other than the first annual general meeting, shall be held, for a period not exceeding three months. That means Registrar on special circumstances, may extend the time of holding of AGM by a company, which has applied for extension, upto December 31, 2019.
The same has been provided under the THIRD-PROVISO TO SECTION 96 OF THE 2013 ACT which state as follows:
‘Provided also that the Registrar may, for any special reason, extend the time within which any annual general meeting, other than the first annual general meeting, shall be held, by a period not exceeding three months.” APPLICATION MUST BE FILED WELL IN ADVANCE BEFORE THE DUE DATES
Company may file an application for extension of time limit for holding of Annual General Meeting. But it is to be noted that the date of filing of an application must be well in advance. And the dates depend from case to case. Some of the cases are as follows:
(i) Non finalization of account: There may be chances that accounts may not be finalized on time.
Eq.: If the company intends to hold AGM on 30.09.2019. Notice must be sent along with annual Final Accounts atleast 25 days back i.e. on or before 05.09.2019. So if the company thinks that it is not possible to finalise the accounts till 05.09.2019, then company has to file an application before 05.09.2019 otherwise it may result in contravention of act.
(ii) Non availability of shareholders which may result in absence of quorum (specially in case of Private Limited Company)
Eq.: In case a company has only 2 shareholders and one of the shareholder is on foreign tour and it is not possible for him to be in India on date of Annual General Meeting of the company (and in AGM two shareholders are required to be present in person to form a quorum) and the company knows of the same and it is being found that non availability of such shareholders may cause absence of quorum. In such case, company may apply for extension of AGM well in advance before date of holding of AGM.
In such case, application can be filed ay time, even one day before the date of AGM. And accordingly there may be any reason for extension of AGM and date of filing of application depends accordingly.
Some of the other reasons for extension of AGM have been provided hereunder:
(a) Due to non-signing of financial statements due to non-availability of Auditors due to resignation, death, incapacity to sign or such other valid reason.
(b) Non-readiness of the financial statements due to natural calamity, due to loss of financial data, absence of Directors
(c) Non availability of Managing Director since the financial statements need to be signed by the Managing Director. (d) Non-availability of directors on the valid grounds
(e) The sudden death of Directors and consequence of this the limit of directors goes below the minimum requirements of directors.
(f) Confiscation of Books of accounts by Income Tax Department, Serious and Fraud Investigation Cell or any other Government officials.
(g) Such other special reasons if such reasons are valid and justified.
Procedure to file application seeking extension of time for holding annual general meeting:
- Chairman/ Director of the company shall call for a meeting of Board of Director for which a notice must be sent at least 7 days before holding of Meeting of Board.
- To Convene a Board Meeting on the specified date;
- To Pass a resolution for extension of time limit for holding annual general meeting specifying the due reason for extension of AGM;
- The file an application to the Registrar of Companies in Form No – GNL1.
- In GNL-1, the special reason for not to be holding of AGM along with other necessary information to be provided
- To attach the Certified true copy of the Board Resolution in E Form GNL-1
- Follow up with the office of the Registrar of Company
- The registrar shall examine the application on the specific grounds and may grant an extension, if it thinks it necessary to grant the same.
- To obtain the certificate of grant of extension in holding of Annual General Meeting of the company
CONVENING OF ANNUAL GENERAL MEETING IN EXTENDED PERIOD
Once the extension is being granted, the company may convene the Annual General Meeting of the Company within the period as allowed by the Registrar of Companies. It is to be noted here that the extension can be granted only once in a Financial Year. Since the Act does not allow Registrar of Companies to give further extension.
PENALTY IN CASE OF DEFAULT BY THE COMPANY/ DIRECTORS
Company and every officer of the Company who is in default shall be punishable with fine which may extend to Rs. 1 Lakh and in case of continuing default with a further fine which may extend to Rs. 5000/- for every day during which such default continues.
Compounding in case AGM is not held or held after due date without approval from ROC:
If the Annual General Meeting is not held within the due date mentioned above or held after the due date but without taking approval of ROC for an extension then the Company will have to go to NCLT/RD, as the case may be, for compounding. Conclusion: Hence, it can be concluded from the above that if the company has any special reason, the Registrar may grant the time for holding of extension of Annual General Meeting of the company.
Disclaimer: The author is based at Jalandhar and is practicing company Secretary and a Certified CSR Professional. The information contained in this write up, as provided by the author, is to provide a general guidance to the intended user. The information should not be used as a substitute for specific consultations. Authors recommend that professional advice is sought before taking any action on specific issues. The author can be however contacted for further clarification at 99145-58709 or via mail at email@example.com