For FY 2013-14,Annual return in 20B is to be filed & information as on AGM date:MCA Circular 22/2014:Analysis of circular

[Nitesh More]

CL Update 38:For FY 2013-14,Annual return in 20B is to be filed & information as on AGM date:MCA Circular 22/2014:Analysis of circular

Analysis of circular:22/2O14

1) For f.y. 2013-14 & earlier, Annual Return in form 20B is to be filed.

2)It appears that information as on the date of AGM is required to be filled in form 20B, as required earlier (but not information as on the date 31.3.14). This is due to the following two reasons: 

a) The relevant sec is applicable from 1.4.14 i.e. F.y. 2014-15. 

b) The  circular  states that "The matter has been examined in the light of provisions of section 92(1) of the Act which requires annual return to contain particulars as they stood on the close of the financial year.  It is, clarified that Form MGT-7 shall not apply to annual returns in respect of companies whose financial year ended on or before 1st April, 2014 and for annual returns pertaining to earlier years." 

Had the intention of the legislature to have the information as on 31.3.2014 in Form 20B, it would have expressly requires so. 

                                   General Circular No. 22/2O14

Clarification with regard to format of annual return applicable for Financial Year 2013-14 and fees to be charged by companies for allowing inspection of records.

1. Government has received requests for clarification about the applicability of form of annual return (MGT-7) prescribed under rule 11(1) of the Companies (Management and Administration) Rules, 2014 for financial year(s) commencing earlier than 1th April, 2014. The matter has been examined in the light of provisions of section 92(1) of the Act which requires annual return to contain particulars as they stood on the close of the financial year. It is, clarified that Form MGT-7 shall not apply to annual returns in respect of companies whose financial year ended on or before 1st April, 2014 and for annual returns pertaining to earlier years. These companies may file their returns in the relevant Form applicable under the Companies Act, 1956.

2. Companies have also sought clarity about permitting fee of cost inspection of records under rule 14(2) and rule 16 of the rules cited above and till a fee is prescribed for the purpose in the Articles. It is clarified that until the requisite fee is specified by companies, inspections could be allowed without levy of fee.

3. This issues with the approval oi the competent authority.

CL Update 3

7

 

:

 

 

How to intimate ROC for appointment of Auditor 

on or 

before

 or after

 1.4.14

?

 : 

For appointment of auditor, physical filled ADT-1 form is to be uploaded

 

as an attachment with general form GNL-2

 .

 

CL Update 36:

At our facebook group, “ CA Nitesh More Kolkata”, more than 100 of interaction has been made on problems of filling DPT 4 under post “HOW & WHEN TO FILE DPT3 & DPT 4 : BY CA NITESH MORE". 

Kindly see the interaction & your query on DPT:4 is expected to be solved. You can post your new query also. Link to visit is:

https://www.facebook.com/groups/caniteshmore/

CL Update 35: HOW  TO PREPARE & FILE  DPT 4 : BY CA NITESH MORE

 

HOW TO PREPARE & FILE DPT 4?
5) Format of DPT4, Auditors Report & deposit list to be attached has been enclosed in excel format.

6) DPT4 is to be filed for F.Y. 2013-14, however, definition of deposits as per New Company Law is to be considered as sec 74 requires so.

7) Form DPT4 is an attachment Form .It is given in attachment category under download forms.

8) It will be attached with Form GNL 2(Form for submission of documents with the

Registrar). This will be filed in “return of deposit  category”  in point 3 of FORM GNL 3.  

9) Auditors report in will also be attached with this form.(Format has been Attached.)

10)

At our facebook group, “ CA Nitesh More Kolkata”, more than 100 of interaction has been made under post “HOW & WHEN TO FILE DPT3 & DPT 4 : BY CA NITESH MORE”. Kindly see the interaction & your query on DPT:4 is expected to be solved.  

REQUIREMENTS OF SEC 74 & RULE 20

1) a) As per sec 74 of Co Act, 2013 & Rule 20 of the Companies (acceptance of deposit) Rules, 2014, If deposit or any interest remains unpaid on commencement of this Act, co. shall file, within 3 months (i.e. 30^th June, 2014), with ROC a statement in “Form DPT4”of all deposits accepted & sums remaining unpaid and Co shall repay the dues on or before 31.03.2015 or on due date of repayment, whichever is earlier.

b) Tribunal may, on application made by co., allow further time to repay the deposit.
c)  Penalties –

 i)  To Company – shall pay deposit and interest along with fine Rs. 1 crore to Rs. 10 crores and

 ii) To officer in default - Imprisonment upto 7 years or fine Rs. 25 Lakhs to Rs. 2 Crores, or both.

YES,  LOAN CAN BE TREATED AS DEPOSITS

2) Loan is covered under definition of deposits under Company Act, 2013 read with the Companies (acceptance of deposit) Rules, 2014.
3) Definition of the term “deposits” under Companies (acceptance of deposit) Rules, 2014, states the following:

a) If loan is received from any other company by any co., it is not covered as deposits. 
b) If loan is received by any company (both Public & Pvt) from directors, it will not be covered as deposits provided director gives a declaration that loan is out of own fund(not by taking loan) . However, if loan is received from shareholders or director’s relative by any Co, these will be covered as deposits. 
c) If loan is received from other individuals by any company (both Public & Pvt), these will be covered as deposits.

d) any amount brought in by the promoters of the company by way of unsecured loan in pursuance of the stipulation of any lending financial institution or a bank  will not be treated as deposits subject to fulfillment of the following conditions, namely:-

