Winding Up CA Mayur Agrawal ALP Associates mayuralpassociates

Winding Up CA Mayur Agrawal ALP & Associates mayur@alpassociates. in +91 99033 49773 ALP

Modes of Dissolution of a Company By striking off name of Co. u/s 248 of Cos. Act Compulsory winding – up under IBC; Voluntary winding – up under IBC; By merger u/s 230 -240 of Cos. Act; Summary Proceedings for winding – up u/s 361; ALP Compulsory winding – up u/s 271 of Cos. Act

Striking Off u/s 248 By Registrar (ROC), if Company Ø failed to commence business within 1 year of its incorporation Ø not carrying on any business or operation for a period of 2 immediately preceding FYs Ø has not received Subscription money & Form INC 20 A not filled Ø not carrying on any business or operations, as ALP revealed after the physical verification under sec 12(9)

Striking Off u/s 248 By Company Ø after extinguishing all its liabilities Ø special resolution or consent of 75% members in terms of paid-up share capital Ø on all or any of the grounds specified in Sec 248(1) No application shall be filed unless it has filed AOC-4 and MGT-7 up to end of FY in which the ALP company ceased to carry its business operations

Compulsory winding – up under IBC Ø AA does not receive a Resolution Plan on or before the expiry of the maximum time permitted for CIRP Ø On rejection of Resolution Plan Ø COC decides to liquidate CD at any time during CIRP process, before confirmation of any Reso. Plan Ø CD contravenes the Reso. Plan approved by AA, & any other person being prejudicially affected applies against such contravention ALP

Voluntary winding – up under IBC Conditions to be fulfilled: Ø Not committed any default [Sec 3(12) of IBC] Ø Declaration of Solvency (Do. S) by majority of Directors Ø No intention to Defraud ALP

Voluntary winding – up under IBC BM for obtaining Do. S Receive Claims (Within 30 days of LCD) Submit Preliminary Report (Within 45 days of LCD) Submit final report to IBBI and ROC SR in GM (within 4 Weeks of Do. S) Public Announcement (Within 5 Days of LCD) Verify claims and prepare list (Within 30 days) Application to NCLT for dissolution Approval form 2/3 Creditors in value (Within 4 Days of SR) Intimation to ROC & IBBI (within 7 days of Creditors’ approval) Realize Assets and Distribute realization File order copy with ALP ROC Within 14 days of the Order

Summary Proceedings for winding – up u/s 361 Eligible Companies Ø Book value of assets not exceeding 1 Crore Ø Total outstanding deposits is not exceeding 25 lakh Ø total outstanding loan does not exceed 50 lakh Ø turnover is upto 50 crore Ø paid up capital does not exceed 1 crore ALP

Summary Proceedings for winding – up u/s 361 Application for summary procedure Order for summary procedure u/s 361 (1) by CG CG directs Investigation if any fraud OL to submit report to CG, including any fraud details (Within 30 Days) OL to take custody of all assets Send notice to debtors to pay within 30 OL to sell assets within days of notice 60 days from order OL invites all creditors to submit proof of claims File order copy with ROC CG passes dissolution order Appointment of Official Liquidator (OL) OL to submit final ALP report for passing dissolution order

Compulsory winding – up u/s 271 of Cos. Act Petition shall be presented by : Company • Must be accompanied by statement of affairs All or any contributor(s) • Shares must have been originally allotted or held by him for at least 6 months in the preceding 18 months Registrar • Other than in case of inability to pay debt Any person authorized by CG • After giving a chance of representation to the Company ALP

Compulsory winding – up u/s 271 of Cos. Act Petition for Winding-Up Ø WIN 1 in case of petition other than by company Ø WIN 2 in case of petition by company Petition must be verified by affidavit in WIN 3 Statements of Affairs (So. A) must be annexed along with in WIN 4 Ø Information not to be older than 30 days Ø Must be verified by an affidavit in WIN 5 ALP

Compulsory winding – up u/s 271 of Cos. Act Copy of petition to be furnished to every contributory within 24 hours of requisition Advertisement of petition in WIN 6 14 days before hearing Withdrawal of Petition - allowed only upon order of Tribunal including costs ALP

Compulsory winding – up u/s 271 of Cos. Act Liquidator Ø Company liquidator (CL) or Provisional Liquidator (PL) shall be an Insolvency Professional ØPowers of the PL may be restricted by way of an order of the Tribunal in WIN 8 ØCL / PL must file disclosure of conflict of interest within 7 days in WIN 10 Ø Notice of appointment of PL shall be given to the company in WIN 7 ALP Ø Notice of appointment must be made to the CL / PL within 7 days in WIN 9

