BEN 2 - Additional fees being charged by MCA

1. Background:-

The Ministry of Corporate Affairs (MCA) had amended the Companies (Significant Beneficial Owners) Rules, 2018 (“SBO Rules”) vide an amendment effective from 8^th February 2019. These Amended SBO Rules clarified the concept of Significant Beneficial Owner, as referred in Section 90 of the Companies Act, 2013.

As per the amended SBO Rules, following due dates were prescribed:-

The Significant Beneficial Owners (SBO) for any Company were required to file a declaration in Form BEN-1 with the reporting company within 90 days from the commencement of the amended Rules, i.e., within 90 days from 8^th February 2019, i.e., on or before 9^th May 2019.

Upon receipt of BEN-1, the Reporting Company is required to file a return in Form No. BEN-2 with the Registrar of Companies within a period of 30 days from the date of receipt of Form BEN-1, i.e., the last date for filing of BEN-2 with ROC was 8^th June 2019.

As per the SBO Rules, Form BEN-1 is a format which can be filled physically by the SBOs. However, Form BEN-2 is an e-Form. MCA had not deployed e-Form BEN-2 on MCA portal even till 8^th June 2019, i.e., the due date of filing BEN-2 as per SBO Rules.

2. Deployment of e-form BEN-2:-

Now, e-Form BEN-2 is deployed on MCA portal with effect from 1^st July 2019. As per an earlier Circular issued by MCA dated 6^th September 2018, “the time-limit for filing BEN-2 form would be 30 days from the date of deployment of BEN-2 eform on the MCA portal and no additional fees will be levied if the same is filed within 30 days from the date of deployment of the said e-form.”

However, as per the Help-kit of e-Form BEN-2, Normal fees shall be levied till 30 days from the date of receipt of declaration in BEN-1 and thereafter additional fees shall be levied as per the Companies (Registration Offices and Fees) Rules, 2014. 

3. Due date for receipt of BEN-1 from SBOs and its impact on BEN-2:-

There was no extension in the due date for receipt of BEN-1 from SBOs, and hence the last date for receipt of BEN-1 was 9^th May 2019.  Hence, while filing any Form BEN-2, in the tab asking “date of receipt of declaration in BEN-1”, the reporting company shall be entering any date on  or before 9^th May 2019 in all cases where BEN-1 is received within the due date. Hence, while uploading BEN-2 forms, as per the Help-kit and the technical calculation available with MCA Fee calculator, the MCA system is levying Additional fees for all such e-forms BEN-2 wherever BEN-1 was received within the due date.

As per the above mentioned MCA Circular dated 6^th September 2018, normal fees should be charged by MCA for all BEN-2 forms which shall be filed by companies within 30 days from the date of deployment of e-form BEN-2 on MCA portal, i.e., normal fees should be levied till 31^st July 2019 (as e-form BEN-2 was deployed on 1^st July 2019).

It seems MCA system is yet to be upgraded to accept BEN-2 forms as per this Circular, or else all companies will end up paying Additional fees for BEN-2 forms even if it is filed today….