(i) the loan is brought in pursuance of the stipulation imposed by the lending institutions on the promoters to contribute such finance;

(ii) the loan is provided by the promoters themselves or by their relatives or by both; and

(iii) the exemption under this sub-clause shall be available only till the loans of financial institution or bank are repaid and not thereafter;

4) A question arises, if any loan is received by a Co. from shareholder or director’s relative under Co Act, 1956, should we include these as deposit in Form DPT4 or not? 
Answer: Yes, include these as deposits in Form DPT4.
Reasons:
i) The meaning of the term “deposit” under sec 74 under Co Act, 2013 will be as per sec 2(34) of the Co Act, 2013. Hence, these will be included as deposits in Form DPT4.
ii) The intention of introduction of sec 74 is to repay all old deposits within one year time or extended time. MCA wants that all deposits accepted have to follow new Act & New Rules.
iii) This view can also be supplemented by the fact that legislature is giving enough time i.e. 1 year time to repay the deposits existing on 1st April, 2014 to comply with new Act & New Rules.
iv) ROC is expected to take this view .

 

 

RETURN OF ALLOTMENT IS TO BE FILED FROM NEXT YEAR IN “FORM DPT 3”( I.E. 2015)

10)a) Rule 16 of The Companies (Acceptance of Deposit) Rules, 2014 requires that every company to which these rules apply, shall on or before the 30^th day of June, of every year, file with the Registrar, a return in Form DPT-3 along with the fee as provided in Companies (Registration Offices and Fees) Rules, 2014 and furnish the information contained therein as on the 31^st day of March of that year duly audited by the auditor of the company.

b) Form DPT-3 will be filed as an attachment to Form GNL-2 (Circular No. 09/2014 dated 25.04.2014).

c) DPT-3 will be pre-certified by auditors of the company (Rule 12(b)(ii) of The Companies Registration Offices and Fees (Amendment) Rules, 2014)

d) The computation of Net Worth in Form DPT-3 requires data of latest audited balance sheet preceding the date of the return i.e. 31.03.2015.

e) This return of allotment will be filed from next year as relevant provision is applicable from 1^st April, 2014. 

 

Dear Members,

Need your suggestion/views on few queries regarding compliance of section 74 of the CA 2013 regarding filing of statement of deposits existing as at 01.04.2014 in form DPT-4:

Query-1: If deposits existing as at 01.04.2014 have been repaid before 30.06.2014, whether they still need to be reported

ANS: YES

Query-2: If  deposits have been reported by the company in form DPT-4, and subsequently they are paid before 31.3., its repayment need to be reported to ROC. If yes, how will such reporting be done? If no, how will ROC keep a track for repayment of all such deposits?

ANS: Yes , Return of Allotment in Form DPT3 Is to be filed for 2014-15 onwards.

 

Query-3: If  shareholders from whom loans exist as at 01.04.2014 but after 01.04.2014 and before 30.06.14, such shareholder is appointed as director whether it will still fall under the definition of deposit and will need to be reported in form DPT-4 or this will not be considered as deposit as loan from director is excluded from deposits?

ANS: Yes (as loan paid by director at the time when he is director is exempted deposits). However, planning should be to  repay existing loan & take fresh loan after appointing him as director.

 

Query-4: If the deposits from shareholders are taken over by/transferred to the directors, whether this will comply for exclusion from the definition of deposits which excludes “any amt received from a person who at the time of receipt of amount, was a director of the company”

ANS: No, as director is required to give declaration that loan to company is not out of loan or deposit.

 

Query-5: The deposit rules excludes from deposit, loan taken from promoters in stipulation imposed by the lending institution. Who all will be included as promoters for this purpose?

ANS:

 

Query-6: An auditor certificate needs to be attached with DPT-4 certifying the list of deposits, how will the auditor certify a deposit from director for exclusion and how will he certify that the funds are given by the directors out of his own funds?

ANS: Auditor will see whether director has furnished declaration or not. He can require further information too, if requires. 

CL Update 34:ANALYSIS OF DRAFT EXEMPTIONS AVAILABLE TO PVT LTD CO

In a praiseworthy move , MCA finally brings today some relief for Private Companies in Companies Act 2013. Has issued a draft notification dated 24 June 2014 which will hopefully get passed by houses of parliament soon.

I have tried to analyse the details of notification in light of provisions of act.
Amongst other things notification importantly provides that :

1. Section 73 subsection 2 (which details conditions to be followed for deposit acceptance) Shall not apply to private companies having 50 or less number of members if they accept monies from their members not exceeding twenty five percent of aggregate of the paid up capital and 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. 
In crux , taking unsecured loan from shareholders will be allowed without any hassle for Entity with 50 or less shareholders.

2. Sections 101 to 107 and 109 (detailing requirement of min.days notice , quorum , voting manner , proxy manner , chairman ,poll , etc. for meetings ) shall apply unless articles of the private company otherwise provides.
In crux , companies can alter AOA to suit their comfort on these sections.

3. Following section / clause shall not apply to Pvt. Company :

• Clause (g) of sub-section (3) of section 141 : which provides for disqualification of auditor if is in employment or holds audit of twenty companies ( A big relief for CAs & hence a CA can audit any no. of pvt. company)

• Section 160 : which provides notice & Rs.1lakh deposit requirement for proposing person other than retiring director for directorship

• Section 162 ; which provides for separate resolution for appointment of each director and not through single resolution

• Section 180 (for pvt.co. with 50 or less members) : which mandates boards to exercise few powers only with consent of company through special resolution (sell,lease,dispose assets Or invest Or Borrow ). Hence these transaction shall happen board resolution thereby avoiding co.special resolution and its filing with ROC.

