[2020]

115 taxmann.com 296 (Article)

[2020] 115 taxmann.com 296 (Article)

Date of Publishing: March 13, 2020

Reduction of Share Capital / E-filing / FAQs

KAVITA D. SHAH
CS

The National Company Law Tribunal (NCLT) made mandatory to file

the application/petition/appeal/reply etc. online through NCLT e-filing
portal via notice dated 31st January 2020, w.e.f. 03rd February 2020.
And has also requested to file two complete sets in hard copies before
the filing counter NCLT.

The Company need to make an application to the NCLT for reduction of

share capital.

In layman language, reduction of share capital means the reduction of

issued, subscribed and paid up share capital of the Company and it
governed by the section 66 of the Companies Act 2013.

There are the number of reasons why the company want to reduce its
share capital : Reduce liability, reduce heave capital expenses , to
eliminate the losses, to return the surplus capital , etc.

Modes for reduction of share capital are :-

1. extinguish or reduce the liability on any of its shares in

 respect of the share capital not paid-up (Example : If the share
is of face value of Rs 10 each of which Rs 8 has been paid, the
company reduce them to Rs 8 fully paid up shares and thus
reduce the liability of shareholders on uncalled capital of Rs 2
per share)
2. cancel any paid-up share capital which is lost or is
unrepresented by available assets (Example : If the share is of
face value of Rs 10 each fully paid up is represented by the Rs
8 worth of assets, then reduction of capital may be done by
cancelling Rs 2 per share and writing off similar amount of
assets).
3. pay off any paid-up share capital which is in excess of the
wants of the company (Example: The share is of face value of
Rs 10 each fully paid up can be reduced to face value of Rs 8
each by paying back Rs. 2 each per share).
Conditions :

1. Article of Association of the Company should have power for

reduction of share capital.
2. no such reduction shall be made if the company is in arrears in
the repayment of any deposits accepted by it, or the interest
payable.
Process COMPLIANCE
for
Reduction
of
Share
Capital
STEPS

Step 1 Check whether the Article of Association has a power for
reduction of capital
Step 2 Prepare the draft the Scheme of reduction of capital
Step 3 Convey the Board Meeting for approval the draft scheme
and to approve the notice of EGM
Step 4 Hold the EGM and shareholders shall approve the draft
scheme by way of special resolution.
 File MGT-14 with ROC, within 30 days of passing SR

Step 5 Filing an online application of reduction of capital with

NCLT
Application / Petition shall be accompanied with following
documents :

- Synopsis of the Application / petition

- List of Events
- Petition for Reduction of Share Capital
- Certificate of Incorporation
- Memorandum of Association
- Articles of Association
- Copies of Financial Statements of the Company
for last 3 preceding financial years.
- Scheme of Reduction
- Shareholding Pattern
- Resolutions Passed
- Valuation Report
- Certificate issued by the Auditors in respect of
Creditors
- Certificate issued by the Auditors in respect of the
Accounting Treatment
- Certificate issued by the Auditors in respect of the
outstanding Deposits
- Declaration from the Company in respect of the
outstanding Deposits
- General Affidavit
- Memorandum of Appearance

Step 6 File two complete sets in hard copies before the filing
counter NCLT
Step 7 The Tribunal shall, within fifteen days of submission of the
application give notice, or direct that notice be given to -

(i) the Central Government, Registrar of Companies,

 in all cases, in Form No. RSC-2;
(ii) the Securities and Exchange Board of India, in the
case of listed companies in Form No. RSC-2;
(iii) the creditors of the company, in all cases in Form
No. RSC-3;

Step 8 Notice to Creditors

Once the notice has been issued to creditors than within

seven days of the direction given such other period as may
be directed by the Tribunal, to each creditor whose name
is entered in the list of creditors submitted by the company
about the presentation of the application and of the said
list, stating the amount of the proposed reduction of share
capital and the amount or estimated value of the debt or
the contingent debt or claim or both for which such
creditor's name is entered in the said list, and the time
within which the creditor may send his representations
and objections.

Step 9 Publication of Notice

The NCLT shall give direction for the notice to be

published in Form No. RSC-4 within seven days from the
date on which the directions are given, in English
language in a leading English newspaper and in a leading
vernacular language newspaper, both having wide
circulation in the State in which the registered office of the
company is situated, or such newspapers as may be
directed by the Tribunal and for uploading on the website
of the company (if any) seeking objections from the
creditors and intimating about the date of hearing.

