Order u/s 454(5) of Companies Act, 2013 in the matter of M/s. XING MAX PRIVATE LIMITED filed by MANGESH TUKARAM BANE

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BEFORE THE REGIONAL DIRECTOR, WESTERN REGION MINISTRY OF CORPORATE AFFAIRS, MUMBAI urine Pew, uae da, erie ord tare, Gre PAA, i, We, Fea.89/454 (5)/ Xing Max (Mangesh sane aszsrcgr02s| voy| 3,0 APR 2025 APPEAL UNDER SECTION 454(5) OF COMPANIES ACT, 2013 AGAINST ORDER PASSED FOR OFFENCES COMMITTED UNDER SECTION 92 OF THE COMPANIES ACT, 2013.

In the matter of XING MAX PRIVATE LIMITED. alas MANGESH TUKARAM BANE

• Director .. Appellant

ORDER

Appeal under sub-Section (5) of Section 454 of the Companies Act, 2013 (Act) read with the Companies (Adjudication of Penalties) Rules, 2014 (Rules) has been filed by ‘Mangesh Tukaram Bane’, Director of ‘Xing Max Private Limited’ (Company) having CIN U74999MH2019PTC322741, against Order No. ROC(M)/XING MAX-INQ/AD)ORDER/92/2024-25/2904 to 2907 dated 04/12/2024 (ROC Order) of Registrar of Companies, Mumbai for violating provisions of Section 92 of the Act.

23 The appeal lies within the jurisdiction of the Regional Director, Western Region, Ministry of Corporate Affairs, Government of India.

3. The Registrar of Companies, Mumbai (RoC Mumbai) vide Adjudication Order dated 04/12/2024 held the Company and its Officers/Directors, who ‘have defaulted liable for penalty under Section 92(5) of the Act from 01/12/2021 to 12/09/2023 for not filing Annual Return for the Financial Year 2020-21 within sixty days from the date of Annual General Meeting in pursuance of Section 96 of the Act as under:

|No. of |Penalty imposed on| First<br>Default<br>days<br>Company/KMP<br>default | continues<br>default<br>InRs.<br>penalty<br>(inRs.|Total<br>penalty |Maximum<br>levied (In Rs.)<br>penalty<br>(in<br>Rs.|
|---|---|
|Limited<br>65,000/-|=75,000/~-|
|650 |Bane<br>65,000/-|=75,000/-|
|65,000/-|= 75,000/-|
|65,000/-<br>= 75,000/-<br>Po<br>FOTALY<br>3,00,000/-]__2,25,000/-}||

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|---| |Limited<br>65,000/-|=75,000/~-| |650 |Bane<br>65,000/-|=75,000/-| |65,000/-|= 75,000/-| |65,000/-<br>= 75,000/-<br>Po<br>FOTALY<br>3,00,000/-]__2,25,000/-}||

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4, Appellant has filed Form-ADJ vide SRN AB2567608 dt. 29/01/2025. As per provisions of sub-Section (6) of Section 454, every appeal under sub-section (5) shall be filed within sixty (60) days from the date on which the copy of the order made by the adjudicating officer is received by the aggrieved person. On examination of the application/ appeal, it is seen that the said application/appeal has been filed within 60 days from the date of passing of the adjudication order. 

5. Grounds of Appeal & Relief sought: a. The Appellant has resigned from the company with effect from 09/01/2022 and has filed e-form DIR-11 vide SRN T95508008._ . 

b. Appellant was served notice on incorrect address, hence Appellant was not provided with proper opportunity to be heard which is in violation of Principles of Natural Justice. 

c. Ason the date of show cause notice, the Appellant was not a director of the company. Hence, he cannot reply on behalf of the company. 

d. During the course of Search by Income Tax Department and Inquiry by Ld. ROC, Appellant’s mother was diagnosed with Cancer and Appellant has exhausted his entire savings for her treatment. 

e. There is no default for non-filing of Form MGT-7/7A by Appellant as Appellant has resigned prior to due date of filing e-form MGT-7/7A (Due 

- date for filing MGT-7 was 29/01/2022 and Date of Resignation was 09/01/2022).

non-filing of Form MGT-7/7A by Appellant as Appellant has resigned prior to due date of filing e-form MGT-7/7A (Due 

- date for filing MGT-7 was 29/01/2022 and Date of Resignation was 09/01/2022). 

f. Appellant is currently facing significant financial hardship and is struggling to make ends meet. 

g. To allow this Appeal and set aside the Order dt.04/12/2024 passed by the ROC, Mumbai. 