• Section 185 : which placed restriction on giving any loan/guarantee to director or related parties

• Section 188 : which placed restriction on Related party transaction & required special resolution for same without interested parties voting for same.

• Section 196 sub section (4) and (5) : which provided for approving Appointment and remuneration of managing director, whole-time director or manager by board subject approval at general meeting . Also required CG approval if variance from Schedule V. Also provided for intimation to ROC in sixty.

• Section 203 sub section (3) : which provided that a whole-time key managerial personnel shall not hold office in more than one company except in its subsidiary company at the same time.Any decided changes for Pvt.co.clients can accordingly be kept on hold till notification get approved.

CA. Prabhat Chopra

P Chopra & Associates

Gwalior

09993387870

CL Update 33: Sec 185, 188, 20 AUDIT LIMIT WILL NOT APPLY TO PVT LTD CO: 

Achhe Din Ane wale Hai !!!!!!!!!!!! For PVT LTD COs

1) sec 185 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”.

2) section 188 Shall not apply.

3) 

20 AUDIT LIMIT WILL NOT APPLY TO PVT LTD CO

4) Many other sec will not apply:see attachments 

CL Update 32: MCA released Draft exemptions to be given to PVT LTD COs: MCA invites suggestions: What exemption u require for pvt Ltd companies?

NOTICE INVITING COMMENTS FOR THE DRAFT NOTIFICATION UNDER

SECTION 462 OF THE COMPANIES ACT, 2013 FOR PRIVATE COMPANIES

 

Section 462(1) of the Companies Act, 2013 (Act) empowers the Central  Government to direct, by notification, in the public interest, that any of the provisions of this Act shall not apply to such class or classes of companies, or shall apply to the class or classes of companies with such exceptions, modifications and adaptations as may be specified in the notification. The said draft notification is required to be laid before each House of Parliament in accordance with section 462(2) of the Act.

 

The proposed draft notification under section 462 of the Act in respect of exemptions, exceptions, modifications or adaptations from relevant provisions of the Act for private companies has been prepared and is available on the Ministry’s website at www.mca.gov.in. Suggestions/Comments on the proposed draft notification may be addressed/sent latest by 1st July, 2014 through email at exemp...@mca.gov.in. It is requested that the name, Telephone number and address of the sender should be indicated at the time of sending suggestions/comments.

 

CL Update 32: Format of auditor certificate for DPT 4

Under Rule 20 of the Companies (Acceptance of Deposits Rules, 2014)

Certified that the Statement of Deposit in Form DPT 4 annexed herewith of ------------LIMITED as on 1.4.2014 has been verified and in our opinion and to the best of our information and according to the explanation given to us the said Statement is correct and give the information in accordance with the provisions of clause (a) of sub-section (1) of section 74 of Companies Act ,2013

for --------------------------
CHARTERED ACCOUNTANTS

----------

CL Update32: 3 REASONS:WHY DPT3 IS NOT REQUIRED TO BE FILED FOR FY 2013-14?:BY CA NITESH MORE

1) Kindly note that DPT3 is return of deposit & should be filed for

f.y. 13-14 by taking the definition of deposit & provisions as per Co

Act, 1956 as it is relating to  f.y. 13-14.

2) As there is no requirement of filling DPT3 under Old Act to MCA, no

DPT3 will be filled to MCA.

3) Kindly also refer to the language used in  General Circular 08/2014

relating to applicability of Companies Act, 2013 for provisions
relating to financial statements (and documents required to be

attached thereto),auditors report and Board report, which is

reproduced below:

"Although the position in this behalf is quite clear, to make things

absolutely clear it is hereby notified that the financial statements
(and documents required to be attached thereto), auditors report and

Board report in respect of financial years that commenced earlier than

1st

April, 2014 shall be governed by the relevant provisions/ Schedules/

rules of the Companies Act, 1956 and that in respect of financial

years commencing on or after 1 April, 2014, the provisions of the new

Act shall apply".Hence Boards Report, Auditors Report etc for the FY

2013-14, which will be made in year 2014-15, shall be made as per Co
Act 1956

"

.

In similar line, "Return of Deposits" for the FY 2013-14 is to be

filed as per Companies Act, 1956. 

CA Nitesh More

Helpline to file DPT 4: Ask query on "Form DPT4" with CA Nitesh More on his

facebook *group profile* "CA Nitesh More Kolkata"

1) Query should be asked below the post "*HOW & WHEN TO FILE DPT3 & DPT 4*"

2) Read all the query already  answered as query already replied will not

be answered again & again.

3) Link to reach facebook group profile "CA Nitesh More Kolkata" is as

below:

https://www.facebook.com/groups/caniteshmore/

Wish you Happy filling of DPT 4



* COMPANY LAW UPDATE 30:**Why old loan from shareholders, relatives &
other individuals be treated as deposits in DPT4? CA Nitesh More*

1) Deposit for the purpose of sec 74 shall be as per new co act & deposit
rules. Such definition states that loan from shareholders, relatives &
other individuals who are not directors at the time of giving loan, shall
be treated as deposits.

2) Again, the intention of inclusion of sec 74 to new co act is that all
deposits as per old act should be identified & reported to ROC by 30th June
& repay by 31st March, 2015.

3) Had the intention of the new companies Act were to use definition of
deposits as per Co Act, 1956 , it would have expressly stated so.

