Companies Act, 2013Analysis of 98 sections

effective 12.09.2013

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Companies Act, 1956 Companies Act, 2013

• It was introduced on 1st April, 1956.

• It has 658 Sections and 15 Schedules.

• It extends to the whole of India (Sikkim has its own Companies Act).

Companies Bill passed by the Lok-Sabha on 18th December, 2012.

Rajya Sabha passed it on 8th August, 2013 by voice vote

29th August-President’s Assent; 30th August-Gazette Notification

The Bill has 470 Clauses (309 pages), 29 Chapters, 7 Schedules and 29 Rules

It applies to the whole of India.

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Chapter – IPreliminary

• Sections ranging from 1 to 2 • Total 2 sections• On 30th August 2013, Ministry of Law and Justice issued

a notification regarding the Companies Act, 2013 immediately after it received assent of President of India. Only section 1 of the Act of 2013 came into effect from that day. Section 1 as usual deals with short title, extent, commencement and application

• The 2nd section deals with the definition clauses• Out of 95 definitions, 83 definitions (in which 26 are

new definitions) have been notified w.e.f. 12.09.2013

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Definitions-Section 2• The following definitions given against each clause, become

applicable: 1: abridged prospectus 3: alteration 4: appellate tribunal 5: articles 6: associate company 8: authorised capital (new) 9: banking company 10: board of directors or board 11: body corporate or corporation 12: book and paper and book or paper

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Definition Continued……

14: branch office 15: called-up capital (new) 16: charge (new) 17: chartered accountant (new) 18: chief executive officer (new) 19: chief financial officer (new) 20: company 21: company limited by guarantee 22: company limited by shares

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Definition Continued…. 24: company secretary

25: company secretary in practice 26: contributory 27: control (new) 28: cost accountant (new) 29: Court (except sub clause iv which talks about special courts) 30: debenture 32: depository 33: derivative

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Definition Continued 34: director 35: dividend 36: document 37: employees’ stock option 38: expert (new) 39: financial institution (new) 40: financial statement (new) 43: free reserves 44: global depository receipt (new) 45: government company

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Definition Continued 46: holding company 49: interested director 50: issued capital (new) 51: key managerial personnel (new) 52: listed company 53: manager 54: managing director 55: member 56: memorandum 57: net worth

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Definition Continued

58: notification (new) 59: officer 60: officer who is in default 61: official liquidator 63: ordinary or special resolution (new) 64: paid up share capital (new) 65: postal ballot (new) 66: prescribed

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Definition Continued….68: private company 69: promoter (new) 70: prospectus 71: public company 72: public financial institution 73: recognised stock exchange 74: register of companies (new) 75: registrar 76: related party 77: relative

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Definition cont…….

78: remuneration 79: schedule 80: scheduled bank 81: securities 82: securities and exchange board 84: share 86: subscribed capital (new) 87: subsidiary company or subsidiary

(except the proviso and explanation (d))

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Definition Continued

88: sweat equity shares 89: total voting power 90: tribunal (new) 91: turnover (new) 92: unlimited company (new) 93: voting right (new) 94: whole time director (new) 95: words & expressions borrowed from

SCRA, SEBI and Depositories Act…

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Chapter – IIIncorporation

• Sections ranging from 3 to 22 • Total 20 sections• Out of which 3 sections have been made

applicable from 12.09.13• The notified sections are 19,21,22.

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Subsidiary Co. not to hold shares in its holding Company

New Act (section 19)• Subsidiary company shall

not hold shares in its holding company (exceptions provided in 19(1)(a),(b),(c)) and

• No holding company shall allot or transfer its shares to any of its subsidiary companies.

Old Act (corresponding 42)

• Membership of holding company –No major change

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Authentication of documents, proceedings and contracts

New Act (section 21)

• A document or proceeding or contract may be signed by any KMP or an officer duly authorised by the Board in this behalf

Old Act (corresponding 54)

• Authentication of documents and proceedings

• A document or proceeding requiring authentication by the company may be signed by a director, manager, secretary or other authorised officer of the company

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Chapter – IIIProspectus & Allotment of Securities• This chapter is divided into 2 parts• Part I – Public Offer and Part II – Private

Placement (Effective from 1-4-2014)• Sections ranging from 23 to 42.• Total 20 sections.• Out of which 15 sections have been made

applicable from 12.09.13, all in Part I• The notified sections are 23, 24, 25, 29, 30, 31,

32, 33, 34, 35, 36, 37, 38, 39 and 40

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Public offer and pvt. placement

New Act (section 23)• It provides the ways in which: Public company or a Private company may issue securities.• It is to be noted here that

23(1)(b) and 23(2) effective from 1-4-2014.

