Since we believe in going concern assumption, as everyone wants his business to flourish more and more, but at some point of time due to circumstantial reasons one has to close down his business, that stage is known as winding up of a company. Since it is the last stage of company in which its existence for past several years is dissolved and all its assets are used to pay off its debts to creditors, shareholders and other liabilities.
As per section 270 of the Companies Act, 2013 a company can initiate the procedure for winding up either –
-By the tribunal or
WINDING UP OF A COMPANY BY A TRIBUNAL
As per companies act 1956, a company can be wound up by a tribunal on the basis of the following reasons:
- Suspension of the business for the one year from the date of incorporation or suspension of business for whole year.
- Reduction in number of minimum members as specified in the act (2 in case of private company and 7)
But with the introduction of the new companies act,2013 these above stated grounds for winding up have been replaced with some new situations
As per new companies act 2013 a company can be wound up by tribunal in the below mentioned circumstances:
- When the company is unable to pay its debts to creditors.
- If the company has acted against the interest of the integrity of India, security of state or has spoiled any kind of friendly relations with foreign or neighboring countries.
- If the company has not filed its financial statements or annual return for preceding for consecutive 5 years.
- If the tribunal by any means finds that it is just & equitable that the company should no longer be carried forward.
- If the company in any ways is indulged in fraudulent activities or any other unlawful transaction, or any person or employee connected with the formation of company is found guilty or fraud, or any kind of misconduct.
FILING OF WINDING UP PETITION-
Section 272 provides that winding up petition is to be filled in the prescribed form no.1,2,3 whichever is applicable and it is to be submitted in 3 sets. The petition for compulsory winding up can be presented by following persons:
Ø The Company
Ø The Creditors
Ø Any contributory or contributories
Ø By the central or state government
Ø By the registrar of any person authorized by central government for that purpose
At the time of filling petition, it shall be accompanied with the statement in Affairs with the form no.4 . The petition shall state the facts up to a specific date which shall not be more than 15 days prior to the date of making statement. After preparing the statement it shall be certified by practicing Chartered Accountant.This petition shall not be advertised in not less than 14 days before the date of hearing in both of the newspapers English and any other local language.
FINAL ORDER AND ITS CONTENT
The tribunal after hearing petition has the power to dismiss it or to make it interim order as it think appropriate or it can appoint the provisional fiduciary of the company till the passing of winding up of order. An order for winding up is given in form no.11.
VOLUNTARY WINDING UP OF A COMPANY
The company can be wound up voluntarily by mutual decision of members of the company, if the company passes special resolution about winding up of the company. The company in its general meeting passes a special resolution for winding up as a result of expiry of the period of its duration as fixed by its Article of Association(it is a document that defines the duties and responsibilities of the members of the company) or the occurrence of any such event where the articles provide for the dissolution of company.
- Conduct a Board meeting with 2 Directors and thereby pass a resolution along with a declaration given by directors that they are of the opinion that the company has no debt or it will be able to pay its debt after utilizing all the proceeds from sale of its assets.
- Issues notices in writing for calling off a General meeting proposing the resolution at the same time with the explanatory statement.
- In General meeting pass the ordinary resolution for the purpose of winding up by majority or special resolution by 3/4th majority. The winding up shall be stated from the date of passing the resolution.
- Conduct a meeting of creditors after passing the resolution, if more than half of the creditors are of the opinion that winding up of the company is favorable for all the parties then company can be wound up voluntarily.
- Within 10 days of passing the resolution, file a notice with the registrar for appointment of liquidator.
- Within 14 days of passing such resolution, give a notice of the resolution in the official gazette and also advertise in a newspaper.
- Within 30 days of General meeting, file certified copies of ordinary or special resolution passed in general meeting.
- Wind up the affairs of the company and prepare the liquidators account and get the same audited.
- Conduct a General meeting of the company.
- In that General meeting pass general resolution for disposal of catalogues and all necessary documents of the company, when the affairs of the company are totally wound up and it is about to dissolve.
- Within 15 days of Final General Meeting, submit a copy of accounts and file an application to tribunal of passing an order for dissolution.
- If the tribunal is of the opinion that the accounts are in the order and all the necessary compliances have been fulfilled, the tribunal shall pass an order for dissolving a company within 60 days of passing such an application.
The appointed fiduciary would then file a copy of order with the registrar.
After receiving a order passed by the tribunal, the registrar then can publish a notice in the Official Gazette declaring that he company is dissolved.