Sunday, December 25, 2016
Companies (Transfer of Pending Proceedings) Rules, 2016.
- Short title and Commencement. – (1) These rules may be called the Companies (Transfer of Pending Proceedings) Rules, 2016.
(2) They shall come into force with effect from the 15th December, 2016, except rule 4, which shall come into force from 1st April, 2017.
- Definitions.- (1) In these rules, unless the context otherwise requires-
(a) “Code” means the Insolvency and Bankruptcy Code, 2016 (31 of 2016);`
(b) “Tribunal” means the National Company Law Tribunal constituted under section 408 of the Companies Act, 2013.
(2) Words and expressions used in these rules and not defined, but defined in the Companies Act, 1956 (1 of 1956) (herein referred to as the Act), the Companies Act, 2013 (18 of 2013) or the Companies (Court) Rules, 1959 or the Code shall have the meanings respectively assigned to them in the respective Act or rules or the Code, as the case may be.
- Transfer of pending proceedings relating to cases other than Winding up.—All proceedings under the Act, including proceedings relating to arbitration, compromise, arrangements and reconstruction, other than proceedings relating to winding up on the date of coming into force of these rules shall stand transferred to the Benches of the Tribunal exercising respective territorial jurisdiction:
Provided that all those proceedings which are reserved for orders for allowing or otherwise of such proceedings shall not be transferred.
- Pending proceeding relating to Voluntary Winding up: All applications and petitions relating to voluntary winding up of companies pending before a High Court on the date of commencement of this rule, shall continue with and dealt with by the High Court in accordance with provisions of the Act.
- Transfer of pending proceedings of Winding up on the ground of inability to pay debts.—(1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Code, as the case may be, and dealt with in accordance with Part II of the Code:
Provided that the petitioner shall submit all information, other than information forming part of the records
transferred in accordance with Rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate.
(2) All cases where opinion has been forwarded by Board for Industrial and Financial Reconstruction, for winding up of a company to a High Court and where no appeal is pending, the proceedings for winding up initiated under the Act, pursuant to section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall continue to be dealt with by such High Court in accordance with the provisions of the Act.
- Transfer of pending proceedings of Winding up matters on the grounds other than inability to pay debts.—All petitions filed under clauses (a) and (f) of section 433 of the Companies Act, 1956 pending before a High Court and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal exercising territorial jurisdiction and such petitions shall be treated as petitions under the provisions of the Companies Act, 2013 (18 of 2013).
- Transfer of Records.—Pursuant to the transfer of cases as per these rules the relevant records shall also be transferred by the respective High Courts to the National Company Law Tribunal Benches having jurisdiction forthwith over the cases so transferred.
- Fees not to be paid.—Notwithstanding anything contained in the National Company Law Tribunal Rules, 2016, no fee shall be payable in respect of any proceedings transferred to the Tribunal in accordance with these rules.
Thursday, December 22, 2016
DIN and DPIN with Practical Examples
Director Identification Number
Legal Framework
The Companies Act, 2013 – Section 153 to 159
Companies (Appointment and Qualification of Directors) Rules, 2014.
Rule 2(d)
“Director Identification Number” (DIN) means an identification number allotted by the Central Government to any individual, intending to be appointed as director or to any existing director of a company, for the purpose of his identification as a director of a company:
Provided that the Director Identification Number (DIN) obtained by the individuals prior to the notification of these rules shall be the DIN for the purpose of the Companies Act, 2013:
Provided further that “Director Identification Number” (DIN) includes the Designated Partnership Identification Number (DPIN) issued under section 7 of the Limited Liability Partnership Act, 2008 (6 of 2009) and rules made thereunder;
Application for allotment of Director Identification Number (Section 153 + Rule 9)
(1) Every individual, who is to be appointed as director of a company shall make an application electronically in Form DIR-3, to the Central Government for the allotment of a Director Identification Number (DIN) along with such fees as provided in the Companies (Registration Offices and Fees) Rules, 2014.