Step 10 Confirmation of Publication of Notice

The company or the person who was directed to issue

notices and the publication in the newspaper as soon as
may be, but not later than seven days from the date of
issue of such notices, file an affidavit in Form No. RSC- 5
confirming the dispatch and publication of the notice.
Step 11 Representation by Regulatory

Representation by the CG / Registrar , Creditors and SEBI

shall be sent to tribunal within three months from the date
of receipt of notice and copy of such representation shall
simultaneously be sent to the company and in case no
representation has been received within the said period by
the Tribunal it shall be presumed that they have no
objection to the reduction

Step 12 Submission of Representation

The company shall submit to the Tribunal, within seven

days of expiry of period up to which representations or
objections were sought, the representations or objections
so received along with the responses of the company
thereto.

Step 13 NCLT Order

The order confirming the reduction of share capital and

approving the minute shall be in Form No. RSC - 6 on
such terms and conditions as may be deemed fit.

Step 14 Filing Order with ROC

The company shall file a certified copy of the order of the

NCLT and the minute approved by the NCLT to the ROC in
e-form INC 28 within 30 days of the receipt of order.

FAQs

1. Whether Buy Back of Securities is considered as the Reduction

of Share Capital ?
Ans: In Buy Back, the company purchases its own shares and
it is governed by section 68 of the Companies Act 2013.
2. Whether redemption of preference shares is considered as the
reduction of share capital ?
Ans : Issued preference shares are liable to be redeemed
 within a period not exceeding twenty years from the date of
their issue subject to the conditions prescribed under the rules
and it is governed under section 55 of the Companies Act 2013
3. Whether Forfeiture of share for non-payment of calls is
considered as reduction of share capital ?
Ans : Forfeiture of share means the cancellation of the shares
for non-payment of calls due. If any shareholder is not able to
pay the amount of call, the company may exercise the power
to forfeit his shares on which he is unable to pay the amount
of call. On forfeiture, we need to cancel the shares and to that
extent, reduce the Share Capital but the amount received by
the company is not refunded, hence it is not the reduction of
share capital under section 66 of the Act.
4. When the company cancels shares which have not been taken
or agreed to be taken, is it considered as the reduction of
share capital
Ans: The Companies Act 2013 allows the companies to alter
and make some changes in its authorized share capital (i.e. to
alter the capital clause of its Memorandum of Association)
with certain specified procedures for alteration of share
capital is specifically mentioned in the Section 61 of the
Companies Act, 2013.
5. What is procedure to file the application online on NCLT Portal
?
Ans: E-filing is quiet easy process, can check the link to know
detailed procedure :
https://efiling.nclt.gov.in/downloads/manual/manual.pdf
6. Is it Mandatory to attach the Master Data to the application /
petition filed ?
Ans: Yes, it is mandatory to attach the latest Master Data from
the MCA Portal to the application / petition.
7. What should be the font size and format of the application ?
Ans: Every appeal or petition or application or caveat petition
or objection or counter presented to the Tribunal shall be in
English and in case it is in some other Indian language, it shall
be accompanied by a copy translated in English and shall be
fairly and legibly type written, lithographed or printed in
double spacing on one side of standard petition paper with an
 inner margin of about four centimetre width on top and with a
right margin of 2.5. cm, and left margin of 5 cm, duly
paginated, indexed and stitched together in paper book form;
and The cause title shall state "Before the National Company
Law Tribunal" and shall specify the Bench to which it is
presented and also set out the proceedings or order of the
authority against which it is preferred. (For the minute details
, kindly check the Part III of the National Company Law
Tribunal Rules, 2016).
8. Is it necessary that every annexures to the application /
petition should be printed in green legal paper.
Ans: Yes, the entire petition / application along with the
annexures should be printed in the green legal paper.
9. Once the petition / application has been mentioned in the
NCLT – Bench , can we make an application to the NCLT to
expedite the process or hearing in case of urgency of the
matter.
Ans: Yes, the expeditious application can be made to the NCLT
along with the affidavit and covering letter.
10. Are the day to day vendors / suppliers to be considered as the
creditors ?
Ans: The day to day suppliers or vendors need not be
considered as creditors. Because they provide the material /
services etc to the Company on regular basis and they are the
part of Business Cycle.
11. Who will issue the Valuation Certification ?
Ans: Under section 247 of the Companies Act 2013 , Where a
valuation is required to be made in respect of any property,
stocks, shares, debentures, securities or goodwill or any other
assets (herein referred to as the assets) or net worth of a
company or its liabilities under the provision of this Act, it
shall be valued by a person having such qualifications and
experience and registered as a valuer and appointed by the
audit committee or in its absence by the Board of Directors of
that company.

Disclaimer : The views presented are in personal & in generic form and
not as a legal advice, further it has nothing to do with where I am
rendering my professional services. Users of this information are
expected to refer to the relevant existing provisions of the applicable
laws.

Author: CS Kavita Shah, is Practicing Company Secretary from Mumbai

and can be contacted at : csshahkavita@gmail.com

■■