Are Companies required to obtain immunity certificate for DPT-3 and other forms

There is a great confusion among the experts as for getting immunity certificate (documenting Form CFSS after first October) for Form DPT-3 and different Forms whose due date falling between 01st April, 2020 and 30th September, 2020 and recorded before 30th September, 2020. In this review, we examine and decipher the equivalent.

In the Month of March, 2020, MCA issued two circulars:

1. MCA CIRCULAR DATED 24TH MARCH, 2020

In this circular, MCA came with some special measures under Companies Act, 2013 and Limited Liability Partnership Act, 2008 in view of COVID-19 outbreak (hereinafter called "Circular 1").

The para 1 of the circular states that:

No additional fees shall be charged for late filing during a moratorium period from 01stApril 2020 to 30th September 2020, in respect of any document, return, statement etc., required to be filed in the MCA-21 Registry, irrespective of its due date, which will not only reduce the compliance burden, including financial burden of companies/ LLPs at large, but also enable long-standing noncompliant companies/ LLPs to make a 'fresh start'. The Circulars specifying detailed requirements in this regard are being issued separately.

This para has two aspects:

1. It clearly stated that if due date of any e-forms including e-form DPT-3, MSME-1, FORM-11, SH-7 and other forms falls during a moratorium period from 01st April 2020 to 30th September 2020, then no additional fees will be levied on the Company, if such forms filed by the Company before 30th September, 2020.
2. It also enables long-standing noncompliant Companies/ LLPs to make a 'fresh start'.

Interpretation of "The Circulars specifying detailed requirements in this regard are being issued separately":

After considering the above para, it can be interpreted as the circular specifying the detailed requirements would be needed only for the "Fresh Start", as there is nothing apart from this which would require any separate circular.

2. MCA CIRCULAR DATED 30TH MARCH, 2020

In this circular, MCA introduced "Companies Fresh Start Scheme, 2020" in furtherance of the MCA Circular 1 and in order to facilitate the companies registered in India to make a fresh start on a clean slate and to grant one-time opportunity for defaulting Companies whose returns, documents and forms are still pending to file in MCA Registry up to 31st March, 2020 (hereinafter called "Circular 2").

The Circular 2 are in furtherance of Circular 1 and does not have any overriding effect. The CFSS is only for long standing non-compliant Companies I.e. Defaulting Companies.

In this Scheme, MCA excluded certain forms i.e. CHG-1, CHG-4, CHG-8 CHG-9 and SH-7. But later for giving benefit to those charges whose creations and modifications were before 01.03.2020, it came up with "Scheme for relaxation of time for forms related to creation or modification of Charges under Companies Act, 2013" on 17.06.2020.

Key comparison between Circular 1 and Circular 2

Conclusion:

While going through all the above mentioned statements and explanations, it can be concluded that the CFSS scheme has been notified by the MCA with the motive to give an opportunity to long-standing defaulting companies to make all the pending compliances without levying any additional fees. On the other hand, the Circular 1 has its own objectives for providing easement to companies amid the COVID-19 Pandemic, which gives relaxations on levying additional fees on those forms whose due date falls between 01.04.2020 and 30.09.2020 without obtaining immunity certificate i.e. filing form CFSS after 30th September, 2020.