Form MGT-8 is a certification provided by a practicing company secretary on a company’s annual return, according to the Companies Act 2013, under Section 92(2). In Form MGT-8, the CS certifies that the annual return discloses the facts correctly and adequately and that it complies with the relevant provisions of the Company’s Act 2013. In order to provide such an assurance, the company secretary needs to carefully examine the registers, records, books and papers of a company to ensure they are free from any misrepresentations and fraudulent activities.
Applicability of Form MGT-8
According to the rules under Section 92(2) of the Companies (Management and Administration) Rules, 2014, the following types of companies should get their annual returns certified by a practicing Company Secretary in the Form MGT-8:
- Listed Company, or
- A company having a paid-up share capital of Rs. 10 Crores or more, or
- A company with a turnover of Rs. 50 Crores or more
The certificate assures that a company has complied with provisions of the Act & Rules under some aspects of compliance. The following are the some of the aspects of compliance that the MGT-8 deals with:
- Status of the company under the Act
- Maintenance of registers/ records, filing of forms and returns
- Calling/ convening/ holding meetings of Board of Directors or its committees
- Closure of Register
- Advances/ loans to its directors
- Contracts/ arrangements with related parties
- Issue, allotment, transfer, transmission, or buyback of securities or shares
- Signing of audited financial statement
- Approvals required to be taken from the Central Government and other local authorities
Penalty for Non-Compliance
There is a penalty for a practicing company secretary for providing a false certificate that does not comply with the requirements mentioned in Section 92. The fine charged on the company secretary shall not be less than Rs. 50,000 and might extend to Rs. 5 Lakh.
A practicing company secretary will be liable for disciplinary actions by the Disciplinary Committee of the ICSI under the provisions of Company Secretaries Act, 1980.Further, Section 448 of Companies Act, 2013 also imposes a penalty if any return, report, certificate, financial statement, prospectus, statement or any other document makes a false statement or omits any material fact.
Finally, section 447 of Companies Act 2013 imposes a serious punishment of imprisonment if any person is found to be guilty of fraud. It shall be for a minimum of six months and can extend to ten years. In addition, a fine will be imposed, which shall not be less than the amount involved in the fraud and may extend to three times the amount involved in the fraud. If the case is more serious, involving public interest, the imprisonment would be for a minimum of three years.
Form MGT-8 Format
A copy of Form MGT-8 format is reproduced below for reference. Click here to download Form MGT-8 in word format.
Form No. MGT-8
[Pursuant to section 92(2) of the Companies Act, 2013 and rule 11(2) of Companies (Management and Administration) Rules, 2014]
CERTIFICATE BY A COMPANY SECRETARY IN PRACTICE
I/ We have examined the registers, records and books and papers of ———— Limited/Private Limited (the Company) as required to be maintained under the Companies Act, 2013 (the Act) and the rules made thereunder for the financial year ended on —————– , 20—-. In my/ our opinion and to the best of my information and according to the examinations carried out by me/ us and explanations furnished to me/ us by the company, its officers and agents, I/ we certify that:
- The Annual Return states the facts as at the close of the aforesaid financial year correctly and adequately.
- During the aforesaid financial year the Company has complied with provisions of the Act & Rules made there under in respect of:
- Its status under the Act;
- Maintenance of registers/records & making entries therein within the time prescribed therefor;
- Filing of forms and returns as stated in the annual return, with the Registrar of Companies, Regional Director, Central Government, the Tribunal , Court or other authorities within/beyond the prescribed time;
- Calling/ convening/ holding meetings of Board of Directors or its committees, if any, and the meetings of the members of the company on due dates as stated in the annual return in respect of which meetings, proper notices were given and the proceedings including the circular resolutions and resolutions passed by postal ballot, if any, have been properly recorded in the Minute Book/registers maintained for the purpose and the same have been signed;
- Closure of Register of Members / Security holders, as the case may be.
- Advances/loans to its directors and/or persons or firms or companies referred in section 185 of the Act;
- Contracts/arrangements with related parties as specified in section 188 of the Act;
- Issue or allotment or transfer or transmission or buy back of securities/ redemption of preference shares or debentures/ alteration or reduction of share capital/ conversion of shares/ securities and issue of security certificates in all instances;
- Keeping in abeyance the rights to dividend, rights shares and bonus shares pending registration of transfer of shares in compliance with the provisions of the Act
- Declaration/ payment of dividend; transfer of unpaid/ unclaimed dividend/other amounts as applicable to the Investor Education and Protection Fund in accordance with section 125 of the Act;
- Signing of audited financial statement as per the provisions of section 134 of the Act and report of directors is as per sub – sections (3), (4) and (5) thereof;
- Constitution/ appointment/ re-appointments/ retirement/ filling up casual vacancies/ disclosures of the Directors, Key Managerial Personnel and the remuneration paid to them;
- Appointment/ reappointment/ filling up casual vacancies of auditors as per the provisions of section 139 of the Act;
- Approvals required to be taken from the Central Government, Tribunal, Regional Director, Registrar, Court or such other authorities under the various provisions of the Act;
- Acceptance/ renewal/ repayment of deposits;
- Borrowings from its directors, members, public financial institutions, banks and others and creation/ modification/ satisfaction of charges in that respect, wherever applicable;
- Loans and investments or guarantees given or providing of securities to other bodies corporate or persons falling under the provisions of section 186 of the Act ;
- Alteration of the provisions of the Memorandum and/ or Articles of Association of the Company;