1. Where it is proposed to wind up a company voluntarily, its director or directors, or in case the company has more than two directors, the majority of its directors, shall, 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 they have formed an opinion that the company has no debt or whether it will be able to pay its debts in full from the proceeds of assets sold in voluntary winding up.
2. A declaration made under sub-section (1 ) shall have no effect for the purposes of this Act, unless—
a. it is made within five weeks immediately preceding the date of the passing of the resolution for winding up the company and it is delivered to the Registrar for registration before that date;
b. it contains a declaration that the company is not being wound up to defraud any person or persons;
c. it is accompanied by a copy of the report of the auditors of the company prepared 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 that date which would also contain a statement of the assets and liabilities of the company on that date; and
d. where there are any assets of the company, it is accompanied by a report of the valuation of the assets of the company prepared by a registered valuer.
3. Where the company is wound up in pursuance of a resolution passed within a period of five weeks after the making of the declaration, but its debts are not paid or provided for in full, it shall be presumed, until the contrary is shown, that the director or directors did not have reasonable grounds for his or their opinion under sub-section (1 ).
4. 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 from the proceeds of assets sold in voluntary winding up shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years or with fine which shall not be less than fifty thousand rupees but which may extend to three lakh rupees, or with both.
Legal Commentary & Landmark Judgments: Section 305
Section 305 of the Companies Act, 2013 codified the mandatory requirement for a verified declaration of solvency prior to initiating voluntary winding up; omitted by the IBC 2016, its strict evidentiary standards now govern Section 59(3)(a) of the IBC.
In drafting declarations of solvency under modern Section 59 IBC (mirroring Section 305), ensure valuation reports are procured strictly from registered valuers under Section 247 of CA 2013. Reconcile all contingent liabilities, ongoing arbitrations, and tax assessments; any undisclosed pending demand can lead to criminal prosecution for false declaration under both CA 2013 and Section 73 of IBC.