Sd not allowed under Companies Act , 2013

Henceforth Sd/- not allowed for ROC filing purpose:

As per Rule 8(6) of the Companies (registration Offices and Fees), Rules, 2014  

'Scanned image of documents shall be of original signed documents relevant to the e-forms or forms and the scanned document image shall not be left blank without bearing the actual signature of authorised person'.

The professional , who carried out annual filing of the clients shall ensure upload the e forms only  signed documents  as attachment.

Secretarial Audit

Secretarial Audit for Big Companies is introduced Under Companies Act, 2013. Section 204 of the ACT Specifying the applicability of the Audit. Here is list  of first set of required documents from the client before the commencement of the Secretarial Audit :-

1.Latest Memorandum of Association & Articles of Association and Annual Report.

2.Notice of all the Meetings.  if notice is sent through electronic mode, email Copy sent to the Directors of the Company.

3.Minutes of the Board Meetings.

4.Minutes of the Audit Committee Meetings.

5.Minutes of the Stakeholder Relationship Committee.

6.Minutes of the Nomination and Remuneration Committee Meetings.

7.Minutes of Corporate Social Responsibility Committee.

8.Minutes of all other Committee Meetings, if any.

9.Minutes of Annual General Meeting as well as Extra Ordinary General Meetings.

10.Notice and Minutes of Resolutions passed through postal ballot process.

11.Notice and Resolutions passed through circulations.

12.All the Statutory Registers.

13.Any Disclosure Received from Directors in accordance with Section 184 of the Companies Act, 2013. (Form MBP-1 of all directors).

14.Auditors Consent for Appointment/Re-appointment.

15.Letters under Section 164(2) read with Rule 14(1) from the Directors(DIR-8).

16.Copies of Form CHG 4 (Satisfaction of Charge) and CHG 5(Memorandum of Satisfaction of Charge).

17.Correspondence file with the Registrar of Companies.

18.Correspondence file with the Stock Exchanges.

19.Correspondence file with the Directors of the Company.

20.Annual General Meeting File if any.

21.Details of Complaints received from shareholders.

22.Compliance of Clause 16, 17, 20, 35,35B, 41 and 49 of the Listing Agreement.

23.Statement of Account of Remuneration & other benefits  paid to the Directors.

24.Any Remuneration paid to any relative of Director as per Section 188 of the Companies Act, 2013

25.Statement of Account of Sitting Fees paid to the Directors.

26.Statement of Account of Loans and Advances given.

27.Statement of Account of Investment made.

28.Investments made/ Fixed Assets Purchased are they in Company’s name?

29.Statement of Account of Loans and Advances taken, whether secured or unsecured.

30.Details of Public Deposit Accepted, if any.

31.Details of surety or guarantee provided. if any.

32.Details of Amounts transferred to Investor and Education Protection Fund(IEPF).

33.Statements of Dividend Reconciliation.

34.Any Show Cause Notice received from ROC / Stock Exchanges / SEBI.

35.Details of Compliance of Code of Conduct in terms of the Insider Trading Including Closing of Trading windows.

36.Details of Compliance of Take Over code in terms of SAST Provisions.

37.Whether any Loan or guarantee given to foreign subsidiary or Joint venture company.

38.Details of Stock option given to the employees of the Company.

39.Details of Stock option Converted into equity shares of the Company.

40.Any issue of Capital (Right issue, Preferential Issue, Bonus Issue, IPO/FPO), Details of it.

41.List of Other Laws applicable specifically to the Company and Compliance Mechanism of the same.

42.Agreement between the Company and Registrar and share Transfer Agent.

43.The details of Compliance Mechanism of Labour Laws i.e. for examining and reporting whether the adequate systems and processes are in place to monitor and ensure compliance with general laws like Labour laws, Competition law, Environmental laws.

Related Party Under Companies Act 2013

Related party is defined  u/s. 2(76) Companies act, 2013:

The following persons are related parties to the company:

- a director
- a relative of such director

- a KMP
- a relative of such KMP.

- a firm where such director is a parter.
- a firm where relatives of such director is a partner.

- a private limited co where such director is a director.
- a private limited co where such director is a member.