4) Also note that sec 74 states that deposit as on commencement of this Act
i.e. 1st April, 2014, it does not states deposits as on 31st March, 2014.
The definition of deposits as on 1.4.2014 should be used. How can we apply
definition of deposits as per Old Act on 1.4.2014?

5) Lastly, to avoid disputes & to avoid risk of crores of penalty, it is
better to recognize these as deposits, file in DPT 4 & return the loan by
31.3.2015 as per sec 74.

CA NItesh More


  *COMPANY LAW UPDATE 29:**HOW & WHEN TO FILE DPT3 & DPT 4 : BY CA NITESH
MORE*


*REQUIREMENTS OF SEC 74 & RULE 20*

*1)* *a)* As per sec 74 of Co Act, 2013 & Rule 20 of the Companies
(acceptance of deposit) Rules, 2014, *If deposit or any interest remains
unpaid on commencement of this Act**,* co. shall file, within 3 months
(i.e. 30th June, 2014), with ROC a statement in "Form DPT4"of all deposits
accepted & sums remaining unpaid and Co shall repay the dues on or before
31.03.2015 or on due date of repayment, whichever is earlier.

*b)* Tribunal may, on application made by co., allow further time to repay
the deposit.
*c) * *Penalties *-

 i)  To Company - shall pay deposit and interest along with fine Rs. 1
crore to Rs. 10 crores and

 ii) To officer in default - Imprisonment upto 7 years or fine Rs. 25 Lakhs
to Rs. 2 Crores, or both.

*YES,  LOAN CAN BE TREATED AS DEPOSITS*

*2)* Loan is covered under definition of deposits under Company Act, 2013
read with the Companies (acceptance of deposit) Rules, 2014.
*3)* Definition of the term "deposits" under Companies (acceptance of
deposit) Rules, 2014, states the following:

*a) *If loan is received from any other company by any co., it is not
covered as deposits.
*b) I*f loan is received by any company (both Public & Pvt) from directors,
it will not be covered as deposits provided director gives a declaration
that loan is out of own fund(not by taking loan) . However, if loan is
received from shareholders or director's relative by any Co, these will be
covered as deposits.
*c)* If loan is received from other individuals by any company (both Public
& Pvt), these will be covered as deposits.

*d) *any amount brought in by the promoters of the company by way of
unsecured loan in pursuance of the stipulation of any lending financial
institution or a bank  will not be treated as deposits subject to
fulfillment of the following conditions, namely:-

(i) the loan is brought in pursuance of the stipulation imposed by the
lending institutions on the promoters to contribute such finance;

(ii) the loan is provided by the promoters themselves or by their relatives
or by both; and

(iii) the exemption under this sub-clause shall be available only till the
loans of financial institution or bank are repaid and not thereafter;

*4)* A question arises, if any loan is received by a Co. from shareholder
or director's relative under Co Act, 1956, should we include these as
deposit in Form DPT4 or not?
*Answer:* Yes, include these as deposits in Form DPT4.

*Reasons: *i) The meaning of the term "deposit" under sec 74 under Co Act,
2013 will be as per sec 2(34) of the Co Act, 2013. Hence, these will be
included as deposits in Form DPT4.
ii) The intention of introduction of sec 74 is to repay all old deposits
within one year time or extended time. MCA wants that all deposits accepted
have to follow new Act & New Rules.
iii) This view can also be supplemented by the fact that legislature is
giving enough time i.e. 1 year time to repay the deposits existing on 1st
April, 2014 to comply with new Act & New Rules.
iv) ROC is expected to take this view .




*HOW TO FILE DPT 4? **5) As per MCA web site, *Form DPT4 is an attachment
Form as it is given in attachment category under download forms.

*6)* It will be attached with Form GNL 2(Form for submission of documents
with the

Registrar). This will be filed in others category in point 3 of FORM GNL 3.


*7)* Auditors report in Old format under Companies Act, 1956 will also be
attached with this form.(Format has been Attached.)


*RETURN OF ALLOTMENT IS TO BE FILED FROM NEXT YEAR IN "FORM DPT 3"( I.E.
2015)*

*8)a)* Rule 16 of The Companies (Acceptance of Deposit) Rules, 2014
requires that every company to which these rules apply, shall on or before
the 30th day of June, of every year, file with the Registrar, a return in
Form DPT-3 along with the fee as provided in Companies (Registration
Offices and Fees) Rules, 2014 and furnish the information contained therein
as on the 31st day of March of that year duly audited by the auditor of the
company.

*b)* Form DPT-3 will be filed as an attachment to Form GNL-2 (Circular No.
09/2014 dated 25.04.2014).

*c)* DPT-3 will be pre-certified by auditors of the company (Rule 12(b)(ii)
of The Companies Registration Offices and Fees (Amendment) Rules, 2014)

*d)* The computation of Net Worth in Form DPT-3 requires data of latest
audited balance sheet preceding the date of the return *i.e. 31.03.2015.*

*e) This return of allotment will be filed from next year as relevant
provision is applicable from 1st April, 2014. *




*COMPANY LAW UPDATE 28: Unlisted co can file MBP14 within 27th July for
disclosure of interest by directors **without paying any penalty: CA Nitesh
More*
 1) As per Section 184 of the Companies Act, 2013, and Rule 8 and 9 of the
Companies (Meetings of Board &  its Powers) Rules, 2014, every director
shall at the first meeting of the Board of every year, has to give
disclosure of interest/concern in form MBP 1 and the same has to be filed
with Registrar of Companies in MGT-14 within 30 days from the date of Board
Meeting in which such disclosure is made.

