Suggestions on Draft Notification to be issued by MCA for Exemptions to Private Company under Companies Act, 2013
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- Roberta Gilbert
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1 Suggestions on Draft Notification to be issued by MCA for Exemptions to Private Company under Companies Act, 2013 At the outset the exemption notification should be made applicable since the date the relevant provisions were made applicable under the Companies Act 2013 S. No. Provision 1 Chapter IV, Section 43 and 47 [Both Whole] 2 Chapter IV Clause (a) of sub-section (1) of section 62 and subsection (2) of section 62 3 Chapter IV, clause (b) of sub-section (1) of section 62 4 Chapter V, sub-section (2) of section 73 MCA proposed notification / clarification Shall not Apply Shall apply with following modification:- Words not being less than fifteen days and not exceeding thirty days shall be substituted with not being less than seven days and not exceeding fifteen days Shall apply except that instead of special resolution, ordinary resolution would be required Shall not apply to private companies having 50 or less number of members if they accept monies from their members not exceeding twenty five per cent of aggregate of the paid up capital and Suggestion / Comments These provisions relate to kinds of shares. Non applicability of these to Private company does not give any benefit to a Private Company. In fact non applicability of s. 43 could mean that a Private company can have any kind of share capital or one may interpret that a private company cannot have any kind of share capital. This exemption should not be given. This is not a benefit to a private company. This would result in lesser time available to a shareholder to subscribe to rights issue. This exemption should not be given. This is good. Would result in reduction in filing compliances. to all companies. The benefit should be given to private companies in full. Restricting the amount which can be taken to paid up capital or free reserves would hamper the business community to plough their own money in a repatriable mode. As once money is put in as equity, it cannot be
2 free reserves or one hundred per cent of the paid up capital, whichever is more, and which inform the details of such monies to the Registrar in the prescribed manner. withdrawn, but if put as loan can be withdrawn when not required by the company. Private Companies should be free to bring monies from the shareholders and relative of directors without any monetary restrictions. Also the definition of relatives has been pruned to a great extent. Filing of details with Registrar would result in over compliance, and not serve any purpose. In fact, amendment should be made in Companies (Acceptance of Deposit) Rules, Sub-Clause (viii) of Clause (c) sub-rule (1) of rule 2 should be deleted and substituted as under: (viii) Any amount received from a person who at the time of receipt of the amount, was a director of the company and in case of a private company was a director or relative of director or shareholder of the company. Provided that the director or his relative or shareholder from whom money is received furnishes to the company at the time of giving the money a declaration on writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others. In case there is a case to regulate unworthy practices by some, a breather could be given to genuine promoters (which clearly outnumber the unworthy persons by huge numbers). In such case the substitution may be as under:- (viii) Any amount received from a person who at the time of receipt of the amount,
3 was a director of the company and in case of a private company was a relative of director or shareholder of the company, where the number of members in the company does not exceed 50. Provided that the director or his relative or shareholder from whom money is received furnishes to the company at the time of giving the money a declaration on writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others. 5 Chapter VII, sections 101 to 107 and section 109 [All whole] 6 Chapter X, Clause (g) of sub-section (3) of section 141 Shall apply unless - otherwise specified in respective sections or - unless articles of the private company otherwise provide. Shall not apply in respect of appointment of auditors by private companies This is related to Notice, Quorum etc of meetings. This is ok. No major relief to a Private Company. This is related to number of audits by an auditor. This is very good exemption. However, the intent and interpretation is different. For example a Public Company wants to appoint a person as auditor who is not an auditor of any Public Company but is an auditor of more than twenty private companies, it would not be able to do so under clause (g) of sub-section (3) of section 141 as the said provision says that a company cannot appoint a person as an auditor who holds more than 20 audits. As per your exemption, a private company can appoint him even if he holds more than 20 audits, but a public company cannot appoint him when he is an auditor or more than 20 companies. The exemption should be as under:-
4 7 Chapter XI, section 160( Whole) 8 Chapter XI, section 162 [Whole] 9 Chapter XII, Section Chapter XII, section 185 Shall not apply Shall not apply Shall not apply to private companies having 50 or less number of members Shall not apply to Private companies - (a) which have borrowings from banks or financial institutions or any bodies corporate not more than twice of their paid up share capital or Rs. 50 crore, whichever is lower; and (b) in whose share capital no other body corporate has invested any money. CA. Pramod Jain Where a person or a partner of a firm is an auditor of a Private Company, the same shall not be counted for calculation of number of audits under clause (g) of subsection (3) of section 141 This is related to right of a person other than retiring directors to stand for directorship. This is good exemption. This is related to appointment of directors to be voted individually. This is good exemption. This is related to restriction on Powers of Board. This is a very good exemption. This is related to Loan to Directors. This is a very good exemption. However, the (b) condition of nonexemption in case of investment by body corporate is not reasonable. The (b) condition should be removed. 11 Chapter XII, section 188 Shall not apply. This is related to Related Party Transaction. This is a very good exemption. 12 Chapter XIII, section 196, sub-section (4) and sub-section (5) Shall not apply This is related to appointment of managing director, whole time director and their remuneration. This is a good exemption. 13 Chapter XIII, sub- Shall not apply This is related to KMP not holding office
