Companies experiencing the proceedings under IBC 2016 do not get absolved from responsibilities of compliance, rather the compliance continues to pursue the companies with the only difference that it starts to trouble some more in addition to the company.
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A. Legislative Flow for Compliance by Companies Under CIRP or Liquidation
The companies going through the proceedings under the Insolvency and Bankruptcy Code 2016 also need to comply with the legal requirements of various acts viz., Income Tax Act 1961, Companies Act 2013, and GST Laws among other laws.
- RoC / MCA Compliance for the companies under IBC are governed by the MCA General Circular No. 08/2020 dated 06th March 2020.
B. RoC / MCA Compliance for the Companies under CIRP or Liquidation
MCA General Circular No. 08/2020 dated 06th March 2020 provides how forms will be filed in the Registry (MCA-21) by the Insolvency Professional viz. IRP / RP / Liquidator appointed under IBC 2016.
B1. Filing of Form INC-28 with the RoC
First & foremost, IRP/ RP/ Liquidator would have to file the NCLT order approving him as the IRP/ RP/ Liquidator as the case may be in Form INC-28 by selecting the appropriate section of IBC 2016. The title of the Form INC-28 is “Notice of Order of the Court or Tribunal or any other competent authority”
Events under IBC 2016 for which Form INC -28 is to be filed
- Admission of Company into CIRP (Corporate Insolvency Resolution Process) under section 7 or section 9 or section 10 of IBC 2016.
- Replacement of IRP / RP under section 22(3) of IBC 2016.
- Approval of Resolution Plan under section 31 of IBC 2016.
- Order of Liquidation under section 33 of IBC 2016.
- Withdrawl order passed under section 12A of the IBC 2016.
- Dissolution under section 54 or section 59(8) of the IBC 2016.
- Any other order which is required to bring into the notice of RoC by virtue of the directions therein or otherwise.
Time Limit for filing the relevant order in Form INC-28
The Form INC-28 shall be filed either as stated in the relevant sections or as stated in the relevant court’s order. In case the section or Court order does not provide for the number of days within which the order is to be filed, then the form should be filed at the earliest.
How Form INC-28 will be processed?
The form will be processed by the office of the Registrar of Companies (Non-STP). When the Form is registered by the authority concerned, an acknowledgment of the same is sent to the user in the form of an email at the end of the day to the email id of the company.
Different status for the companies undergoing proceedings under IBC 2016
- The company going liquidation will show the status “Under Liquidation“ against the heading “Status under CIRP”.
- The company going into liquidation will show the status “Under Corporate Insolvency Resolution Process“ against the heading “Status under CIRP”.
The Master Data for change in the status of the company from “Active” / “lnactive” to Under CIRP/ Under Liquidation or from Under CIRP / Under Liquidation to “Active” shall be effected on the basis of the Formal Change Request Form submitted by IBBI to e-governance Cell, MCA(HQ). Since this function has been centralized, RoCs shall not raise and forward the Change Requirement Form (CRF) either to the e-gov cell or to the service provider for the above-mentioned purpose.
Some important facts and points with respect to filing of Form INC-28 for the companies undergoing proceedings under IBC 2016
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- Designation of the certifier in the Declaration Section shall be selected as “others” from the dropdown.
- Capacity field in the Declaration Section shall be filled as “Resolution Professional (CEO)” or “Liquidator (CEO)” as the case may be.
B2. Filing of Annual Compliance & Other Forms with the RoC
After filing Form INC-28, IRP / RP/ Liquidator would have to file other relevant forms for compliance with MCA in Form GNL-2.
Who is responsible for filing Annual Compliance Forms?
IRP/ RP/ Liquidator shall be responsible for filing all the eforms in the MCA portal and signing the form in the capacity of the CEO in order to meet the filing protocol in the architecture of the existing form. However, this shall in no way affect the legal status of IRP/ RP/ Liquidator.
How Annual Compliance Forms & Other Forms will be filed?
- All Forms including AOC-4 and MGT-7 shall be filed through Form GNL-2 by way of attachments till the company is under CIRP. In the existing field no.3 of Form GNL-2, IRP/ RP/ Liquidator will choose the radio button “Filings under IBC” and against the date of the event and Board Resolution in Form GNL-2, date of order of NCLT / NCLAT / Court may be mentioned.
- Separate Form(s) GNL-2 shall be filed for each form applicable.
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One time normal fee is to be paid for every such filing.