S.J. Mukhopadhaya JUDGMENT
S.J. Mukhopadhaya, J. (Chairperson)
1. This appeal has been preferred by Appellants under Section 421 of the Companies Act, 2013 against impugned order dated 7th March, 2017 passed by the National Company Law Tribunal (hereinafter referred to as Tribunal), New Delhi Bench, New Delhi in Company Petition No. 16/147/2016.
2. The Appellants failed to file its Annual Return for the financial year ended 31st March 2013 within 60 days of holding the Annual General Meeting resulting in non-compliance of statutory requirement under Section(s) 92, 137, 96 and 129 of the Companies Act, 2013.
3. In view of the alleged failure, as penal action under section 92(5), 137(3), 99 and 129(7) of the Companies Act, 2013 were attracted, the Appellants preferred an application under Section 441 of the Companies Act, 2013 for compounding the offences.
4. The Tribunal dismissed the application by impugned order dated 7th March 2017 with following observation and direction:-
"3. The provisions of Companies Act, 2013 mandate that offence which is punishable with imprisonment even in the alternative of fine, should be dealt with by the Special Court constituted for violation of the Companies Act. This application is therefore being returned to the applicant to file it before the proper forum i.e., in the Special Court constituted at Dwarka, New Delhi which is the Court of ASJ-3.
4. The RoC may be intimated to file their report in the concerned Court."
5. One of the ground taken by the Appellants to assail the impugned order is that no case is pending against the company or its officers before any Special Judge for punishment under any of the provisions as referred to above or for alleged violation of any provision of the Companies Act.
6. The question involved in this appeal is whether the Tribunal had jurisdiction to compound the offences under Section 441 for the alleged violation of Section(s) 92, 137, 96 and 129 of the Companies Act, 2013.
For violation of Section 92 of the Act the penalty is prescribed under sub-section (5) of Section 92 as quoted below:-
"92. Annual Return - (1) Every company shall prepare a return (hereinafter referred to as the annual return) in the prescribed form containing the particulars as they stood on the close of the financial year regarding--
(a)
to
(k)
(4) Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held............
(5) If a company fails to file its annual return under sub-section (4), before the expiry of the period specified under section 403 with additional fees, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both."
7. From the aforesaid sub-section (5), it is clear that while the company is punishable with fine of not less than fifty thousand rupees which may extend to five lakh rupees, every officer of the company who is in default is "punishable with 'imprisonment' for a term which may extend to 6 months or fine which shall not be le........