5 section (3), section 203 in more than one company. This is a good exemption, however having some practical issues. A Private Company is not required to appoint a KMP except a Company secretary where its paid up capital exceed Rs. 5 Crores. KMP includes a Company Secretary too. By non-applicability of this provision to private companies, it could be presumed that one person can be appointed as a company secretary in more than one Private Companies. The exemption should be as under: Chapter XIII, section 203 [Whole] Shall not apply except wherever a Company Secretary is required to be appointed. Certain exemption provisions not contained in the draft notification, but should be given are suggested below: S. Provision Issue Suggested Exemption No. 1 Chapter III, Section 42 A Private Company when The Exemption should be: (Whole) wants to issue some shares to its known friends, the over Shall not apply to Private compliance and penal Companies where its number of provisions are burdening them members does not exceed 50 before as the penal provision is or after the issue. minimum Rs. 2 Crores even if a small equity of Rs. 1 Lac is to be issued. 2 Chapter IV, Section 62(1)(c) read with Rule 13(1) of Companies (Share Capital and Debentures) 2014 Rules, A company when wants to make further issue of shares can make a right issue and if the shareholders do not want to invest, shares can be issued on preferential basis. For issue of shares on preferential basis compliance is Rule 13(1) of Companies (Share Capital and Debentures) Rules, 2014 should be amended to delete the following: and such issue on preferential basis should also comply with conditions laid down in section 42 of the Act
6 to be made of Rule 13 of Companies (Share Capital and Debentures) Rules, 2014, which is quite exhaustive in itself. Further, sub-rule (1) of Rule 13 says that apart complying with this provision, compliance of section 42 (Private Placement) is also mandatory. For issue of shares other than by cash, the only provision in the Act is section 62(1)(c). However, by making section 42 applicable via Rules, now no shares can be issued for other than cash including conversion of payables into equity. This is as legal default as well as resulting in unnecessary duplication of compliance and increase in compliance costs. 3 Chapter V, Section 74 There is a misapprehension in the minds of the general public, that moneys received prior to commencement of this Act i.e., prior to 31 st March 2014, which were not deposits in terms of Companies (Acceptance of Deposit) Rules, 1975 read with relevant provisions of Companies act 1956 becomes deposits if covered under definition of deposit given in Companies (Acceptance of Deposit) Rules, 2014 and need to comply with provisions of section 74 of Companies Act 2014 and repay within one year, which is practically impossible. Necessary amendment or clarification be issued to state that: Monies received prior to commencement of this Act i.e., prior to 31 st March 2014, which were not deposits in terms of Companies (Acceptance of Deposit) Rules, 1975 read with relevant provisions of Companies act 1956 does not become deposits even though covered under definition of deposit given in Companies (Acceptance of Deposit) Rules, 2014 and hence the provisions of section 74 of Companies Act 2014 are not applicable to such cases.
7 4 Chapter XII, subsection (3) of Section 179 read with Rule 8 of Companies (Meetings of Board and its Powers) Rules, Chapter XII, Section 184 (1), read with Sub- Rule (5) of Rule 8 of Companies (Meetings of Board and its Powers) Rules, Chapter XII, Section 186 Rule 8 requires various resolutions to be passed only at a Board Meeting, and required to be filed with the registrar in terms of section 117 read with section 179(3). Filing of various Board Resolutions is quite cumbersome and is over compliance resulting in increased cost of compliance for a Private Company. According to sub-section (1) of section 184 of the Act, a director in every company is required to disclose their interest including shareholding in the company/ companies / body corporate / associations / firms before the first Board meeting of every financial year and any change in the interest thereafter. The Board has to take note of each such disclosure and file the same with the Registrar in terms of Rule 8(5) of Companies (Meetings of Board and its Powers) Rules, 2014 read with section 179(3) (k) and 117 (3) (g) of the Act. Filing of noting of disclosure by directors on every change in interest is over regulation and compliance resulting in increased cost of compliance. The section provides that where a company gives loans and advances exceeding specified limits, it has to comply with the provisions of this section. Private Companies are closely CA. Pramod Jain The Exemption should be: Nothing in Rule 8 of Companies (Meetings of Board and its Powers) Rules, 2014 and section 179(3) be applicable to a Private Company which is not a subsidiary of a Public Company only to the extent of filing of resolutions with Registrar under section 117 of the Act. The Exemption should be: Nothing in sub-rule (5) of Rule 8 of Companies (Meetings of Board and its Powers) Rules, 2014 be applicable to a Private Company which is not a subsidiary of a Public Company only to the extent of filing of resolutions with Registrar under section 117 of the Act. The Exemption should be: Nothing in section 186 is applicable to a Private Company which is not a subsidiary of a Public Company.
