17 Feb Company Closure: A Comprehensive Guide
In the realm of corporate governance, the closure of a company, also known as “removal of name” or “strike off,” plays a significant role in maintaining regulatory compliance. Governed by the Companies Act, this process ensures that only active entities are listed within the corporate registry. This guide aims to delve into the intricacies of company closure, exploring the procedures, motivations, and ramifications in accordance with the latest provisions of the Companies Act.
Company closure, often referred to as removal of name or strike off, under the Companies Act 2013 entails the formal dissolution of a company’s legal existence. This process can either be initiated voluntarily by the company’s directors and shareholders or enforced by the Registrar of Companies (RoC) due to non-compliance.
In both scenarios, the company undergoes a structured procedure to meet legal obligations, settle liabilities, and adhere to regulatory standards before its name is officially removed from the register, signaling the termination of its operations.
Modes of Company Name Removal:
The Companies Act, 2013 delineates the provisions regarding the removal of a company’s name, primarily outlined in Section 248. According to this section, there are two principal methods through which a company’s name can be struck off from the Registrar of Companies:
Voluntary Strike-Off:
- Initiated by the company's directors and shareholders.
- Involves submitting an application (Form STK-2) to the Registrar of Companies (RoC) for voluntary removal of the company's name.
- Typically opted for by inactive companies or those that have achieved their objectives and no longer wish to operate.
Strike Off by RoC:
- Enforced by the Registrar of Companies for companies failing to fulfill legal and financial obligations.
- Implemented when a company fails to submit essential documents like financial statements or annual returns for an extended period.
- Ensures the accuracy and integrity of corporate registration.
Procedure for Voluntary Strike-Off:
The voluntary closure of a company under the Companies Act entails a series of steps:
- Board Meeting: Approval of company closure, extinguishing obligations, and authorization for strike-off petition to RoC.
- EGM Notice: Issuance of notice for Extraordinary General Meeting (EGM) to shareholders.
- EGM: Shareholder approval obtained through special resolution or 75% assent of paid-up share capital members.
- Filing Application to RoC: Submission of Form STK-2 signed by company directors.
- Director Declaration: Inclusion of director declaration in Form STK-2, verifying various aspects necessary for company removal.
- Certification: Verification of Form STK-2 by a certified whole-time practitioner (CA, CS, or Cost Accountant).
- Notice & Objection Publication: Publication of notice inviting objections, with Registrar may obtain liability discharge agreements.
- Company Dissolution: Removal of company name from ROC register upon absence of valid objections, with notification published in Official Gazette.
Requirements with Form STK-2:
- Copy of EGM Special Resolution or consent of 75% company members.
- Explanatory Statement of Notice.
- Indemnity Bond (Form STK-3) certified by two directors.
- Statement of Account (Form STK-8) presenting NIL Asset and NIL Liability.
- Board Resolution for company closure.
- Closure letter of bank account.
- NOC from company's registration regulators.
- STK-4 affidavits of two directors, along with identity and address evidence.
Director Declaration Details:
Directors declare several key points in Form STK-2, ensuring compliance with Companies Act obligations and resolution of company liabilities.
Ineligible Individuals under Section 248:
Section 249 specifies individuals ineligible to apply under Section 248, including those involved in certain activities within three months preceding the application, such as name change, property divestment, or activities not aligned with the Memorandum of Association.
Procedure for Strike Off by RoC:
The Registrar of Companies can initiate the strike-off process under specific conditions, including failure to commence business within one year of incorporation or no business operations for two consecutive financial years. The RoC notifies the company (via Form STK-1) to submit a representation within 30 days. Failure to do so results in a public notice (Form STK-5), and upon no objections, dissolution is published in the Official Gazette (Form E-STK-7).
Conclusion:
The closure of companies under the Companies Act underscores the importance of maintaining an accurate corporate registry. While facilitating the dissolution of inactive entities, thorough adherence to regulatory procedures is imperative to comprehend the process’s implications fully. Compliance with the Companies Act fosters transparency and regulatory integrity in the corporate landscape.
No Comments