Saturday, May 10, 2014

Company Law Matters Requiring Immediate Attention of the Management

You must be aware that the new Companies Act 2013 has come into force and has brought with itself a number of amendments that require urgent attention and compliance on part of the management. The following are a few matters requiring immediate attention to avoid penalties and prosecution under law.

        Important Changes

1.       Every company is mandatorily required to mention its Corporate Identification Number (CIN) along with registered office address on all letter heads, invoices and on all other official correspondence and publications. Additionally, contact details, email and website address, if any, must be incorporated in such documents from 1st April, 2014.
2.       The Companies (Acceptance of Deposit) Rules, 2014, applicable from 1st April 2014, prohibit bringing money into private limited companies from shareholders and directors’ relatives or friends as unsecured loan. All companies with such unsecured loans and deposits must refund these amounts immediately. Both Private and Limited companies can accept unsecured loan or deposit from Directors of the company provided further that such amount is not a borrowed amount.
3.       The Act has brought in the need to disclose all such amounts pending as unsecured loans from such persons to the ROC by 30th June, 2014. Such amounts must also be repaid with interest by 31st March, 2015.
4.       Private Limited Companies which have borrowed money in excess of their paid up capital and free reserves are required to pass a special resolution under which the members have to decide the limits up to which the company can borrow.
5.       Inter-corporate loans can be accepted from other bodies corporate and not from any other person. Associate firms cannot freely with or without interest transfer funds from one company to another. However, loan from a holding company to its subsidiary is allowed as inter-corporate loan.
6.       A company cannot advance any kind of loan/guarantee/security to any Director, Director of holding company, his partner, his relative, firm in which he or his relative is partner, private limited company in which he is Director or Member, or any bodies corporate whose 25% or more of total voting power or Board of Directors is controlled by him.

Other Procedural Changes

7.       A new format has been prescribed for maintaining the Register of Members. Companies are now required to mention PAN, Email ID and other particulars of the members besides particulars of share capital or debentures. This record is required to be updated by 30th September, 2014.
8.       One Person Company is a Private Company having only one Member and at least one Director. There is no compulsion on it to hold an AGM. Existing private companies with paid-up capital up to Rs 50 lakhs and turnover up to Rs 2 crores can be converted into OPC subject to fulfillment of all requirements with regard to conversion.

9.       The Annual Return of companies will contain the following additional details:
·         Remuneration of directors and key managerial personnel
·         Principal business activities
·         Particulars of its holding, subsidiary and associate companies
·         Details of Board meeting, shareholder meetings along with attendance details
·         Penalty or punishment imposed on the company, its directors or officers and details of compounding of offences
·         An extract of the Annual Return will form part of the Directors’ Report
10.   Annual Return of listed companies and of every company having paid-up capital of Rs.10 Crores or more or turnover of Rs.50 Crores or more are required to get certified the same from Practicing Company Secretary.
11.   A minimum 7 days’ notice must be given for all Board Meetings and the same should be either hand-delivered or sent by post, e-mail or fax. It must be noted that in case a particular mode has been prescribed by a Director, it should be sent to him in that mode.
12.   The Board Meeting can be convened through video conferencing. There are separate guidelines for video conferencing. For example, entry should be through a secured gateway and proceedings should be recorded and kept in safe custody.
13.   The draft minutes of the meeting shall be circulated among all the Directors within fifteen days of the meeting either in writing or in electronic mode.
14.   The office of a Director shall become vacant if he absents from all the meetings of Board of Directors held during a period of 12 months with or without seeking leave of absence or where he fails to disclose his interest in any contract or arrangement in which he is directly or indirectly interested.
15.   Discussion on matters relating to approval of annual accounts and approval of Directors’ Report shall have to be held in a physical meeting.
16.   The Directors’ Report shall contain additional information related to:
·         Inter-corporate loans
·         Related party contracts
·         Extracts of Annual Return
·         Risk Management
17.   Earlier, in case companies having paid up share capital of Rs. 1 crore or more wanted to enter into related party transactions, they had to obtain prior approval from the Central Government. In the new Act, this condition of prior approval has dispensed with and now the Companies are required to take permission of the Board provided the transactions are made on an arm’s length basis. The transitional exemption was just Rs. 5000 earlier, but has now been increased to Rs. 5 Lakhs in a year.
18.   If a company wishes to take up another business activity which is not included in its Main Objects, it will have to alter its Main Objects and include such activity under the head. The procedure of passing a resolution to carry out an activity as mentioned in the Other Objects without including it in the Main Objects will not suffice.

19.   Every company must have a Director who has stayed in India for a period of 182 days or more in the previous calendar year. For existing companies, such compliance must be made before 31st March, 2015.

  Contributed By MS Tanya Gagneja and Ms Puja Aggarwal