Compulsory winding – up u/s 271 of Cos. Act Winding Up Order Ø Order for Winding up shall be in WIN 11 Ø Order shall be sent to CL in WIN 12 & Ro. C WIN 13 within 7 days Ø CL to issue public advertisement upon order WIN 14 Ø CL must file in a INC 28 copy of the Order with Ro. C ALP

Compulsory winding – up u/s 271 of Cos. Act Reports by CL Ø First Report of the CL (u/s 281) within 60 days of order in WIN 16 Ø Within 7 days of receipt of 1 st Report, Tribunal may fix a date for consideration Ø Quarterly reports to the Tribunal to be submited by CL u/s 288 ALP

Compulsory winding – up u/s 271 of Cos. Act Settlement of List of Contributories Ø CL shall prepare the list within 21 days of winding up order in WIN 17 Ø Date appointed for settlement by Tribunal must be notified to all contributories in WIN 18 Ø Final list is certified by the Tribunal upon hearing in WIN 20 Ø Notice of settled list must be given to all final Contributors in WIN 21 ØTribunal may add contributories to the list vide ALP Supplemental list

Compulsory winding – up u/s 271 of Cos. Act Settlement of List of Contributories Ø CL shall prepare the list within 21 days of winding up order in WIN 17 Ø Date appointed for settlement by Tribunal must be notified to all contributories in WIN 18 Ø Final list is certified by the Tribunal upon hearing in WIN 20 Ø Notice of settled list must be given to all final Contributors in WIN 21 ØTribunal may add contributories to the list vide ALP Supplemental list

Compulsory winding – up u/s 271 of Cos. Act Advisory Committee (AC) Ø Tribunal may direct for constitution of an AC having not more than 12 person Ø Determine member of committee with in 30 days of order in meeting all creditors & contributors Ø Result of the meeting to be reported within 7 days in WIN 23 Ø Meeting of AC as per need or on request of CL or 1/3 rd members & shall act on majority of members Ø Quorum 1/3 rd or 2 whichever is higher ALP

Compulsory winding – up u/s 271 of Cos. Act Meeting of creditors and contributors Ø Minimum 14 days’ notice in WIN 25 -29 Ø Where creditors/ contributors > 500, notice by way of newspaper advertisement also ØNotice may be given to officers of the Co. in WIN 30 ØProof of notice to be submitted in WIN 31 ØResolution to be passed by majority in value Present Ø Within 7 days of the meeting, CL to report the result to the Tribunal in WIN 34 ALP

Compulsory winding – up u/s 271 of Cos. Act Proxies in Relation to Meetings of Creditors And Contributories (Rule 66 -78) Registers & Books of Account to be Maintained by Company Liquidator (Rule 79 -80) Banking Account of Company Liquidator (Rule 81 -85) Investment of Surplus Funds (Rule 86 -90) Filing & Audit of CL's Account (Rule 91 -99) ALP

Compulsory winding – up u/s 271 of Cos. Act Sale by Company Liquidator Ø No asset/ property of the Co can be sold without prior permission of Tribunal Ø Sale must be done by an agent/ auctioneer Ø Must be done by public auction or By inviting sealed tenders or Electronic mode Ø Expenses of sale paid by the liquidator shall be reimbursed ALP

Compulsory winding – up u/s 271 of Cos. Act Termination of winding up Ø When all affairs have been fully wound up CL shall filed application for dissolution Ø Within 10 days along with audited financial accounts auditor’s certificate ØUpon application, Tribunal in consideration pass order of dissolution Ø CL to pay the balance into Company Liquidation Dividend and Undistributed Assets Account ALP ØConclusion of winding up on order reported to the Ro. C

List of Forms Form No. Description WIN-1 Petition for Winding up other than Company WIN-2 Petition for Winding up by Company WIN-3 Affidavit verifying Petition WIN-4 Statement of Affairs WIN-5 Affidavit of concurrence in statement of affairs WIN-6 Advertisement of Petition WIN-7 Notice of application for appointment of provisional liquidator WIN-8 Order appointing provisional liquidator WIN-9 Notice of appointment of provisional liquidator WIN-10 Disclosure of conflict of interest by liquidator WIN-11 Winding-up Order WIN-12 Notice to Company Liquidator of winding up WIN-13 Notice to registrar for winding up WIN-14 Notice of winding up order Application for leave to commence or continue any suit or proceeding under section 279(1) of the Companies Act, 2013 WIN-15 ALP