(2) The Central Government shall provide an electronic system to facilitate submission of application for the allotment of DIN through the portal on the website of the Ministry of Corporate Affairs.
(3) (a) The applicant shall download Form DIR-3 from the portal, fill in the required particulars sought therein and sign the form and after attaching copies of the following documents, scan and file the entire set of documents electronically-
photograph;proof of identity;proof of residence;verification by the applicant for applying for allotment of DIN in Form DIR-4;specimen signature duly verified.(b) Form DIR-3 shall be signed and submitted electronically by the applicant using his or her own Digital Signature Certificate and shall be verified digitally by –a chartered accountant in practice or a company secretary in practice or a cost accountant in practice; ora company secretary in full time employment of the company or by the managing director or director of the company in which the applicant is to be appointed as director.
Procedure for allotment of DIN (Section 154 read with Rule 10)
(1) On the submission of the Form DIR-3 on the portal and payment of the requisite amount of fees through online mode the provisional DIN shall be generated by the system automatically which shall not be utilized till the DIN is confirmed by the Central Government.
(2) After generation of the provisional DIN, the Central Government shall process the applications received for allotment of DIN under sub-rule (2) of rule 9, decide on the approval or rejection thereof and communicate the same to the applicant along with the DIN allotted in case of approval by way of a letter by post or electronically or in any other mode, within a period of one month from the receipt of such application.
(3) If the Central Government, on examination, finds such application to be defective or incomplete in any respect, it shall give intimation of such defect or incompleteness, by placing it on the website and by email to the applicant who has filed such application, directing the applicant to rectify such defects or incompleteness by resubmitting the application within a period of fifteen days of such placing on the website and email:
Provided that the Central Government shall –
reject the application and direct the applicant to file fresh application with complete and correct information, where the defect has been rectified partially or the information given is still found to be defective;treat and label such application as invalid in the electronic record in case the defects are not removed within the given time; andinform the applicant either by way of letter by post or electronically or in any other mode.
(4) In case of rejection or invalidation of application, the provisional DIN so allotted by the system shall get lapsed automatically and the fee so paid with the application shall neither be refunded nor adjusted with any other application.
(5) All Director Identification Numbers allotted to individual(s) by the Central Government before the commencement of these rules shall be deemed to have been allotted to them under these rules.
(6) The Director Identification Number so allotted under these rules is valid for the life-time of the applicant and shall not be allotted to any other person.
Cancellation or surrender or Deactivation of DIN – Rule – 11
The Central Government or Regional Director (Northern Region), Noida or any officer authorised by the Regional Director may, upon being satisfied on verification of particulars or documentary proof attached with the application received from any person, cancel or deactivate the DIN in case –
the DIN is found to be duplicated in respect of the same person provided the data related to both the DIN shall be merged with the validly retained number;the DIN was obtained in a wrongful manner or by fraudulent means;of the death of the concerned individual;the concerned individual has been declared as a person of unsound mind by a competent Court;if the concerned individual has been adjudicated an insolvent:Provided that before cancellation or deactivation of DIN pursuant to clause (b), an opportunity of being heard shall be given to the concerned individual;on an application made in Form DIR-5 by the DIN holder to surrender his or her DIN along with declaration that he has never been appointed as director in any company and the said DIN has never been used for filing of any document with any authority, the Central Government may deactivate such DIN. Provided that before deactivation of any DIN in such case, the Central Government shall verify e-records.
Explanation.- For the purposes of clause (b) –
(i) the term “wrongful manner” means if the DIN is obtained on the strength of documents which are not legally valid or incomplete documents are furnished or on suppression of material information or on the basis of wrong certification or by making misleading or false information or by misrepresentation;
(ii) the term “fraudulent means” means if the DIN is obtained with an intent to deceive any other person or any authority including the Central Government.