• 23(1)(b): Private placement of shares by public companies

• 23(2): Issue of shares by private companies

Old Act (NEW provision)• This is a new provision and

no corresponding section could be found.

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Doc containing offer of sec. for sale to be deemed prospectus –Section 25

• Any document by which the offer for sale of securities (under the old Act shares) is made to the public, shall be deemed to be a prospectus and all sections as applicable to prospectus, shall be applicable to it.

• It is to be noted that section 25(3) is effective from 1-4-2014.

• This sub section brings out additional information required to be mentioned in addition to matters specified in S. 26 of the Act such as amount received, pricing etc.

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Public Offer of Securities to be in De-materialised form – Section 29 & Rule 9 of Companies (Prospectus &

Allotment of Securities) Rules, 2014

• Applicable to every company making public offer and such other class of public companies as may be prescribed

• Other companies may issue securities in physical or demat form

• Under the old Act, same was applicable to every listed company making an initial public offer of any security for a sum of Rs 10 Crores or more

• As per Rule 9 promoter of public companies making public offer shall hold shares only in dematerialized form.

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Advertisement of Prospectus - Section 30

• Advertisement of Prospectus published shall specify the contents of its MOA:– Objects– Liability of Members– Amount of Share Capital– Subscriber Details– Capital Structure

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Red Herring Prospectus (RHP) – Section 32

• RHP may be issued prior to issue of Prospectus• RHP to be filed with ROC at least 3 days prior to

opening of subscription list and the offer.• Upon closing of the offer, the details of information to

be filed with ROC and SEBI such as total capital raised, other information not included in red herring prospectus.

• Red herring prospectus means a prospectus which does not include complete particulars of the quantum or price of the securities.

• Under the old Act, Section 60B referred to this matter ie information memorandum.

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Punishment for Fraudulently inducing persons to Invest money

New Act (section 36)• Persons who fraudulently

induce persons to invest money shall be liable for action under Sec 447 (Punishment for Fraud)

• This includes any agreement with a view to obtaining credit facilities from bank or financial institutions.

• A non compoundable offence

Old Act(Corresponding 68)• Bank and Financial

Institutions were not covered

• It was a compoundable offence

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Action by Affected Persons (Sec 37)

• New Section • A suit may be filed or• Any other action may be taken • U/s 34 (Criminal liability), 35(Civil liability) or 36

(fraudulently inducing persons to invest money)• By any person, group of persons or any

association of persons• Affected by any misleading statements, inclusion,

omission of any matter in the prospectus

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Punishment for Personation for Acquisition etc of Securities

New Act (section 38)• Punishment u/s 447 (Fraud)

for persons who apply in fictitious names, multiple applications

• Court may order disgorgement of gains, if any and seizure and disposal of the securities

• The amount so received by the court to be credited to the Investor Education and Protection Fund.

Old Act(Corresponding 68A)• Disgorgement provisions

were not there earlier• Multiple applications in

different names or in different combinations were not included earlier

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Allotment of Securities by Companies

New Act (section 39)• Where no minimum amount has

been subscribed within 30 days from the date of issue of prospectus then money received against the application needs to be refunded to all applicants within 15 days from closure of the issue (Rule 11)

• Co. having a share capital, on allotment of securities (earlier only shares) shall file a return of allotment with ROC

• Rs 1000/- penalty for each day of continuing default.

• Share application money should be in cheque or other instruments. No cash is allowed (S 39(1)).

Old Act(Corresponding 69 & 75)

• Prohibition of Allotment unless Minimum Subscription Recd (Sec 69)

• Return as to Allotments (Sec 75)

• Only pertaining to Shares

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Chapter – IVShare Capital & Debentures

• Sections ranging from 43 to 72 • Total 30 sections• Out of which 12 sections have been made

applicable from 12.09.13• The notified sections are 44, 45, 49, 50, 51, 57,

58, 59, 60, 65, 69 & 70

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Nature of Shares or Debentures

New Act (section 44)• Shares or Debentures or

other interest of any member in the company shall be moveable property transferable in the manner provided in AOA

• No Change

Old Act(Corresponding 82)• Provisions retained

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Company to accept unpaid share capital although not called up Section 50

• Allows a Company if authorized by its AOA to accept amounts from members which are unpaid on the shares even though no call has been made.

