Short Note On Striking Off The Name Of The Company Under Companies Act, 2013
[Under Chapter 18 -section 248 to 252 of the Companies Act & rules there under ]
[Date of enforcement of section 248 to 252 and rules – 26th December, 2016]
Ways of Striking Off The Name Of The Company
1] By ROC itself-
A] ROC suo-motu remove the name of the Companies if —-
- a Company has failed to commence its business within one year of its incorporation or
- a Company is not carrying on any business for a period of 2 immediately preceding financial years & has not made application for obtaining a status of Dormant company u/s 455 of the Act.In the above case ROC will send a notice to the Company and all its Directors of his intention to remove the name of the Company from the Register & requesting them to send their representations within a period of 30 days of the notice. If reply to the notice is not received, Registrar will strike off the name of the Company from its Register.
B] ROC cannot take above action in case of following Companies:-
Ø Listed companies
Ø section 8 company
Ø if any prosecution is pending against the Company
Ø If Co. made application for compounding & it is in process
Ø Co. has not satisfied its charges
Ø Companies have outstanding public deposits
Ø investigation/Enquiry is ordered against the Company
Ø Dormant Co. u/s 455
2] BY THE COMPANY
Company [ other than section 8 company ] can make application for striking off of its name from the Register of Companies. Important points to be noted while making application are as follows :-
A] a Company has failed to commence its business within one year of its incorporation or
– a Company is not carrying on any business for a period of 2 immediately preceding financial years & has not made application for obtaining a status of Dormant company u/s 455 of the Act.
B] All liabilities of the Company should be extinguished.
C] Special resolution passed by members duly certified by each Director or consent of members [75% in terms of Paid up Capital] as on the date of making application should be obtained.
D] NOC from regulatory authority is required if such Company is also registered under any other regulation [ for ex- NBFC]
E] Co. should not changed its name of shifted its Registered office from one state to another at any time in the previous 3 months before making the application.
F] Register may on the basis of ‘Undertaking ‘ taken from the Company regarding discharge of any liabilities occurred after striking off of the Company, may strike off its name.
G] Application to be made in form STK-2 [ which is not yet available ] with the filing fee of Rs. 5000/-
H] Form should be accompanied by duly notarized Affidavit & indemnity bond by every Director.
I] Certified Statement of accounts not older than 30 days before making application to be taken from Chartered Accountant.
J] a statement regarding any pending litigation to be attached to the form
K] Registrar of Companies shall inform to all regulating authorities regulating the Company i.e Income tax, Sales tax, Excise, service tax about the proposed removal of name & seeks objection if any within 30 days . If no objection is received, then it is presumed that, such authorities have no objection.
Other Features
- Form STK-2 should be signed by such Director who is authorized by Board in this behalf. So Board resolution giving authority to make application is necessary.
- IF Director have no Digital signature- physical application duly signed by him should be attached to the form.
- Form required certification by Company Secretary.
- Notice of removal of name to be published in newspaper, MCA site, Company website if any and in official gazette by the Registrar of Companies.
- In case of Foreign national- affidavit/indemnity/declaration should be apostiled.
Compiled by
CS Manasi Paradkar