- a public limited co where such director is a director.

- a public limited co where such director along with relatives holds more than 2% of its paid-up capital.

- any body corporate acts in according to the direction of board of directors/director.

- its holding company, a subsidiary company or associate company.

- any other subsidiary company of its holding company, if any.

Note:

** based on above definition the following companies are not related parties:

- a public company where relative of such director is a director.

- a public company where relatives of such directors holds any % of paid up capital. (Provided such director should not hold any share/directorship).

** though JV is not mentioned in the definition. JVs may fall under the term ssociate company or management control. So JV is also a related party.

Non-government /Non -profit organisation under Companies Act 2013

Non Government Organisation / Non Profit organisation

Section 8 of Companies act, 2013:

1. The central govt allows certain persons to get registered under this section as Limited company:

- if its object is promoting commerce, art, science, sports, religion etc.,

- aiming to apply its profits to promote its objects.

- intent to prohibit payment of divided.

2. No addition of word  "limited" r "private limited" as  last word in its name.

3. A FIRM/PARTNRRSHIP CAN BE ADMITTED AS A MEMBER of section 8 company.

4. Alternation MOA/AOA require Central Govt approval. (Powers delegated to ROC).

5.  Section 8 company can be amalgamated only  with another section 8 company having SIMILAR OBJECTS.

6. In case of winding up, surplus if any should be transferred to "REHABILITATION AND INSOLVENCY FUND".

Note:

** section 8 companies get benefits similar to NGOs registered under Trust act, societies registration act.,

** partnership firm can become a member. This is not possible in any other type of company registered under companies act, 2013.

** Amalgamation is possible only with similar objects and not any other objective though it falls under section category.

** On winding up surplus should be deposited with CG and not distributed among members. However, remaining assets can be transferred to another sec. 8 co with CG approval.

Key benefits of SECTION 8 COMPANY:

1. Certain Privilege under companies act, 2013.

2. Non- application of CARO REPORT, 2003.

3. REGISTER firm can be a member.

4. Tax deduction for donars to the company under 80G of Income  tax act, 1961 with certain restrictions.

5. Section 8 companies are not chargeable under wealth act, 1957.

Note:
please send me other benefits if you know.

**section 8 Companies are not required to have minimum paid - up capital. ( this point i do not hav a legality to prove, if you knows kindly quote a section).

COMMENCEMENT OF BUSINESS

Section 11 of Companies Act, 2013

COMMENCEMENT OF BUSINESS:

1. A company having share Capital shall commence its business nd borrowing powers only:

- after filing declaration by the director in Form INC- 21.

- Directors should ensure that subscribers of MOA has paid the value of shares agreed to be taken by him.

- further ensure that the company has filed Form INC-22 within prescribed time of its Incorporation.(i.e., filing verfication of registered office)

- if company requiring registration from regulators like RBI, SEBI, IRDA etc., such approval should be obtained.

2. Such declaration in Form INC - 21 should be filed within 180 days from the date of incorporation.

3. In case of default in filing, Registrar can take action under sec. 248 of companies act, 2013 to remove the name of the company (striking off)  from the Register of Companies.

Note:

** section 11 applies both public and private limited companies having share capital.

** Registrar can take action to remove name of the company u/s.248:

- when company fails to commence its business within one yr of its incorporation, or

- does not compiled sec. 11(1)  (i.e., default in filing INC- 21 within 180 days of its incorporation)