• The acceptance of such amount shall not confer any voting rights against the amount paid till the call has been made.

• Provisions of Section 92 of the old Act retained.

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Payment of Dividend in proportion to amount paid up – Section 51

• Company if authorized by AOA may pay dividend in proportion to the amount paid up on each share

• Provisions of Section 93 of old Act retained

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Punishment for Personation of Security holder Section 57

• It provides penalty for a person who deceitfully personates as the owner of any security or interest in a company.

• Imprisonment : 1 to 3 years• Penalty 1 lakh to 5 lakhs• Old Act – Section 116- applies only for shares,

new act for all securities.

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Publication of Authorized, Subscribed & Paid Up Capital - Section 60

• If a Co. publishes a notice, advertisement or other official publications or business letters which state the amount of Authorized Share Capital, the Company should state in the said document the details of the subscribed and paid up capital.

• Penalty – Company Rs 10,000 and for officer in default Rs 5000 for each default.

• Corresponding to Sec 148 of the Old Act.

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Unlimited Company to Provide for Reserve Share Capital on Conversion into Limited Company – Sec 65

• Unlimited Company may be allowed to increase its Nominal Capital provided that the same shall not be called up except at the time of winding up.

• Corresponding to Sec 98 of the old Act.

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Transfer of Certain Sums to CRR Account Sec 69

• Where there is a buy back out of Free Reserves or Share premium Account the amount equal to nominal value of shares bought back should be transferred to CRR(Capital Redemption Reserve)

• The said Reserve can be used for a bonus issue.

• Under the old Act, usage of CRR not specified.

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Prohibition for buy back in certain circumstances – Sec 70

• No company shall buy back its own shares-through its subsidiaries-through investment company or group of Ics-If default in complying in repayment of deposits, interest

thereon, redemption of debentures or preference shares.• Buy back not prohibited if default remedied and a period of

3 years elapsed after such default ceased.• Company shall also not buy back its own shares if non

compliance of provisions of S 92 (Filing of annual return), S.123 (Declaration of dividend), S.127 (payment of dividend) and Section 129 (financial statement).

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Chapter – VAcceptance of Deposits by Companies• Sections ranging from 73-76• Total 4 sections effective only from 1-4-2014

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Chapter – VIRegistration of Charges

• Sections ranging from 77-87• Total 11 sections• Out of which only 1 section has been made

applicable from 12.09.2013• The notified section is 86 – punishment for

contravention of provisions of this Chapter. Corresponding to Section 142 of the old Act.

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Chapter – VIIManagement & Administration

• Sections ranging from 88 to 122 • Total 35 sections• Out of which 13 sections have been notified

from 12.09.13• The notified sections are 91, 100, 102, 103,

104, 105, 106, 107, 111, 112, 113, 114 and 116

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Calling of Extra-ordinary General Meeting Section 100

• The board at the requisition made by:- Holder of 1/10 of paid up share capital or - In case of companies not having share capital holding 1/10 of

voting power may call for EGM.• The company may call EGM within 45 days from the date of receipt

of requisition• If the company does not conduct EGM within 45 days,

requisitionists call EGM within 3 months from the date of requisition.

• It is to be noted that section 100(6) relating to reimbursement of expenses incurred by requisitionists from the fee or other remuneration under Sec 197 payable to directors who were in default in calling the meeting

• Corresponding to Section 169 of the old Act.

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Statement to be Annexed to Notice Sec 102

• Notice of items of GM concerning special business• To specify the nature of concern or interest, financial

or otherwise, if any in respect of each of the following persons:

1. Every Director and the Manager, if any2. Every other KMP and3. Relatives of the persons mentioned above and4. Also as per 102(1)(b) to give any other information and

facts that may enable members to understand the meaning , scope and implications of the items of business and to take decisions.

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Cont……

• 102(2)(b)-Disclosure of %age of shareholding in any other co. under consideration to be made if the %age of shares held in that co. is not less than 2%. As per Sec 173 of the old Act, same was 20%.

