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In the course of serving our esteemed clients, especially private companies and limited liability partnerships, we have come across innumerable queries which ask : Is it mandatory to hold AGM? All the Companies registered under the Companies Act, 1956 or any other previous Indian Laws, be it Public or Private or Producer Company whether Listed or Unlisted in any Stock Exchanges, the Companies are required to hold an Annual General Meeting on yearly basis. It is mandatory on every company to hold an annual general meeting in every calendar year. However, the partners of Limited Liability Partnerships can relax, when it comes to the question : Is it mandatory to hold AGM?
(1) TIME LIMIT FOR HOLDING FIRST ANNUAL GENERAL MEETING (AGM)
A newly incorporated Company is required to hold its First Annual General Meeting hold its first annual general meeting within a period of not more than eighteen months from the date of its incorporation (the date as mentioned in the Certificate of Incorporation of that Company); and if such general meeting is held within that period, it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation or in the following year, subject to the condition that the Company must comply with the provisions of Section 210 of the Companies Act 1956.
The Company is also required to comply with the provisions Section 210 of the Companies Act 1956, which has also a vital role in fixing the date of Annual General Meeting: As per the said Section 210 :
The Board of Directors of a Company shall lay before the members at the every Annual General meeting the followings financial statements –
(a) a balance sheet as at the end of the period specified in sub-section (3), and
(b) a profit and loss account for that period, which shall relate in the case of the first annual general meeting of the company, to the period beginning with the incorporation of the company and ending with a day which shall not precede the day of the meeting by more than nine months.
(2) TIME LIMIT FOR HOLDING SUBSEQUENT ANNUAL GENERAL MEETING (AGM)
The Company is also required to comply with the provisions Section 210 of the Companies Act 1956, which has also a vital role in fixing the date of Annual General Meeting: As per the said Section 210 :
The Board of Directors of a Company shall lay before the members at the every Annual General meeting the followings financial statements –
(a) a balance sheet as at the end of the period specified in sub-section (3), and
(b) a profit and loss account for that period, which shall relate in the case of any subsequent annual general meeting of the company, to the period beginning with the day immediately after the period for which the account was last submitted and ending with a day which shall not precede the day of the meeting by more than six months, or in cases where an extension of time has been granted for holding the meeting under the second proviso to sub-section (1) of section 166, by more than six months and the extension so granted.
(3) INTERVAL BETWEEN TWO AGMs
The provisions of Sub-Section (1) of Section 166 of the Companies Act, 1956 clearly states that the period between two Annual General Meetings shall not be more than (15) fifteen months.
The Registrar of Companies may, on an application made to it by way of filing of form 62 with certified true copy of the Board Resolution/General Meeting Resolution, extend the period for holding the Annual General meeting for a period of 3(three) more months.
The Companies are not allowed to make an application for extension of time for the First Annual General Meeting. And therefore the non-holding of 1st AGM will be a non-compliance of the Section 166 of the Companies Act, 1956 and the Company will be liable for penal provisions.
Let us put forth an example to enunciate –
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Particulars
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Date
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Date of Incorporation
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20.11.2010
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First Financial year ended
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31.03.2011
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Due Date of 1st AGM (18 months from incorporation – Sec 166)
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19.05.2012
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Due Date of 1st AGM (max 9 months Gap between last date of 1st financial year and date of AGM – Sec 210)
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31.12.2011
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As Due Date of AGM as per Section 210 is earlier than Due date of AGM as per Section 166, the compliance of Sec 210  will also take care of the compliance of Section 166, and therefore the Due Date by which AGM should be held will be the due date as per Section 210
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31.12.2011
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Due date of Second AGM (not more than 15 months from 1st AGM – Sec 166) (suppose the 1st AGM held on 31.12.2011)
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31.03.2013
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Due date of Second AGM (max 6 months Gap between last date of 2nd financial year and date of AGM – Sec 210) ( 2nd Financial year ended on 31.03.2012)
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30.09.2012
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Due date of 2nd AGM shall be earlier of above two
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30.09.2012
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For all subsequent year, AGM due date needs to be calculated as per above calculations for due date for 2nd AGM.
Consequences of Non- Compliance
If any person, being a director of a company, fails to take all reasonable steps to comply with the provisions of this section, he shall, in respect of each offence, be punishable with imprisonment for a term which may extend to 6 months, or with fine which may extend to Rs 10,000, or with both : Provided that in any proceedings against a person in respect of an offence under this section, it shall be a defence to prove that a competent and reliable person was charged with the duty of seeing that the provisions of this section were complied with and was in a position to discharge that duty : Provided further that no person shall be sentenced to imprisonment for any such offence unless it was committed wilfully.