8 7 Chapter X, Sub-section (1) of Section 139 read with Explanation to sub-rule (7) of Rule 3 of Companies (Audit and Auditors) Rules, Chapter X, Sub-section (12) of Section read with Rule 13 of Companies (Audit and Auditors) Rules Rule 3 (7) and Rule 6 (1) of Companies (Incorporation) Rules, 2014 held companies, where normally family and friends join together in a corporate structure to do business. Restrictions to use own fund is unwarranted for closely held companies and unnecessary over compliance is very cumbersome resulting in increased compliance costs. Appointment of auditor is for 5 years and is to be ratified annually in AGM. The Explanation to Rule 3(7) states that where the shareholders do not ratify in an AGM, the Board shall appoint another auditor. This is in total contrast with the intent of section 141, which requires prior approval of Central Government and special resolution to remove an auditor before his office While Reporting fraud during the conduct of an audit, an auditor has to report the fraud to the Central Government. However, concept of materiality was be not considered while framing reporting requirements. This would result in harsh penalties on auditors of not reporting small frauds of even Rs. 10/- A One Person Company (OPC) has to compulsory convert if its turnover exceeds Rs. 2 Crores. The limit of turnover of Rs. 2 Crores is very low, even a Explanation to sub-rule (7) of Rule 3 of Companies (Audit and Auditors) Rules, 2014 should be deleted and substituted as under: Explanation.- For the purposes of this rule, it is hereby clarified that, if the appointment is not ratified by the members of the company, the auditor shall be deemed to be remain in office until the expiry of his term of office or unless expressly removed as per the procedure laid down in this behalf under the Act Materiality concept should be brought in the reporting of fraud in the relevant Rules. Materiality may be defined as: fraud(s) that is or are happening frequently; or fraud(s) where the amount involved or likely to be involved is not less than five percent of net profit or two percent of turnover of the company for the preceding financial year Rules 3 (7) and Rule 6 (1) of Companies (Incorporation) Rules, 2014 should be amended to make compulsory conversion of OPC only when the turnover exceeds Rs. 10 Crores.
9 10 Chapter I, Section 2(85)(ii) 11 Rule 7 of Companies (Registration Offices and Fees) Rules, Chapter XXIX, Section 455(5) small retailer s turnover would exceed this limit within few months. OPC concept would be a non-starter. The said provision provides that a company would be a small company if its turnover does not exceed Rs. 2 Crores or such higher amount as may be prescribed which shall not be more than Rs. 20 crores. However, the Rules do not prescribe any such limit, resulting in a company having turnover exceeding Rs. 2 Crore shall not be a small Company. This limit is very low looking at the current inflation and most of the companies even though Private Companies, would not be Small Company. Mandatory requirement of Address of director in every document signed by him should be done away with as many documents do not contain enough space and it just increase the documentation. Every Dormant company is required to file an annual return and pay annual fee. As per the table of fee the annual fee is many times the normal filing fee. For example where the authorized capital of a company exceed Rs. 10 crores, the annual filing fee is Rs /-. Such company is not having any significant transactions, hence if it files as a normal company, its annual filing would be only Rs. 1200/- CA. Pramod Jain Necessary Rule should be inserted in Companies (Specification of definitions details) Rules, 2014 to prescribe that the limit of turnover in for the purpose of section 2(85)(ii) be Rs. 10 Crores. This would also be in line with the limit of OPC. Applicability of this rule is leading to overburden to the directors as mentioning of DIN is sufficient. The annual filing fee for a dormant company should be less than the two filings mandatory when filed by a normal company i.e., less than Rs. 1200/-. If the filing fee is high, rarely a company would voluntarily opt to apply to be dormant.
10 CA. Pramod Jain P/o M/s Lunawat & Co. A-2/132, Prateek Apartments Paschim Vihar, New Delhi Contact:
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