Intimation of changes in particulars specified in DIN application – (Rule 12)
Every individual who has been allotted a Director Identification Number under these rules shall, in the event of any change in his particulars as stated in Form DIR-3, intimate such change(s) to the Central Government within a period of thirty days of such change(s) in Form DIR-6 in the following manner, namely;-(i). the applicant shall download Form DIR-6 from the portal and fill in the relevant changes, attach copy of the proof of the changed particulars and verification in the Form DIR-7 all of which shall be scanned and submitted electronically;(ii). the form shall be digitally signed by a chartered accountant in practice or a company secretary in practice or a cost accountant in practice; 16(iii). the applicant shall submit the Form DIR-6;The Central Government, upon being satisfied, after verification of such changed particulars from the enclosed proofs, shall incorporate the said changes and inform the applicant by way of a letter by post or electronically or in any other mode confirming the effect of such change in the electronic database maintained by the Ministry.The DIN cell of the Ministry shall also intimate the change(s) in the particulars of the director submitted to it in Form DIR-6 to the concerned Registrar(s) under whose jurisdiction the registered office of the company(s) in which such individual is a director is situated.The concerned individual shall also intimate the change(s) in his particulars to the company or companies in which he is a director within fifteen days of such change.
Prohibition to obtain more than one DIN (Section – 155)
No individual shall apply for/obtain/ possess another Director Identification Number who has already been allotted a Director Identification Number under section 154.
Director to intimate DIN (Section – 156)
Every existing director shall, within 1 month of the receipt of DIN from the Central Government, intimate his DIN to the company or all companies wherein he is a director.
Company to intimate DIN to ROC – (Section – 157)
Every company shall, within fifteen days of the receipt of intimation under section 156, furnish the DIN of all its directors to the Registrar/authorised office by the Central Government. Every such intimation shall be furnished in such form and manner as may be prescribed.If a company fails to furnish Director Identification Number under section 157 (1), before the expiry of the 270 days period from the date by which it should have been furnished with additional fee, the company shall be punishable with fine which shall not be less than Rs. 25,000 but which may extend to Rs. 1,00,000 and every officer of the company who is in default shall be punishable with fine which shall not be less than Rs. 25,000 but which may extend to Rs. 1,00,000.
Obligation to indicate DIN – (Section – 158)
Every person or company shall mention the DIN in return, information or particulars as required to be furnished under this act, in case such return etc. relate to the director or contain any reference of any director.
Punishment for contravention – (Section – 159)
If any individual or director of a company, contravenes any of the provisions of section 152, section 155 and section 156, such individual or director of the company shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 50,000 and where the contravention is a continuing one, with a further fine which may extend to Rs. 500 for every day after the first during which the contravention continues.
Integration of DPIN and DIN
Any person, who desires to become a designated partner in a Limited Liability Partnership, now has to obtain DIN by filing e-form DIR-3. If a person has been allotted DIN, the said DIN shall also be used as DPIN for all purposes under Limited Liability Partnership Act, 2008. If a person has been allotted DPIN, the said DPIN will also be used as DIN for all the purposes under Companies Act, 2013 and the previous Act. If a person has been allotted both DIN and DPIN, his DPIN will stand cancelled and his DIN will be used as DIN as well as DPIN for all purposes under Limited Liability Partnership Act, 2008 and Companies Act, 2013. Every designated partner, shall intimate his consent to become a designated partner to the limited liability partnership and DPIN, in Form 9 and the LLP shall intimate such DPIN to Registrar in Form 4.
Q. Mohan, a director in Agile Ltd. holding director’s identification number (DIN) allotted by the Central Government has now accepted directorship in two other public companies and three private companies. Referring to the provisions of the Companies Act, 2013, answer the following :
(i) Whether he is required to obtain DIN for each of the companies in which he has been appointed as director ?
(ii) After obtaining DIN, there are some changes in the particulars of Mohan. What procedure would you follow to get the changes incorporated in the DIN already allotted to Mohan? (Dec, 15(F) – 4 marks)
Ans. (i) As per section 155 of Companies Act, 2013, no individual shall apply for/obtain/ possess another Director Identification Number who has already been allotted a Director Identification Number under section 154. So Mohan is not required to obtain any new DIN for becoming director in any other company.