   - h. To waive the penalty imposed on the Appellant, taking into consideration the Appellant’s financial position and the undue hardship caused by the imposition of the penalty. 

   - i. To direct the recovery of penalty (if any) on Appellant from current account and debtor’s list of the company which has been frozen by the Tax Authorities. 

   - j. Such further and other reliefs as may deem fit and proper. 

6. The matter was posted for hearing as per Section 454(5) read with Section 454(7) of the Act on 04/04/2025. Shri Elias Rodrigues, Practicing Company Secretary, appeared on behalf of the Appellant. The authorized representative reiterated the submission made by the Appellant in his application and admitted the contravention of Section 92 of the Act. However, he argued that the Appellant has resigned from the company with effect from 09/01/2022 and has filed e-form DIR-11 vide SRN _T95508008. He further stated that as on the date of show cause notice, the Appellant was not.a director of the company and requested to waive off the penalty imposed on the Appellant as the Appellant is facing significant financial hardship and is struggling to make ends meet

llant was not.a director of the company and requested to waive off the penalty imposed on the Appellant as the Appellant is facing significant financial hardship and is struggling to make ends meet 

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7 The punishment for contravention of section 92 is prescribed under section 92(5) of the Act which states that — 

"If any company fails to file its annual return under sub-section(4), before the expiry of the period specified therein, such company and its every officers who is in default shall be liable to a penalty of ten thousand rupees and in case ofcontinuing failure, with a further penalty ofone hundred rupees for each day after the first during which such failure continues, subject to a maximum of two lakh rupees in case ofa company and fifty thousand rupees in case ofan officer who is an default.” 

8. Asstt. Registrar of Companies, Mumbai vide further letter dt.21/03/2025 has stated that - 

- a. The averments made in the appeal are denied in toto unless specifically admitted and any issues which have not been specifically dealt with may not be deemed to be admitted due to lack of traverse. 

- b. The company’s Master Data and Signatory details as available on MCA21 database revealed that the name of Mr. Mangesh Tukaram Bane is still being reflected as Signatory (Director).

traverse. 

- b. The company’s Master Data and Signatory details as available on MCA21 database revealed that the name of Mr. Mangesh Tukaram Bane is still being reflected as Signatory (Director). 

- c. The applicant has only submitted his resignation letter and has not produced even an iota of evidence to the effect that the said resignation was received by the company. Thus, in absence of proof of acknowledgement of receipt of resignation letter by the company, the contention of appellant is inadmissible. 

- d. Registrar of Companies, Mumbai vide Office Memorandum dt.23/09/2021 had given an extension of two months’ time for holding of Annual General Meeting for the Financial Year ended 31/03/2021 and while calculating the period of default, the Adjudicating Officer should have excluded the period of extension i.e. 29/11/2021 to 28/01/2022. After the exclusion of said period, the period of default shall be 29/01/2022 to 12/09/2023 ie. 592 days and accordingly, the penalty payable by Mr. Mangesh Tukaram Bane shall be Rs.50,000/- (maximum penalty payable as per Section 92(5) of the Act) and to that extent the Learned Regional Director may be pleased to modify the period of default. 

- e. Change of address was not communicated by the appellant to the Registrar of Companies either by filing an e-form or otherwise. 

- f. The notices were sent by the Respondent to the appellant at the correct address as per the signatory details available in the MCA21 database and it is settled principal of law that the notices sent to the correct address are deemed delivered. 

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pellant at the correct address as per the signatory details available in the MCA21 database and it is settled principal of law that the notices sent to the correct address are deemed delivered. 

; 

9. Facts of the Case: 

- a. Office of Registrar of Companies, Mumbai has conducted an inquiry under Section 206(4) of the Act against the irregular functioning of the company. 