2) As per new company Act, Gap between 2 board meetings can not exceeds 120
days. If a Unlisted company holds a meeting on 31st March 2014 & will hold
next board meeting on 29th July, 2014, it will be sufficient compliance of
New Company Law. Board meeting on 29th July, 2014 will be first board
meeting of 2014-15 in which directors of company have to give disclosure of
interest/concern in form MBP 1 and *the same can be filed with Registrar of
Companies in MGT-14** within 27th August, 2014 without paying any penalty.*

3) As per sec 173, Four board meetings are to be held in a year and the
time gap between two meetings shall not be more than 120 days.There is no
requirement to hold the meeting every quarter as provided under the
Companies Act, 1956.


4) Kindly also note that apart from above, there are various resolutions of
Board of Directors prescribed by  Rule 8 of the Companies (Meetings of
Board &  its Powers) Rules, 2014, and section 179(3) which need to filed
with MCA.

* COMPANY LAW UPDATE 27:*
* Gold jewelry instalment purchase schemes will collapse.*

As per amended Deposit Rules, if there is any benefit given, under any
scheme, where a person puts money for a specified period, and he gets a
benefit in cash or kind, it becomes a "deemed deposit".

As per this rule, the instalment purchase schemes being promoted by several
jewellery companies will become illegal.

Under these schemes, the customer makes 11 payments - the 12th is free.
This nothing but a benefit in cash or kind, and hence, this is a deemed
deposit.

There is an escape from the definition of "deposits" - advances for
purchase of goods or services where the supply happens within 1 year.
However, there is no question of any giving any benefit in cash or kind
there. That is, the value of goods supplied has to be the same as the
advance paid. However, there will be no reason for a customer to prepay the
money, if he is not to get any benefit - thereby completely taking out the
motivation from the so-called jewelery purchase schemes.

* COMPANY LAW UPDATE 26:  **E-voting deferred till 31.12.2014: attached:
MCA general circular 20/2014*

* COMPANY LAW UPDATE 25: There are many inconsistency in New company Law
& Forms prescribed. Example: Form INC 22 (Form for change of registered
office) prescribe order of competent authority as compulsory attachment,
however, no such order is required to be passed by any authority in case of
change of Regd office within same city, as per new company Law. It is
advised to attach a declaration **by director/ professional **that no such
order is required under new company law  for change of Regd Office within
city. *

 *COMPANY LAW UPDATE 24: **Audited Balance Sheet of 31.03.2014 must for
DPT-3 to be filed by 30th June*
 Dear Members,

Rule 16 of The Companies (Acceptance of Deposit) Rules, 2014 requires that
every company to which these rules apply, shall on or before the 30th day
of June, of every year, file with the Registrar, a return in
Form DPT-3 along with the fee as provided in Companies (Registration
Offices and Fees) Rules, 2014 and furnish the information contained therein
as on the 31st day of March of that year duly audited by the auditor of the
company.

Form DPT-3 will be filed as an attachment to Form GNL-2 (Circular No.
09/2014 dated 25.04.2014).

DPT-3 will be pre-certified by auditors of the company (Rule 12(b)(ii) of
The Companies Registration Offices and Fees (Amendment) Rules, 2014)

The computation of Net Worth in Form DPT-3 requires data of latest audited
balance sheet preceding the date of the return i.e. 31.03.2014.

Further, where in respect of any deposit accepted by a company before
01.04.2014, the amount of such deposit or part thereof or any interest due
thereon remains unpaid on 01.04.2014 or becomes due at any time thereafter,
the company is required to file Form DPT-4 (with attachment to Form GNL-2)
before on or before 30.06.2014.

Further, company is required to ensure repayment of such deposit on or
before 31.03.2015 or date of repayment, whichever is earlier.

It will also require Auditors certificate.

Members, may plan accordingly.


With regards,
CA. Amit G. Chandani |
ACA, ACMA, Lic. ICSI, B. Com |

Ph. No. | +91 94150 94009 | +91 95594 02410 |
E-mail | amitgc...@icai.org | amitgc...@gmail.com
<amitgc...@gmail.com>|

*COMPANY LAW UPDATE 23:*Recent Circulars & Notification of MCA

Circular No. 16/2014: Applicability of PAN requirements for Foreign
Nationals dated 10.06.2014.
Circular No. 17/2014: Filing of MGT-10 clarification dated 11.06.2014.
Circular No. 18/2014: Clarification for filing of Form No. INC-27 dated
11.06.2014.
Circular No. 19/2014: Matters relating to share capital and debentures
dated 12.06.2014.
 Notification dated 12.06.2014: Amendment of The Companies (Meeting of
Board & its Powers) Rules, 2014 dated 12.06.2014.

All attachments attached herewith.

 *COMPANY LAW UPDATE 22: *ROC Efilling problem: Raise a ticket & Email
problem to Infosys
 STEP 1: Raise a ticket

STEP 2: Email problem to Infosys personnel  along with  error  message and
 form so  that  they  will  resolve  the  issue.  Kindly  inform  to  your
 friends also.

Bhasker Subramanian <Bhas...@infosys.com>
Mayank Wadhera <Mayank_...@infosys.com>

 *COMPANY LAW UPDATE 21: *
Professional & business bodies should represent to New Govt"New Co Law
againt "Development":Good lesson for our MCA Minister::Political party &
Minister who made Co Law as criminal Law as "CRIMINAL LAW" is out of power:
A lession for new party
1) A political party who has made company law as "CRIMINAL LAW"(lots of
prosecution provision, disproportionate penalty provisions)   IS OUT OF
POWER. MCA Minister has lo
 s
t by 1.5 Lakhs
 votes.