• 102(4)-In case of any benefit or profit by the concerned Promoter, Directors, KMP etc which accrues due to insufficient/non-disclosure, the said person will be liable to compensate the company as specified

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Quorum for Meetings

New Act (section 103)• Requirement of Quorum in

public co. changed • Less than 1000 = 5 members• >1000 but <=5000=15 members• >5000- 30 Members• 103(1)(b)- for private limited

company 2 members personally present

• 103(2)-Where GM adjourned for lack of quorum, the co. to give not less than 3 days notice to members individually or by an advertisement in newspaper

Old Act(Corresponding 174) • 5 members personally

present in case of public co• 2 members personally

present for private co.

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Punishment for failure to distribute dividends

New Act (section 127)• Dividend to be paid within 30

days from declaration date• This section prescribes penalty

provisions for the directors, who knowingly are parties to the default

• The punishment is imprisonment which may extend to 2 years and with fine not less than Rs.1000 for every day of continuing default

• 5 points have been mentioned when no offence will be deemed to have been committed

New Act (section 127)• The heading read as ‘Penalty

for failure to distribute dividends within 30 days

• Provisions have been retained• In the heading of the section,

the word ‘punishment’ has been replaced by the word ‘penalty’

• It is to be noted that in the new law, imprisonment has been reduced from 3 to 2 years

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Chapter – IXAccounts of Companies• Sections ranging from 128 to 138 • Total 11 sections• Out of which 1 section has been made

applicable from 12.09.13• The notified section is 133

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Central Government to prescribe accounting standards

New Act (section 133)• The CG* may prescribe the

standards of accounting or any addendum thereto

• As recommended by the Institute of Chartered Accountants of India

• The CG would consult with NFRA* and examine the recommendations made by ICAI

• CG means Central Government• NFRA means National Financial

Reporting Authority

Old Act(Corresponding 211(3C))

• There was a mention of the National Advisory Committee on Accounting Standards

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Chapter – XAudit & Auditors

• Sections ranging from 139 to 148 • Total 10 sections• Out of which ‘NO’ section has been made

applicable from 12.09.13

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Chapter – XIAppointment & Qualification of Dirs • Sections ranging from 149 to 172• Total 24 sections• Out of which 3 sections have been made

applicable from 12.09.13• The notified sections are 161, 162 and 163

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Appointment of additional director, alternate director & nominee director• All the 3 sections merged into 1• Section 161(1) deals with addl dir (AD): BOD can

appoint ADs. Person who fails to get appointed in a general meeting will not be eligible to be appointed as AD

• Section 161(2) deals with alternate dir: BOD may appoint any person to act as alternate director for any director during his absence for a period not less than 3 months from India (As per old Act absence from the state is enough)

• This person should not be holding any alternate directorship for any other director in the company

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Appointment of directors to be voted individually (Sec 162)

• A single resolution cannot be passed for appointment of more than 1 director

• Unless an approval for en-bloc appointment has been resolved at a meeting without a single vote cast against it

• In the new law, this section has been made applicable to private limited companies but as per the draft notification the said sec is not applicable to private companies

• In 1956 Act, it was applicable to public company and a private company which is a subsidiary of a public company

• Corresponding to Sec 263 of the old Act.

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Chapter – XIIMeeting of Board & its Powers

• Sections ranging from 173 to 195• Total 23 sections• Out of which 9 sections have been made

applicable from 12.09.13• The notified sections are 176, 180, 181, 182,

183, 185, 192, 194 and 195

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Restrictions on powers of Board Sec 180

• Certain powers which can be exercised by the BOD with the approval of general meeting by passing special resolution, are now applicable to private limited companies also (As per draft notification this Sec is not applicable to Pvt cos with less than 50 members)

• Some powers now can be exercised by the BOD after passing special resolution vis-à-vis ordinary resolution in the old law

• Contribution to charitable funds as mentioned in old section 293(1)(e) has been removed and shifted to a new section

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Company to contribute to bonafide and charitable funds etc. Sec 181

• The BOD may contribute to bonafide charitable and other funds

• Provided that, prior permission by way of resolution at a general meeting is obtained

• This permission only required if the amount, the aggregate of which, in any financial year, exceeds 5% of its average net profits for the 3 immediately preceding financial years.