(ii) Procedure to be followed for changes in DIN (Rule 12 of Companies (Appointment and Qualification of Directors) Rules, 2014
Every individual who has been allotted a Director Identification Number under these rules shall, in the event of any change in his particulars as stated in Form DIR-3, intimate such change(s) to the Central Government within a period of thirty days of such change(s) in Form DIR-6 in the following manner, namely;-the applicant shall download Form DIR-6 from the portal and fill in the relevant changes, attach copy of the proof of the changed particulars and verification in the Form DIR-7 all of which shall be scanned and submitted electronically;the form shall be digitally signed by a chartered accountant in practice or a company secretary in practice or a cost accountant in practice; 16the applicant shall submit the Form DIR-6;
Q. ABC Ltd. appointed Anil as director on 1st November, 2014. Subsequently, Anil obtained his DIN on 10th November, 2014. ABC Ltd. filed DIR-12 on 15th November, 2014.
Examine the legal validity of the appointment of Anil. (June, 15(F) – 4 marks)
Ans. As per section 152(3), no person shall be appointed as a director of a company unless he has been allotted the DIN. Further as per section 152(4) every person proposed to be appointed as a director by the company shall furnish his DIN and a declaration that he is not disqualified to become a director.
Any individual who intends to be a director of a company will have to mandatorily apply for DIN first. In the given case , Anil is appointed as a director on 1st November, 2014 when he was not having DIN. So his appointment is void.
Q. Your company is contemplating appointment of Biswas as a director and he is not a director in any other company. As the Company Secretary, advise Biswas as to the need for obtaining a Director Identification Number (DIN). (Dec, 07 (F) – 4 marks)
Ans. As per section 152(3), no person shall be appointed as a director of a company unless he has been allotted the DIN. Further as per section 152(4) every person proposed to be appointed as a director by the company shall furnish his DIN and a declaration that he is not disqualified to become a director.
So to become director in a company, Biswas must have a DIN first.
To apply for DIN, he has to comply with Section 153 and Rule 9 of Companies (Appointment and Qualification of Directors) Rules, 2014.
So he has to follow the following procedure to apply for DIN.
a) Make an application electronically in Form DIR-3, to the Central Government for the allotment of a Director Identification Number (DIN) along with such fees as provided in the Companies (Registration Offices and Fees) Rules, 2014
b) Download Form DIR-3 from the portal, fill in the required particulars sought therein and sign the form and after attaching copies of the following documents, scan and file the entire set of documents electronically-
photograph;proof of identity;proof of residence;verification by the applicant for applying for allotment of DIN in Form DIR-4;specimen signature duly verified.Form DIR-3 shall be signed and submitted electronically by the applicant using his or her own
c) Digital Signature Certificate and shall be verified digitally by –
a chartered accountant in practice or a company secretary in practice or a cost accountant in practice; ora company secretary in full time employment of the company or by the managing director or director of the company in which the applicant is to be appointed as director.
Q. A director of 10 companies will require _1____ number(s) of DIN.
Q. Answer the following citing the relevant provisions of law/case law, if any;
A foreign national was intended to be appointed to the board of an MNC in India. He contends that, DIN is not required for him as he is a foreign national. Whether his contention is valid?
Ans. As per Section 153 of Companies Act, 2013, every individual, who is to be appointed as director of a company shall make an application electronically in Form DIR-3, to the Central Government for the allotment of a Director Identification Number (DIN) along with such fees as provided in the Companies (Registration Offices and Fees) Rules, 2014.
It is also mandatory for the directors of Indian companies who are not citizens of India. But, DIN is not mandatory for directors of foreign company having a branch office in India.
So in conclusion, to become a director in an Indian Company , an Individual is required to have DIN whether he is Indian Citizen or foreign National. But there is no requirement of DIN for becoming director in Foreign Company.
Author
Jagdeep Arora
B.Com,CA,CS & CMA
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