SECTION-WISE ANALYSIS OF COMPANIES (AMENDMENT) ACT, 2017 Companies (Amendment) Bill, 2017 has been passed by Lok Sabha on 27-7-2017 and by Rajya Sabha on 19-12-2017. Following are the major changes made by the Amendment Act : u Partnership firm with two or more partners can be converted into a private company [presently, partnership must have at least seven partners for conversion into a company] - Section 366. u Provisions relating to private placement of shares streamlined - Section 42. u If company provides facility to members to vote by electronic means under section 108, postal ballot is not required [very practical provision indeed] - Section 110. u Size of Board report reduced as some information can be given on company s website and only its reference in Board report is required. u Capital and turnover limit of small company enhanced - Section 2(85) u Ratification for appointment of auditors is not required at every AGM when auditors have been appointed for five years - Proviso to section 139(1) omitted. u No approval of Central Government is required in case of managerial remuneration. All existing applications with Central Government for approval will abate - Section 197. u If document under section 92 (Annual Return) or 137 (financial statement) is not filed with Registrar in time, minimum additional fees of Rs. 100 per day are payable. This fee can be higher for large companies - Section 403. u Some drafting mistakes have been rectified. A Section-wise Guide to changes made by the Companies (Amendment) Act, 2017 is given below : ix
S. 2(49) SECTION-WISE ANALYSIS OF COMPANIES (AMDT.) ACT, 2017 x SECTION 2(6) ASSOCIATE COMPANY [SEC. 2(6)] Amended Explanation to section 2(6) is as follows u u The term significant influence means control of at least 20% of total voting power or control or participation in business decisions under an agreement. Joint Venture means a joint arrangement whereby the parties that have joint control of the arrangement have rights to the net assets of the arrangement. SECTION 2(28) COST ACCOUNTANT [SEC. 2(28)] It is clarified that the Cost Accountant must have valid certificate of practice under section 6(1) of Cost and Works Accountants Act [This was provided in various sections. Now, it is provided in main definition section itself. Thus, practically, there is no change in statutory provisions]. SECTION 2(30) DEBENTURE [SEC. 2(30)] Debentures will not include instruments referred to in Chapter III-D of RBI Act. Further, other instruments as notified by Central Government in consultation with RBI will not be debentures for purpose of Companies Act, 2013. SECTION 2(41) CHANGE OF FINANCIAL YEAR [SEC. 2(41)] Financial year of a company can be changed if holding or subsidiary is outside India. This facility is now available in case of associate company also. SECTION 2(46) HOLDING COMPANY [SEC. 2(46)] This concept has been extended to any body corporate. So far it was applicable only in case of a company. A body corporate can be holding or subsidiary company. SECTION 2(49) INTERESTED DIRECTOR [SEC. 2(49)] The definition is being omitted, possibly because the conditions are already specified in section 188. The definition under section 2(49) was too broad.
xi SMALL COMPANY - DEFINITION WIDENED S. 2(85) SECTION 2(51) KEY MANAGERIAL PERSONNEL [SEC. 2(51)] KMP can include an officer one level below the level of directors, who is wholetime employee of the company and who is designated as KMP by Board. SECTION 2(57) NET WORTH [SEC. 2(57)] The net worth will include debit and credit balance in profit and loss account. Thus, one major lacuna in definition has been removed. SECTION 2(71) PUBLIC COMPANY [SEC. 2(71)] The word and has been added to clarify that public company should not be a private company and has minimum paid up share capital [Only correction of a drafting mistake. This was even otherwise clear]. SECTION 2(72) PUBLIC FINANCIAL INSTITUTION [SEC. 2(72)] It is clarified that a company incorporated under Companies Act cannot be notified as PFI (Public Financial Institution). SECTION 2(76) RELATED PARTY [SEC. 2(76)] The definition has been widened to include body corporate (a) which is holding, subsidiary or associate company of such company (b) a subsidiary of a holding company to which it is also a subsidiary (c). It will also cover investing company or the venturer of a company i.e. a body corporate whose investment in the company would result in the company becoming an associate company of the body corporate [i.e. at least 20% voting power]. SECTION 2(85) SMALL COMPANY - DEFINITION WIDENED [SEC. 2(85)] Eligibility criteria to term a company as small company is proposed to be liberalised. The paid up capital can be prescribed upto Rs. ten crores and turnover as per immediately preceding financial year can be prescribed upto Rs. one hundred crores by a notification. This is only an enabling provision. Further, it is clarified that only turnover of previous financial year is required to be considered.