List of Forms Form No. Description WIN-16 Report of the Company Liquidator under section 281(1) WIN-17 Provisional list of contributories WIN-18 Notice to contributory of date fixed to settle list of contributories Affidavit as to the posting of notices fixrng a date for the settlement of the list of contributories List of contributories as settled by Tribunal Notice to contributory of final settlement of list of contributories and that his name is included Affidavit of service of notice on contributory Report of result of meeting of creditors and contributories under section 287(3) Notice to creditors and contributories Notice of meetings of creditors and contributories under section 287(3) Notice of creditors' meeting under section 287(5) of the Companies Act, 2013 ALP Notice of contributories' meeting under section 287(5) of the Companies Act, 2013 WIN-19 WIN-20 WIN-21 WIN-22 WIN-23 WIN-24 WIN-25 WIN-26 WIN-27

List of Forms Form No. Description WIN-28 Notice of Meeting (General Form) WIN-29 Notice of meeting (General Form) Notice to officers of company to attend meeting of creditors or contributories WIN-30 WIN-31 Affidavit as to the posting of notices of meeting WIN-32 Nomination of Chairman by Company Liquidator WIN-33 WIN-34 List of creditors (or contributories) present at a meeting Report of result of meeting(s) of creditors/ contributories held under order of Tribunal dated WIN-35 Form of general proxy WIN-36 WIN-37 Form of special proxy Quarterly Report with respect to progress of winding up under section WIN-38 Declaration disclosing conflict of interest or lack of independence WIN-39 Instructions regarding the preparation of the Statement of Account ALP WIN-40 Affidavit verifying account WIN-41 Company Liquidator's Final Account

List of Forms Form No. Description WIN-42 Requisition for audit of account WIN-43 Advertisement of notice to creditors to prove their claim WIN-44 Affidavit of proof of debt WIN-45 WIN-47 Proof of debt of workmen Notice to a creditor to attend the investigation or produce further evidence Notice of rejection of proof of debt WIN-48 Notice of admission of proof WIN-49 WIN-52 Appeal by creditor Certified list of proofs tendered to, and admitted or rejected by, the Company Liquidator Notice by Company Liquidator requiring payment of money or delivery of property, books, etc. , to the Company Liquidator Leave to make call WIN-53 Affidavit in support of application for leave to make a call WIN-54 Advertisement of application for leave to make a call WIN-55 Order giving leave to make a call WIN-46 WIN-50 WIN-51 ALP

List of Forms Form No. Description WIN-56 Document making a call WIN-57 Notice to be served with order sanctioning call WIN-58 Application to enforce call WIN-59 Affidavit in support of application for payment of call WIN-60 Order for payment of call amount due from contributory WIN-61 Application for leave to examine person(s) under section 299 WIN-62 Order for examination under section 299 WIN-63 Summons to witness for examination under section 299 WIN-64 Order directing examination WIN-65 Notice of examination WIN-66 Notice to attend examination Report to the Tribunal where person examined refuses to answer to satisfaction of the person or authority referred to in rule 147 Warrant against contributory who fails to attend examination ALP WIN-67 WIN-68 WIN-69 WIN-70 Warrant for keeping in prison Order to release prisoner on bail

List of Forms Form No. WIN-72 Description Requisition to Court in whose jurisdiction the contributory against whom a warrant of arrest has been issued is believed to be Summons under section 339(1) of the Companies Act, 2013 WIN-73 Summons under section 340(1) of the Companies Act, 2013 WIN-74 Points of claim under section 339(1) of the Companies Act, 2013 WIN-75 Points of claim under section 340(1) of the Companies Act, 2013 WIN-76 WIN-79 Notice to Liquidator to elect whether he will disclaim Notice by Liquidator of intention to apply to Tribunal for leave to disclaim Summons for extension of time for giving notice of intention to apply for leave to disclaim Order extending time for disclaimer WIN-80 Notice of interest in property sought to be disclaimed WIN-81 Application for leave to disclaim WIN-82 Affidavit in support of summons for leave to disclaim a lease ALP Notice to parties interested in the property in respect of which the application to disclaim is made WIN-71 WIN-77 WIN-78 WIN-83

List of Forms Form No. Description WIN-85 Disclaimer of lease WIN-86 WIN-88 Notice of disclaimer of lease Order requiring parties interested in disclaimed lease to apply for vesting order or to be excluded from all interest in the leasehold premises Order vesting lease and excluding persons who have not elected WIN-89 Advertisement as to declaration of dividend WIN-90 Notice of dividend WIN-91 Authority to Company Liquidator to pay dividend to another person WIN-92 Schedule of Contributors to whom contribution is to be paid WIN-93 Notice of return to contributories WIN-94 Statement of unclaimed dividends or undistributed assets, WIN-95 Request to deliver bill WIN-87 ALP

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