- b. The Company has failed to file a copy of the Annual Return with the Registrar of Companies for the Financial Year 2020-21 within sixty days as per the provisions of Section 92 of the Act. 

- c. ROC, Mumbai has imposed penalty as per Section 92(5) of the Act. 

- d. The company has failed to file e-form MGT-7 and DIR-12 till date. 

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- e. As stated by the Asst. Registrar of Companies vide letter dt.21/03/2025, the period of default shall be from 29/01/2022 to 12/09/2023 ie. 592 days and accordingly, the total penalty payable by Mr. Mangesh Tukaram Bane amounts to Rs. 69,200/-. However, as per Section 92(5) of the Act, the maximum penalty payable shall be Rs.50,000/- which remains unchanged. 

In view thereof, there is no inherent defect in the Adjudication Order dt. 04/12/2024 and the same is in accordance with the provisions of the Act except for number of days of default under Section 92 of the Act which comes to 592 days and accordingly the number of days of default will be modified without having impact on maximum penalty of Rs.50,000/- for the Appellant. The modified penalty is as under:

t which comes to 592 days and accordingly the number of days of default will be modified without having impact on maximum penalty of Rs.50,000/- for the Appellant. The modified penalty is as under: 

No. of | Penalty imposed on | First Default Total penalty Maximum days Company/KMP | default continues (In Rs.) penalty payable default (In Rs.) | penalty (in Rs.) (In Rs.) 592 |Mangesh Tukaram | 10,000/592X100 = | 10,000 + 59,200 50,000/Bane 59,200/= 69,200/OAL69,200 [50,0007 TOTAL PENALTY PAYABLE: Rs.50,000/- 

10. Taking into consideration the Adjudication Order of the Registrar of Companies, Mumbai; submissions made by the Appellant in his application as well as oral submission during the hearing; further letter of RoC, Mumbai; I am of the considered view that there is no merit in the appeal as filing e-form DIR-11 is not Bonafide in the present situation, and accordingly, the Adjudication Order dated 04/12/2024 passed by ROC, Mumbai is ‘MODIFIED’ under Section 454(7) of the Act. 

11. In view of the above, the present appeal is disposed of with directions to the appellant to pay the penalty imposed by the Registrar of Companies, Mumbai vide Adjudication Order dt. 04/12/2024 within 90 days, failing which, Registrar of Companies, Mumbai, is directed to file prosecution under Section 454(8) of the Act. 

Further, the appellant is advised to submit proof of payment of penalty (challan) imposed upon him to the Office of Registrar of Companies, Mumbai, for their record and for further necessary action.

urther, the appellant is advised to submit proof of payment of penalty (challan) imposed upon him to the Office of Registrar of Companies, Mumbai, for their record and for further necessary action. 

12. Registrar of Companies, Mumbai, is further directed to file prosecution under Section 454(8) of the Act, if the company and other directors/ officers of the company have failed to deposit the penalty imposed upon them within 90 days of Adjudication Order of ROC, Mumbai dt. 04/12/2024. 

A copy of this order shall be published on the website of the Ministry of Corporate Affairs as per Rules. 

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Signed and sealed on ‘5 Oday of April 2025. ,<br>Gon < cone<br>fe<br>[. ae aN (SANTOSH KUMAR)<br>€“S @Be a REGIONAL DIRECTOR<br>\\ te&%,% aa wes&aS) | WESTERN REGION, MUMBAI<br>N P5083 ok ey<br>“Es MUNG Page 4 of 5<br>**----- End of picture text -----**<br>


- To, 1. Xing Max Private Limited, Olst & 2nd Floor , Kagalwala House, Plot No.175, Behind Metro House, CST Road, Kalina, B KC complex, Santacruz East, Mumbai City, Maharashtra 400098, India. 

- 2. Mangesh Tukaram Bane, C-04, Landbreez Complex Manjali Road, Mohammad Nagar, Badlapur East, Thane 421503, Maharashtra, India. 

- 3. Registrar of Companies, Mumbai. 4, E-Gov Cell, Ministry of Corporate Affairs, New Delhi. 5. Masterster Copy.Copy i <Ostifiagdys eerue Copy” 6. Office Copy. \[we] (TUSHAR WAGH, ICLS) DEPUTY DIRECTOR 

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