• Net profit not defined.

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Prohibitions & restrictions regarding political contributions – Sec 182

• Proviso to 293A(2) of the old Act laid the limit of 5% which has been increased to 7.5% in the new law

• The way the said contribution needs to be disclosed in the profit & loss account of the company has been mentioned too

• Punishment for contravention has been increased from 3 times to 5 times of the amount contributed.

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Loan to Directors- Section 185• 185(1): Provisos - Circumstances and manner in which a company

shall advance any loan to any of its directors• Or to any other person, in whom the director is interested • The expression ‘to any other person in whom director is interested’

has been defined • The section not only mentions loan but also guarantee or any

security in connection with loan.• Most important change: The new act makes section 185 applicable

to private limited companies also subject to exemption given to certain class of private Ltd companies having borrowings from banks, financial institution or any body corporate twice of their paid up capital or Rs 50 crores which ever is lower and in whose share capital no other body corporate has invested any money (Draft notification).

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Restriction on non-cash transactions involving directors - Sec 192

• This section regulates the arrangements where the: a. Director of the company or b. Director of its holding company c. Director of its subsidiary company d. Director of its associate company acquires assets for consideration other than cash, from

the companyPrior approval for such arrangement is accorded by a resolution of the company in general meeting.

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Prohibition on forward dealings in securities of company by director or KMP – Sec 194

• It seeks to prohibit whole time director or any of its KMP

• From buying certain kinds of future contracts• In relation to the securities of the company• For contravention – WTD and KMP shall be

liable for imprisonment for a term upto 2 years or fine from one lakh to 5 lakhs and

• They shall surrender such securities to company itself.

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Prohibition on insider trading of securities

• It seeks to prohibit directors or any of its KMP • To deal in securities of a company, or counsel,

procure or communicate• Directly or indirectly• About any non-public price sensitive

information to any person• Imprisonment for a term upto 5 years or

penalty from 5 lakhs to 25 crores

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Compensation for loss of office of managing or whole-time director or manager-Sec 202

• Manner and circumstances in which any managing director or whole-time director or manager, shall be entitled to receive payment by way of compensation:

- for loss of office or - as consideration for retirement from office or - in connection with such loss or retirement• 202(2) lays down the cases when the payment by way of

compensation will not be allowed• 202(3) specifies the quantification of such compensation • Corresponding to Sec 318 of the old Act.

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Miscellaneous (Penalties)• S 447 punishment for fraud – Imprisonment from 6

months to 10 years and fine upto 3 times of the amount involved.

• Fraud includes any act, omission, concealment of facts for undue advantage or wrongful gain or loss

• S 448 punishment for false statement.- shall be liable for penalty as per S 447

• S 449 for false evidence upon any examination or oath – imprisonment from 3 to 10 years and fine upto Rs 10 lakhs.

• S 452 wrongful withholding of property – fine from Rs 1 -5 lakhs.

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Companies (Accounts)Rules, 2014

• Sec 128 – Books of accounts of the company shall be kept at its registered office or such other place as may be decided by the Board.

• The books of accounts shall be kept for a period not less than 8 years immediately preceding the financial years.

• Contravention fine from Rs 50,000/- to 5 lakhs and imprisonment upto 1 year.

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Companies (Accounts)Rules, 2014• Rule-3• Books maintained in electronic form shall remain accessible

in India• Information received from branches should be kept in its

original form .• The company shall intimate to ROC on an annual basis the

following:-Name of the service provider-Internet protocol address of the service provider.-Location of the service provider-where the accounts are maintained on cloud, such address as

provided by the service provider

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Accounts Rules cont…

• Rule-4• Where books are maintained outside India,

summary shall be sent to India on a quarterly basis, which shall be kept at Registered Office and open for inspection by directors.

• If any additional details required by the director, same shall be provided to him within 15 days from the date of receipt of requisition.

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Rule -6

• Consolidation of accounts:-Consolidation shall be made in accordance with

Schedule III of the Companies Act, 2013 and applicable accounting Standards.

Sec 129(3) regarding consolidation explains subsidiary include associate and joint venture also.

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Rule 8 Board Report• Shall include-conservation of energy-Technology absorption-Foreign exchange earnings and outgo-Highlights of financials-Details of subsidiary, joint venture and associate

companies-Details of deposits accepted and repaid and

whether there has been any default in repayment.