Proportional representation for appointment of directors

This is one of the method of electing a director in a company.. Previously it was oly for public cos. As per new Act, its applicable for all cos but still remains as non mandatory provision..
The rationale behind this section is to instill the democracy in corporates as well
Its genesis is from UK parliament and of course in our parliament.. And thereby they have incorporated the same in CA 1956 vide sec. 265..
Let me give eg to understand this..
As the section states there are 2 methods mainly- Single transferable voting and Cumulative voting.. U can also employ any other method but everything sld b authorised in articles..
Suppose if u hold 300 shares in a company and there are 4 directors to b elected.. Then you are eligible to put 300*4 = 1200 votes .. U can use all these votes for single candidate or u can divide ur votes among the candidates.. This is as per cumulative voting
So there is reduced scope for promoters or majority shareholders' clout to nominate their persons as directors..
As per single transferable voting u r eligible for 1 vote per person irrespective of shareholding..
: These methods can b done only once in 3 years and pls note that the respective director cannot b removed during his tenure..
So under single voting system , as stated earlier if there are 4 directors to be elected.. And there are 2 shareholders A and B in that company means A is eligible to appoint 2 directors and B is eligible to appoint 2 directors.. Under cumulative means if A holds 76% and B holds 24% means- A can appoint 3 directors and B can appoint 1 director..
: Thereby under both the methods the minority interests are protected n democracy is upheld..
Also pls note that the election sld b for minimum of 2-3 rds of directors..
Section 163 of the Companies Act, 2013.

>>>>>>>>>>>>>>>>>
The above article is written by Mr.Annirudh, ACS, LLB, Corporate law expert from Chennai.

Memorandum of the company under Companies Act, 2013

As per Section 4 of Companies Act, 2013 the memorandum of the a company shall state the following clauses

a) Name of the company should carry last word "Limited" or "Private Limited" in case of public or private limited company respectively. However this clause does not applies to companies registered under  section 8.
b) Situation clause
c) Object clause, objects are need not to divide into main, ancillary
d) Liability clause and
e) Capital clause, incase of one person company , nominee name should mention and he will became member of the company in the event of death of the subscriber.

Formats for MOA is available in Table A, B, C, D, and E in SCHEDULE I as may be applicable to such company.

Maintaining Registers outside the registered office

As per section 94 & 95 of Companies Act, 2013

Registers specified u/s 88 and copies of the annual return maintained u/s 92 shall be kept at registered office of the company.

However, the aforesaid registers can be kept at anyother place in india otherthan registered office in which more than 1/10 th of total members reside and by passing SPECIAL RESOLUTION  by the company.

The registers and copies of all returns shall be open for inspection for Members,Security holders during business hours without paying any fee. If any other persons can inspect registers by paying prescribed fee.

According to Sec 95, registers and returns shall be treated as PRIMA FACIE evidence before court of laws for anything directed or authorised in that documents.

Forms under Companies Act 2013

39 new forms from 14/04/2014 plz read the same

First new form name is given then its purpose is mentioned and corresponding old forms details which we use to file

1.       INC-1 Application for reservation of name – old form  1A

2.       INC-2 OPC- Application for Incorporation - New form

3.       INC-3 OPC- Nominee consent form - New form

4.       INC-4 OPC- Change in Member/Nominee - New form

5.       INC-5 OPC- Intimation of cessation - New form

6.       INC-6 OPC- Application for Conversion - New form

7.       INC-7 Incorporation of Co. (Other than OPC) 1

8.       INC-18 Application to Regional director for conversion of section 8 co.

into any other kind of co. - New form

9.       INC-20 Intimation to Registrar of revocation/surrender of license issued u/s 8  - New form

10.   INC.21 Application for commencement of business old form  19, 20

11.   INC-22 Notice for situation or change of situation of registered office old form 18

12.   INC-23 Application to Regional director for approval to shift the registered office from one state to another state or from jurisdiction of one registrar to another within the state - old form 1AD,24AAA

13.   INC-24 Application for change of name old form -  1B

14.   INC-27 Conversion form Pvt. To public or vice-versa old forms -  1B, 62

15.   INC-28 Notice of order of the Court or Tribunal or any other competent authority - old form 21

16.   PAS-3 Return of allotment - old form 2

17.   SH-7 Notice to Registrar for alteration of share capital - old form 5

18.   SH-8 letter of offer - New form

19.   SH-11 Return in respect of buy back of securities - old form 4C

20.   CHG-1 Application for registration of creation or modification of charge (other than debentures) - old form 8

21.   CHG.4 Particulars of satisfaction of charge - old form 17

22.   CHG-6 Notice of appointment or cessation of receiver or manager - old form 15

23.   CHG-9 Application for registration of creation or modification of charge in case of debentures - old form 10

24.   MGT-14 Filing of Resolutions and agreements to the Registrar under section 117 - old form 23

25.   DIR-3 Application for allotment of Director Identification Number - old form  DIN 1

26.   DIR-5 Intimation of change in particulars of Director to be given to the Central Government  - old form DIN 4

27.   DIR-7 Notice of resignation of a director to the Registrar - NEW FORM

28.   DIR-8 Particulars of appointment of directors and the key managerial personnel and the changes among them - Form 32, 32AD