2
) People now think better not to form a Company.

3
)
New Company law is against development of corporate form of business in
India.
Will New party make some amendments in Company Law so that favorable
business environment can be restored?

*4) Professional & business organisation such as ICAI, ICSI, ICWAI,
Different chamber of commerce etc should represent to New Govt & take
advantage of change in political scenario.*

 *COMPANY LAW UPDATE 20: *
CL:
Donot accept appointment from 1/4/2014
if already holding 20 Cos Audit:
CA Nitesh More
1)      As per Section 141(3)(g), which is applicable from 1/4/2014,the
following persons shall not be eligible for appointment as an auditor
of a company, namely:--a person who is in full time employment
elsewhere or a person or a partner of a firm holding appointment as
its auditor, if such persons or partner is at the date of such
appointment or reappointment holding appointment as auditor of more
than twenty companies;

2)      As per General Circular 08/2014, the financial statements (and
documents required to be attached thereto), auditors report and Board
report in respect of financial years that commenced earlier than 1st
April, 2014 shall be governed by the relevant provisions/ Schedules/
rules of the Companies Act, 1956 and that in respect of financial
years commencing on or after 1* April, 2014, the provisions of the new
Act shall apply.
3)      My comments: Although audit report in respect of financial years
that commenced earlier than 1st April, 2014 shall be governed by the
relevant provisions/ Schedules/ rules of the Companies Act, 1956, a
person shall not be eligible for appointment as an auditor of a
company, if he holds appointment of more than 20 companies on or after
1/4/2014. There is no relaxation for disqualification of auditor u/s
141 in this circular.
4)      Kindly note that those who have already appointed under Companies
Act, 1956 for more than 20 companies can continue. However, he cannot
accept appointment from 1/4/2014 if he is at the date of such
appointment or reappointment holding appointment as auditor of more
than twenty companies

 *COMPANY LAW UPDATE 1 9: *
CL:If any Loan existing on 1st April,2014 received by a Pvt Ltd co from its
shareholders, Director's relatives,can these be treated as deposits &
should statement in "Form DPT4" be filled to ROC by 30th June,2014 & all
dues to be repaid within 1 year?:
CA Nitesh More
*1)      **Loan is covered under definition of deposits under both Company
Act, 1956 & 2013 read with both deposit Rules, 1975 & 2014.*

*2)      **a) However, if loan is received from any other company by any
co., than it is not covered as deposits under both Co Laws read with both
deposit Rules.*

*b)      **If loan is received from directors or shareholders or director's
relative by pvt ltd co, than these were not  covered as deposits under Co
Act, 1956 read with deposit Rules, 1975. However, if such loan is received
by Public Ltd co than these were covered as deposits under Co Act, 1956
read with deposits Rules, 1975.*

*Under New Company law, if loan is received by any company (both Public &
Pvt) from directors, than it will not be covered as deposits. However, If
loan is received from shareholders or director's relative by any Co, than
these will be covered as deposits.*

*c)       **If loan is received from other individuals by either Pvt Ltd Co
or Public Ltd Co, than these will be covered as deposits under both Co Law
read with both deposit Rules.*

*3)      **a) As per sec 74 of Co Act, 2013,* If *deposit or any interest
remains unpaid on commencement of this Act, co. shall **file, within 3
months, with ROC a statement in "Form DPT4"of all deposits accepted & sums
remaining unpaid and Co repay the dues within 1 year i.e. by 31st march,
201*
*5*


*. b) Tribunal may, on application made by co., allow further time to repay
the deposit.c) Penalty - Company - shall pay deposit and interest along
with fine Rs. 1 crore to Rs. 10 crores and officer in default -
Imprisonment upto 7 years or fine Rs. 25 Lakhs to Rs. 2 Crores, or both.*

 *4)      **A question arise if any loan is received by Pvt Ltd Co. from
 shareholder or director's relative under Co Act, 1956 should  we include
these as deposit in Form DPT4 or not?*

  *a)      **ONE VIEW:  Yes, include these as deposits in Form DPT4.*

*Reasons:*

*i) The meaning of the term "deposit" under sec 74 under Co Act, 2013 will
be as per sec 2(34) of the Co Act, 2013. Hence, these will be included as
deposits in Form DPT4.*

*ii) The intention of introduction of sec 74 is to repay all old deposits
within one year time or extended time. MCA wants that all deposits accepted
have to follow new Act & New Rules.*

*iii) This view can also be supplemented by the fact that legislature  is
giving enough time i.e. 1 year time  to repay the deposits existing on
1st April, 2014 to comply with new Act & New Rules.*

*iv) ROC is expected to take this view .*

*b)      **ANOTHER VIEW: No, do not include these as deposits in Form DPT4.*

*Reasons:*

*i) These were not deposits at the time when these loans have been
received. Hence, sec 74 will not be applicable for such deposits.*

