Companies Act, 1956
Sec 488 - Declaration of solvency in case of proposal to
wind up voluntarily.
(1) Where it is proposed to wind up a company
voluntarily, its directors, or in case the company has more than two directors,
the majority of the directors, may, at a meeting of the Board, make a
declaration verified by an affidavit, to the effect that they have made a full
inquiry into the affairs of the company, and that, having done so, they have
formed the opinion that the company has no debts, or that it will be able to
pay its debts in full within such period not exceeding three years from the
commencement of the winding up as may be specified in the declaration.
(2) A declaration made as aforesaid shall have
no effect for the purposes of this Act, unless -
(a) it is made with in the five weeks
immediately preceding the date of the passing of the resolution for winding up
the company and is delivered to the Registrar for registration before that date
; and
(b) it is accompanied by a copy of the report
of the auditors of the company (prepared, as far as circumstances admit, in
accordance with the provisions of this Act) on the profit and loss account of
the company for the period commencing from the date up to which the last such
account was prepared and ending with the latest practicable date immediately
before the making of the declaration and the balance sheet of the company made
out as on the last-mentioned date and also embodies a statement of the company's
assets and liabilities as at that date.
(3) Any director of a company making a
declaration under this section without having reasonable grounds for the
opinion that the company will be able to pay its debts in full within the
period specified in the declaration, shall be punishable with imprisonment for
a term which may extend to six months, or with fine which may extend to fifty
thousand rupees, or with both,
(4) If the company is wound up in pursuance of
a resolution passed within the period of five weeks after the making of the
declaration, but its debts are not paid or provided for in full within the
period specified in the declaration, it shall be presumed, until the contrary
is shown, that the director did not have reasonable grounds for his opinion.
(5) A winding up in the case of which a
declaration has been made and delivered in accordance with this section is in
this Act referred to as " a members' voluntary winding up " ; and a
winding up in the case of which a declaration has not been so made and
delivered is in this Act referred to as " a creditors' voluntary winding
up ".