29.   MR-1 Return of appointment of managing director or whole time director or manager - Form 25C

30.   MR-2 Form of application to the Central Government for approval of appointment or reappointment and remuneration or increase in remuneration or waiver for excess or over payment to managing director or whole time director or manager and commission or remuneration to directors - old form 25A

31.   URC-1 Application by a company for registration under section 366 - Old Form 37, 39

32.   FC-1 Information to be filed by foreign company - old form  44

33.   FC.2 Return of alteration in the documents filed for registration by foreign company - old form 49, 52

34.   FC.3 List of all principal places of business in India established by foreign company - old form 52

35.   FC.4 Annual Return - old form  PTII

36.   ADJ Memorandum of Appeal New form  - new form

37.   MSC-1 Application to ROC for obtaining the status of dormant company - new form

38.   MSC-3 Return of dormant companies -  New form

39.   MSC-4 Application for seeking status of active company - new form

Quorum of the general meetings under Companies Act 2013

As per Section 103 of companies act, 2013, The Quorum for general meetings:

In case of public company, quorum shall be as follows:

1. Five members personally present if total number of members as on general meeting is less than 1000.

2. Fifteen members personally present if total number of members as on general meeting is morethan 1000 but upto 5000.

3. Thirty members personally present  if the total number of members exceeds 5000 as on date of such convened meeting.

In case of private company:

Two members personally present is enough.

Note: above number of members personally present for want to quorum shall be increased subject to approval only.

Articles of Association of the Company can mention higher number of members for want of quorum than it is given in sec 103.

Maximum Number of directorships under Companies Act, 2013

As per section 165 of Companies Act, 2013

After notifying this section, a person  can hold office as a director in 20 companies maximum.

1. In the aforesaid limit he/she can hold office maximum in 10 public ltd companies.

2. For counting public ltd companies, even pvt ltd companies also taken for count if it is subsidiary or holding of public ltd company.

3. For calculating maximum limit alternative directorships also be counted.

4. Any person is in director if any person is already a director more than the above specified limit, then he/she has to regularise his directorship within one year from the commencement of this Act.

Notice of the General meeting under Companies Act, 2013

As per sec. 101 of Companies Act, 2013 notice for general meetings shall serve as follows:-

1. 21 days clear notice is required in writing or through electronic mode is required for convening general meeting.

2. Notice of every meeting shall be send to every member, auditors and directors of the company.

3. A meeting can be convened with shorter notice if consent is given in writing or through e-mode by not less than 95% of members entitled to vote such meeting.

4. Notice shall specify the place, date, day and the hour of the meeting and shall contain the agenda of the meeting.

Issue of share certificates under companies Act 2013

As per the sec 56 (4) of Companies Act,2013

Share certificates to be delieverd within:

1. Two months from the date of incorporation in case of subscribers to MOA.

2. Two months from the date of further allotment of shares.

3. Within one month in case of transfer or transmission of shares.

Note: In case shares dealt with depository the company should intimate allotment of shares immediately on such allotment.

CSR RULES & effective date

MCA has Notified CSR related provisions of the Companies Act, 2013, has Amended Schedule VII and has also notified CSR Rules.

 

(Section 135, Amended Schedule VII and CSR Rules to come into force from 1st April, 2014)

1.       MCA, vide Notification dated 27th February, 2014, has notified Section 135 and Schedule VII of the Companies Act, 2013 (provisions relating to CSR) which shall come into force from 1st April, 2014.

2.       MCA, vide Notification dated 27th February, 2014, has notified the Companies (Corporate Social Responsibility Policy) Rules, 2014. These Rules shall come into force on 1st April, 2014.

3.       MCA, vide Notification dated 27th February, 2014, has made amendments to Schedule VII of the Companies Act, 2013. The notification shall come into force with effect from 1st April, 2014.