*ii) What was not a deposit at the time of receiving deposits cannot &
should not be subsequently compelled to repay by bringing it under ambit of
deposits.  *
 *COMPANY LAW UPDATE 1 8: *
* PROVISION RELATED TO COMPANY'S STATIONERY INCLUDING LETTER HEAD*
 As per companies Act 2013, companies are required to get its name, address
of its registered office and the Corporate Identity Number along with
telephone number, fax number, if any, e-mail and website addresses, if any,
printed in all its business letters, billheads, letter papers and in all
its notices and other official publications from 01/04/2014.
*PROVISION RELATED TO DIRECTOR'S*
As per companies Act, 2013 a person is allowed to hold directorship in 20
companies only, out of which not more than 10 could be public companies
including private ltd companies. if the person is the director in more than
the above mentioned limit then he has to resign from the other companies in
the excess of above limit
* within one year from the commencement of the act.*
Further director's of the company has to mention their name & DIN
(Director Identification
Number) with their signature i.e. all the documents containing the
signature of director, director's name & DIN shall also be mentioned along
with their Signature.
*PROVISIONS RELATED TO ALLOTMENT OF SHARES*
Companies are time bound to allot the shares within a period of sixty (60)
days from the date of receiving application. If they fail to allot the
shares within prescribed duration then the entire amount should be repaid
by companies within 15 days to the respective applicants.
Non repayment within prescribed duration would be considered as default &
from the 76th day, the whole application money held by company will be
treated as deposit.
Further, application money received by the company for allotment of shares
cannot be utilized for any other purpose & a separate bank account shall be
maintained for receiving the application money from the applicant & all the
transaction related to allotment shall be done through that account only.
In the light of above mentioned provisions, our views are that all the
companies shall repay the application money held as on 31/03/2014 before
*30th* *May 2014.*
*PROVISIONS RELATED TO LOAN FROM SHAREHOLDERS*
All the companies who had taken Deposit shall file the return to ROC with 3
months from the commencement of this Act & repay the loan to its
shareholders within one year from the date of commencement of this act.
In respect to the above provision amount taken by the company from its
shareholder will also cover in the definition of deposit
*PROVISION RELATED TO DIRECTORSHIP OF THE COMPANY*
From the date of commencement of this Act, Every Company is required to
have minimum one resident director. Here resident means "director who
stayed in India for 182 days or more in previous *calendar year"*
For existing companies, company should fulfill the requirement of the
resident director within one year from the date of notification.

 *COMPANY LAW UPDATE 1 6: *
CL: Some key highlights of New Provisions applicable w.e.f. April 1, 2014
under Companies Act, 2013

1. Now, the *Appointment of Company Secretary* is required only for Public
Limited Companies having paid up capital more than 10 Crores whereas
Private Limited Companies are exempted from appointment of Key Managerial
Personnel.



2. *Form MGT 7*: Annual Return with exhaustive verification and
authentication is mandatory by the Company Secretary in Whole time Practice
for all the companies not having a Company Secretary in Employment in Form
No. MGT 7 comprising the Registration Details, Name and Location of the
Company and other clauses relating to Principal Business Activity of the
Company, Particulars of Holding, Subsidiary and Associates Company, Changes
in Authorised, Issued, Subscribed and Paid-up Share Capital including
Preference Share Capital, Debentures, etc., Turnover and Net Worth of the
Company, Shareholding Pattern and changes thereof, Indebtness, Details of
Members, Debenture holders, etc. Composition of Board of Directors, Key
Managerial Personnel, CFO, Full details of Meeting of
Members/Board/Committees of Directors alongwith Attendance particulars,
Remuneration details of MD, WTD, Other Directors and Key Managerial
Personnel covering particulars of Gross salary, Value of perquisites,
Profits in lieu of salary, commission, etc, Details of
Penalties/Punishment/Compounding of Offences by company/directors and other
officers, Details of Compliances with respect to Returns filed with ROCs,
Disclosures of Closure of Register, Declaration of Interim/Final Dividend,
Particulars of Inter-corporate Loans, Investments, Contracts in which
Directors are interested/related party transaction, Resolutions passed by
Postal Ballot, Details of Shares held by or on behalf of FII, Details
regarding Corporate Social Responsibility, Limits on Loans and Investments
and Restrictions on Powers of Board, etc.



3. THE COMPANY HAS TO FILE *FORM MGT 9* WITH THE *DIRECTORS REPORT*
 COMPRISING *EXTRACTS OF ANNUAL RETURN AS GIVEN IN FORM MGT 7*.



4. *Form MGT 8*: *Annual Return Certification* is compulsory from
Practicing Company Secretary for Listed Companies and the Companies having
Paid Up Capital more than 10 crores or Turnover 50 Crores in Form MGT 8.



5. As per Section 204(1) *Secretarial Audit in Form MR-3* from Practicing
Company Secretary is compulsory for every Listed Company and Public Limited
companies having Paid Up Capital more than 50 Crores or Turnover 250 Crores
or more. This requires compliances under various other Acts, also namely
the Companies Act, 2013, the Securities Contact Regulation Act, 1956, the
Depositories Act, 1996, the Foreign Exchange Management Act, 1999 and rules
and regulations made thereunder and the Securities and Exchange Board of
India Act, 1992 and the rules and regulations made thereunder.



6. As per Section 12(3)(c) every company shall *ensure* that its *name,
address of its registered office and the Corporate Identity Number (CIN)
along with telephone number, fax number, if any, e mail and website
addresses*, if any, shall be printed *in all* its business letters,
billheads, letter papers and in all its notices and other *official
publications*. CIN to be printed on all letter heads and printed material
of company like invoice etc along with its registered office and corporate
office address.



7. *Borrowings* should be only from Directors. If taken from others then it
will be treated as Deposit and Deposit rules have to be followed.



