BACKGROUND:Many professionals have been raising question on filing of unaudited financial statement with ROC in case of adjourned meeting or non holding of AGM:-
The Companies Act, 2013 mandate on Companies to file duly adopted financial statement with ROC within 30 days of date of Annual General Meeting (“here after called as AGM”). But in some situation it is not possible for the Companies to adopt financial statement in AGM.
Exp. Financial statements are not ready on the date of AGM therefore same may be approved at adjourned AGM.
Now the question is;
Whether Companies require to file unaudited financial statement with ROC in case of audited financial statement are not ready on the date of AGM or not adopted in AGM?
Let’s discuss the issue
Some people hold a view that there is no need to file unaudited/ provisional financial statement with the Company. One of the arguments put forth by the people supporting the first school of thought is that if Company is adjourned the AGM due to non adoption of financial statement such financial statement will be file only after adoption of AGM.
Statutory Provisions Contained Under the Act:
Provisions of the Companies Act, 2013 to the extent relevant for our discussion, are stated as under (with necessary comments and modifications, wherever felt necessary).
As stated in Section 137(1)
A copy of the financial statements, including consolidated financial statement, if any, along with all the documents which are required to be or attached to such financial statements under this Act, duly adopted at the annual general meeting of the company, shall be filed with the Registrar within thirty days of the date of annual general meeting in such manner, with such fees or additional fees as may be prescribed within the time specified under section 403: [Form AOC-4].
Provided that where the financial statements under sub-section (1) are not adopted at annual general meeting or adjourned annual general meeting, such Unadopted financial statements along with the required documents under sub-section (1) shall be filed with the Registrar within thirty days of the date of annual general meeting and the Registrar shall take them in his records as provisional till the financial statements are filed with him after their adoption in the adjourned annual general meeting for that purpose:
Provided further that financial statements adopted in the adjourned annual general meeting shall be filed with the Registrar within thirty days of the date of such adjourned annual general meeting with such fees or such additional fees as may be prescribed within the time specified under section 403:
Therefore, as per the language of section 137 discuss about the filing of financial statement with ROC. Even section states about filing of unaudited financial statement also.
As per first proviso of Section 137(1) if financial statement not adopted in AGM or adjourned AGM due to any reason. Such Company meanwhile can file the un-audited financial statement as provisional statement within 30 days of date when AGM required being hold or held. Even as per second proviso company required to file audited/ adopted financial statement within 30 days, once such financial statement adopted by the AGM or adjourned AGM. Until Company doesn’t file adopted financial statement company will registrar unaudited financial statement as provisional.
As per point 4(b)(i) of e-form AOC-4 Company has to select from the following options:
- Provisional un-adopted financial statements
- Adopted financial statements
- Revised financial statements u/s 130
- Revised financial statements u/s 131
Hence, considering the provisions of Section 137(1) one can opine that every company must file the annual accounts with the Registrar within thirty days of the annual general meeting irrespective of whether the annual general meeting is held or not or whether the annual accounts are adopted or not.
Thus, here opine that the Company have to file un-audited/provisional financial statement within 30 days of AGM and have to file audited financial statement once such statement is approved by the shareholders in the adjourned AGM.
Any other opinion is also welcome for further clarity of the provision of the Companies Act.
(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at email@example.com)