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Whether MGT-9 required to attach with Directors Report?

Summary:

Many professionals have asked one question i.e. “Whether MGT-9 is required to be preparing for F.Y. 2019-20 or not”.

Old Provisions:

As per CA, 2013 section 134, Companies were required to prepare MGT-9 extract of Annual Return and such MGT-9 was required to file with Directors Report.

This provision has been amended by CAA, 2017 w.e.f. 31.7.2018 i.e. as per notification dated 31st July 2017 provision in relation to MGT-9 has been removed from Section 134 and a new provision I added i.e.

“the web address, if any, where annual return referred to in sub-section (3) of section 92 has been placed”.

 

Section 92(3)

‘An extract of the annual return in such form as may be prescribed shall form part of the Board’s report’

 

Amended Section 92(3)

‘Every company shall place a copy of the annual return on the website of the company if any, and the web-link of such annual return shall be disclosed in the Board’s report’ [YET TO BE NOTIFIED]

 

MINISTRY OF CORPORATE AFFAIRS

NOTIFICATION

New Delhi, the 31st July 2018

S.O. 3838(E).—In exercise of the powers conferred by sub-section (2) of section 1 of the Companies (Amendment) Act, 2017 (1 of 2018), the Central Government hereby appoints the day of 31st July, 2018 as the date on which the provisions of Section 36 of the said Act shall come into force.

 

[F. No. 1 /1 /2018-CL.I]

K.V.R. MURTY, Jt. Secy.

 

Recent Amendment:

As per amendment dated August 28, 2020 after Sub rule (1) of Rule 12 o Companies (Management and Administration) Amendment Rules, 2020 the following proviso shall be added:

“Provided that a Company shall not be required to attach extract of the annual return with the  Board’s Report in Form MGT-9, in case the web link of such annual return has been disclosed in the Board’s Report in accordance with sub-section (3) of Section 92 of the Companies Act, 2013.”

 

Point of Discussion:

  1. Which Companies need to attach MGT-9 with Directors Report for F.Y. ending 31.03.2020?
  2. Whether Companies are required to publish Annual Returns on their Website?
  3. Practically annual Return prepare after AGM and Directors’ Report prepare before AGM. Therefore, how to publish give the link of publication of MGT-7 in Directors Report?

Question- I: Which Companies need to attach MGT-9 with Directors Report for F.Y. ending 31.03.2020?

As per Notification dated 28.08.2020, “All the Companies not having Website” are required to attach MGT-9 with Directors Report for F.Y. ended 31.03.2020 and onwards.

Question – II: Whether Companies are required to publish Annual Return or MGT-9 on its Website?

As per the combined reading of Section 134 (3) read with amended Section 92(3) read with the notification dated 28.08.2020, it is mentioned that copy of the annual return shall be published on the website of the Company.

As per rule 11, ‘Every company shall prepare its annual return in Form No. MGT-7’.

After combined reading above mentioned provisions one can opine that, if a Company having a website, such a Company has published its Annual return i.e. MGT-7 on the website of Company.

MGT-9 is an extract of Annual return and nowhere in section 92 or 134 mentioned the publication of MGT-9. Therefore, one can opine that Companies are not required to publish MGT-9 on their website.

Question – III: Practically annual Return prepare after AGM and Directors’ Report prepare before AGM. Therefore, how to publish and give a link of publication of MGT-7 in Directors Report?

As per CA, 2013 section 134, Companies are required to give in directors report the web address, if any, where annual return referred to in sub-section (3) of section 92 has been placed.

Note: –

  • Director’s report prepares in the Board Meeting held before AGM.
  • Director’s report circulated to Members of the Company along with notice of AGM.
  • Annual return prepared after holding of AGM. Because the company must show the presence of directors/ shareholders in AGM.

One school of thought: In such Case Company will give a link in its Directors Report, where MGT-7 Annual return of Company shall be published after AGM.

Conclusion:

After reading the provision of Companies Act, 2013 along with all amendments, it can be opined that MGT-9 applicable to all companies except companies that have published their annual return (MGT-7) on their website and given link of same in Directors Report.


Disclaimer: The entire contents of this document have been prepared based on relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided, I assume no responsibility, therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information.

IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION

DG TaxClue
CS Divesh Goyalhttp://csdiveshgoyal.in
CS Divesh Goyal is a Fellow member of ICSI, Practicing Company Secretary, and Steering Voice in the Corporate World. He is a Prop. at Goyal Divesh & Associates, Company Secretaries. He is a competent professional having enrich 6 years post qualification experience as Company Secretary with expertise in Corporate Law, FEMA, IBC, SEBI, RBI. He has written more than 600 editorials on Companies Act, 2013 to keep at pace with the latest changes and critically analyse the implications of various provisions of the Companies Act, 2013, Insolvency & Bankruptcy Code, 2016, FEMA, RBI, SEBI etc. He is a vibrant, sought after, and spellbinding speaker and has delivered more than 200 sessions on various aspects of Company Law at ICSI, ICAI, and online platforms. Apart from his passion for his work he also believes in elevating his profession and for that dream

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