Ministry of Corporate Affairs vide its gazette notification no SO 831(E) dated 24.03.2015 appointed undersigned as Adjudicating Officer in exercise of the powers conferred by section 454 of the Companies Act, 2013 [herein after known as Act] read with Companies (Adjudication of Penalties) Rules, 2014 [Notification no GSR 254(E) dated 31-3-2014] for adjudging penalties under the provisions of the Act. The undersigned vide Companies (Amendment) Ordinance, 2019 is entrusted to adjudicate penalties under section 92 and 137 of the Act with effect from 02.11.2018.
While adjudging quantum of penalty under section 92(5) and 137(3) of the Act, the Adjudicating Officer would take into consideration the following factors, namely:
The amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of default.
The amount of loss caused to an investor or group of investors as a result of the default.
The repetitive nature of default.
With regard to the above factors to be considered while determining the quantum of penalty, it is noted that the disproportionate gain or unfair advantage made by the noticees or loss caused to the investor as a result of the delay on the part of the noticees to redress the investor grievance are not available on record. Further, it may also be added that it is difficult to quantify the unfair advantage made by the noticees or the loss caused to the investors in a default of this nature. However, the offence is of serious nature since non-filing of Annual Accounts by the Company put itself out of reach of stakeholders/ regulatory authorities and other concerned.
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