S. 12(1) & 12(4) SECTION-WISE ANALYSIS OF COMPANIES (AMDT.) ACT, 2017 xii SECTION 2(87) SUBSIDIARY COMPANY - VOTING POWER RELEVANCE [SEC. 2(87)] Present definition states that a company will be subsidiary if the other company holds or controls more than 50% of total share capital on its own or with one or more of its subsidiaries. Now it is clarified that total voting power will be considered and not total share capital. Thus, preference share holding will be considered only if payment of dividend is in arrears for more than two years. SECTION 2(91) TURNOVER [SEC. 2(91)] The present definition means aggregate value of the realisation of amount. It is now changed to gross amount of revenue recognised in profit and loss account from sale, supply or distribution of goods or on account of services rendered, or both, by a company during a financial year. SECTION 3A EFFECT IF NUMBER OF MEMBERS FALL BELOW 2 OR 7 FOR PERIOD EXCEEDING SIX MONTHS [SEC. 3A] Section 3A is being inserted in Companies Act, 2013 to clarify that if number of members falls below specified number, and if business is carried out for more than six months, every member who was cognisant of the fact will be severally liable for payment of whole debts of the company contracted during that time. They can be severally sued for such debts. SECTION 4(5)(i) RESERVATION OF NAME [SEC. 4(5)(i)] The section is amended to provide that name will be reserved by Registrar only for 20 days from date of approval or such other period as may be prescribed (present period is 60 days). If application is to change name of existing company, the name will be reserved for 60 days from date of approval. SECTION 7(1)(c) DECLARATION INSTEAD OF AFFIDAVIT - INCORPORATION OF COMPANY [SEC. 7(1)(c)] Declaration from each subscriber is sufficient that he is not guilty of any fraud or misfeasance under Companies Act and all documents filed are correct. Affidavit is not required [ease of doing business]. SECTION 12(1) AND 12(4) REGISTERED OFFICE OF COMPANY [SEC. 12(1) AND 12(4)] Intimation of registered office or change of registered office should be filed within 30 days [present limit 15 days].
xiii PRIVATE PLACEMENT S. 42 SECTION 21 AUTHENTICATION OF DOCUMENTS PROCEEDINGS AND CONTRACTS [SEC. 21] Authentication can be done by Key Managerial personnel or any officer or employee authorised by Board [The word employee has been added]. SECTION 26 MATTERS TO BE STATED IN PROSPECTUS TO BE AS PER SEBI REGULA- TIONS [SEC. 26] Prospectus shall contain reports on financial information as specified by SEBI in consultation with Central Government. Till SEBI specifies the information and reports for financial information, information as required under SEBI Regulations shall be provided [Even otherwise it was obvious]. Contents of Prospectus as contained in section 26(1)(a), (b) and (d) have been omitted. [Anyway, this was duplication as these details were already contained in SEBI Regulations]. SECTION 35 CIVIL LIABILITY OF MISSTATEMENTS IN PROSPECTUS [SEC. 35] Section 35(2)(c) is inserted to provide that a person will not be liable for misstatement if he establishes that he had reasonable ground to believe in truthfulness of the statement. The person making the statement was competent to make that statement and consent was not withdrawn. SECTION 42 PRIVATE PLACEMENT [SEC. 42] This section has been completely replaced by new section but there does not appear to be any major change in the provisions. The earlier section 142 did not specifically state that private placement should be only to identified persons, though it was implied in earlier section 42(7) also. Further, more than one issue of securities can be made to each class of identified persons. A company (private or public) can issue shares on private placement basis - section 42(1) of Companies Act, 2013. Private placement means any offer or invitation to subscribe or issue of securities to a select group of persons by a company (other than by way of public offer) through private placement offer-cum application which satisfies the conditions specified in section 42 of Companies Act, 2013 - Explanation I to section 42(3) of Companies Act, 2013 (as amended) Such private placement can be made to maximum 50 identified persons or higher number prescribed (by notification) in a financial year, excluding (a)
S. 42 SECTION-WISE ANALYSIS OF COMPANIES (AMDT.) ACT, 2017 xiv Qualified Institutional Buyer (QIB) [QIB as defined in SEBI (ICDR) Regulations] (b) employees under stock option scheme under section 62(1)(b) of Companies Act, 2013 - Section 42(2) of Companies Act, 2013. More than one issue of securities can be made to each class of identified persons as may be prescribed within limit of maximum number of identified persons - proviso to section 42(5) of Companies Act, 2013. If offer is to more than prescribed number, it will be a deemed public offer, whether or not the company intends to list its securities on a stock exchange. In such case, all provisions relating to public offer shall have to be complied with - Explanation III to section 42(3) and section 42(11) of Companies Act, 2013 (as amended). [The provisions are fallout of decision in Sahara India Real Estate Corpn. Ltd. v. SEBI (2012) 115 SCL 478 = 25 taxmann.com 18 (SC) = (2013) 1 SCC 1. In this case the company argued that 50 persons limit is 50 at a time (that time the word in financial year were not there). It was also argued that company does not intend to list the shares on any stock exchange. Supreme Court observed that when listing is compulsory, you cannot intend something which is contrary to law]. No fresh offer shall be made unless allotment made earlier has been completed or withdrawn - section 42(5) of Companies Act, 2013. All money should be received by cheque or draft on banking channel but not by cash - section 42(4) of Companies Act, 2013. Moneys received on application shall be kept in a separate bank account till adjusted towards allotment or refunded - proviso to section 42(6) of Companies Act, 2013. The money shall not be utilised unless allotment is made and return of allotment is filed with Registrar. Allotment must be made within 60 days. If not made within 60 days, amount should be refunded within 15 days. Otherwise, interest @ 12% will be payable. The money shall be kept in a separate bank account, either for allotment or for repayment - proviso to section 42(6) of Companies Act, 2013. The offer shall be made to specific persons by name and complete information and record of such offer shall be filed with ROC within 30 days of circulation of private placement offer - section 42(7) of Companies Act, 2013. No advertisement through media, marketing or distribution channels or agents shall be made of such offer - section 42(7) of Companies Act, 2013. Return of allotment with complete details of security holders shall be filed with Registrar - section 42(8) of Companies Act, 2013. Contravention can attract penalty equal to amount involved in the offer or Rs. two crores which is lower on promoters and directors. Further, company shall repay all moneys to subscribers - section 42(10) of Companies Act, 2013.