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Rule 11

• In the case of listed Companies or public companies having net worth exceeding 1crore and turnover more than 10 crores - financials shall be sent to all the share holders in electronic form if share holding in dematerialised form or-In electronic form if consented in writing to receive in electronic form otherwise despatch of physical copies.

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Rule 13 – Internal Audit • Applicable to listed companies• Unlisted public companies-turnover 200 crores or paid up share capital 50 crores or

more or outstanding loans exceeding Rs 100 crore at any point of time or deposits Rs 25 crore or more during the preceding financial year.

• Private Limited Companies • Turnover Rs 200 crores or more or outstanding loans Rs

100 crores or moreLoans from banks or public financial institution only to be counted.

• S.138. should be Chartered Accountant, Cost accountant, or such other professional as may be decided by Board.

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Companies (Audit & Auditors) Rules, 2014

• First auditor by the board of directors Sec 139(6) within 15 days from the date of registration; if not done within 90 days appointment at an extra ordinary general meeting

• For every subsequent appointment by company at the annual general meeting the auditor so appointed shall hold office till the conclusion of every sixth meeting.

• Appointment needs to be ratified at every annual general meeting .• Company shall avail a certificate from the auditor at the time of

appointment that eligibility criteria as given in Sec 141 is complied with (Rule 4 ).

• Company shall also file notice in Form ADT-1 within 15 days confirming the appointment. Earlier auditor to file Form 23B.

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Rule cont…• Rotation of auditors (S 139(2) & Rule 5) – Class of

companies -all listed companies -all unlisted public companies having paid up share

capital of ten crores or more-all pvt ltd companies having paid up share capital 20

crore or more.-all companies having borrowings from banks or financial

institution or deposits exceeding Rs 25 Crores.• Auditors retiring by rotation shall not hold office for a

further period of 5 years.

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Removal of auditors

• Application to central government in Form ADT-2 within 30 days of the resolution by the board.

• Pass special resolution within 60 days of the receipt of the approval from CG.

• When the auditor resigns, he shall file a statement in Form ADT-3

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Rules cont…

• In case of criminal liability, such liability shall be devolved upon only on the concerned partner.

• Reporting of frauds by auditor to CG in form ADT-4

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Companies’ (Acceptance of Deposit) Rules, 2014

• S 2(31) Deposit includes any receipt of money by way of deposit or loan or in any other form by the company.

• Under the old Act definition was given in the rules and not in the Act.

• NBFCs are not covered under the new rule and are governed by the RBI rules

• As per draft notification, Rule does not apply to private company having 50 or less members and deposit accepted from members does not exceed 25% of the paid up capital & Free Reserve or 100% of Paid up capital whichever is more and which informs such amount to registrar in the prescribed form.

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• As per S. 73 Company cannot accept deposits from persons other than its members.

• Public company having net worth of not less than Rs 100 crores or a turnover of not less than Rs 500 Crores may accept deposits from persons other than its members.

• Deposits accepted by the Company before 1st April 2014 or any interest thereon shall be repaid within one year of 1st April, 2014 or due date whichever is earlier.

• Form DPT -4 to be filed with registrar before 30th August, 2014 along with the certificate from statutory auditor of the company.

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• Every company shall furnish deposit receipt to the deposit holders within 21 days of the receipt of money.

• Register of deposit shall be maintained at the registered office and shall be retained atleast for a period of 8 years.

• The form of application of deposit shall contain a declaration by the intending depositors to the effect that the deposit is not being made out of any borrowed fund.

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• Rule 2(1)(C) of the Acceptance of deposit rules, the deposit does not include:

• Any amount received by a company from any other company.

• Any amount received as share application money, if not refunded within 75 days of the receipt of application money where shares are not allotted within 60 days of the receipt of money.

• Any amount received for the purpose of the business, such trade advance exists for more than 365 days.

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• No company shall accept deposits-which are repayable on demand-repayable within a period of less than 6 months

from acceptance-repayable after six months from acceptance• Annual return in Form DPT 3 to be filed before

30th June every year.• Company shall not accept deposits from members

if deposit so accepted exceeds 25% of the sum of paid up capital and free reserves.

• Rate of interest shall not be more than rate of interest prescribed by RBI.

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Chairman’s speech in AGM

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THANK YOU

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