8. *Unsecured Loan* can be taken from Promoters only if any stipulation is
imposed by the Financial Institution or Bank.



9. As per *Section 185* Loan to Directors or the companies in which there
are common directors or shareholders is prohibited.



10. All companies will have to pass *Special Resolution* under Section 180
for taking approval from Shareholders for approving
 *limit of Total loan to be taken from the Financial Institution*.



11. As per Section 177 *Audit Committee, *and as per Section 178* Remuneration
Committee and Nomination Committee* is required to be constituted in case
of Public companies having Paid up capital of Rs. 10 crores or more or the
companies having turnover more than Rs. 100 crores or more or having
outstanding loans/ debentures/deposit exceeding Rs. 50 crores or more.



12. As per Section 149(4) every Listed Company shall have at least one
third of the total number of directors as *Independent Directors* and every
public companies having paid up capital of Rs.10 crores or more or Public
companies having turnover of Rs.100 crores or more or Public companies
having, in aggregate, outstanding loans, debentures and deposits exceeding
Rs.50 crores shall have at least two Independent Director.



13. *Consolidation of accounts* is mandatory in case of subsidiary or
associate companies. Where associates companies are those in which a
company having control of 20% or more in share capital of other company.



14. As per Section 135 *Corporate Social Responsibility(CSR)* the companies
having profit more than Rs. 5 Crores in any of the end of Financial Year,
the company is required to incur the expenses on CSR equal to 2% of Average
profits of last 3 years. For this CSR, Committee of 3 directors is required
to be constituted where there will be at least 2 independent directors who
will formulate the CSR Policy and the same will have to be published on the
Website of the Company.


 *COMPANY LAW UPDATE 1 5: *
IMMEDIATE CONCERN W.E.F. APRIL 1, 2014 W.R.T. COMPANIES ACT 2013

1. Appointment of CS for Public Limited Companies having paid up capital
more than 10 Crores whereas Private Limited Companies are exempted from
appointment of KMPs
2. Annual Return Certification is compulsory from Practicing CS for the
companies having Paid Up Capital more than 10 crores or Turnover 50 Crores
in MGT 8 Form
3. Secretarial Audit from Practicing Company Secretary is compulsory for
Public Limited companies having Paid Up Capital more than 50 crores or
Turnover 250 Crores or more
4. CIN to be printed on all letter heads and printed material of company
like invoice etc along with its registered office and corporate office
address
5. Borrowing should be only from Directors. If taken from others then it
will be treated as Deposit and Deposit rules have to be followed. (Deposit
Rules 1 (C)(viii) PAGE 7
6. Unsecured Loan can be taken from Promoters only if any stipulation is
imposed by the Financial Institution or Bank namely. {Chapter 5 Deposit
Rules 1 (C)(xiii) PAGE 7}
7. Loan to Directors, or the companies in which there are common directors
or shareholders is strictly prohibited under Section 185
8. Rotation of Statutory Auditor is required after transition period of 3
years form applicability of Companies Act 2013
9. Auditors can now audit only up to total 20 companies where as public
limited companies can be 10 only
10. All companies will have to pass special resolution u/s. 180 for taking
approval from Shareholders for approving limit of Total loan to be taken
from the Financial Institution
11. Audit Committee, Remuneration Committee and Nomination Committee is
required to be constitute in case of Public companies having Paid up
capital of Rs. 10 crores or more or the companies having turnover more than
Rs. 100 crores or more or having outstanding loans/ debentures/ deposit
exceeding Rs. 50 crores or more.
12. At least Two Independent Director are required to be appointed in
Public companies having Paid up capital of Rs. 10 crores or more or the
companies having turnover more than Rs. 100 crores or more or having
outstanding loans/ debentures/ deposit exceeding Rs. 50 crores or more.
13. Consolidation of accounts is mandatory in case of subsidiary or
associate companies. Where associates companies are those in which a
company having control of 205 or more in share capital of other company.
14. If the companies having profit more than Rs. 5 crores in any of the end
of Financial Year, the company is required to incur the expenses on CSR
equal to 2% of Average profits of last 3 years. For this CSR Committee of 3
directors is required to be incorporated where there will be at least 2
independent directors who will formulate the CSR Policy and the same will
have to be publish over the Website of the Company.

 *COMPANY LAW UPDATE 1 4: *
CL: Secretarial audit be applicable from FY 2014-15: By CS Vinod Kothari
Will secretarial audit be applicable for the AR to be filed this year?
Companies will be preparing and filing annual return, with ref to position
as on 31st March 2014, after the AGM. As per sec 204, the annual return in
case of listed companies and "specified companies" has to be accompanied by
secretarial audit report.
Rule 9 of Appointment and Remuneration of Personnel Rules provides no
clarity whether the AR filed after the forthcoming AGM has to be
accompanied by the secretarial audit report.
However:
(a) In terms of sec 179 (3), the appointment of secretarial auditor has to
be done in a board meeting. This does not surely have to be the first board
meeting held in the current year.
(b) Form MR-3 clearly refers to secretarial audit report for a financial
year. One of the primary reporting obligations of the secretarial auditor
is compliance with Companies Act 2013, which mostly applied only from 1st
April 2014.
(c) The secretarial audit report is annexure with the board report. Many
companies may be placing their board report soon. Listed companies only
have 60 days window.
Clearly, the secretarial audit pertaining to compliances spanning over an
entire financial year cannot be completed within days or weeks - it is an
effort stretching over a period.
*Considering above, we would hold a prima facie view that the secretarial
audit report applies on financial year basis, and therefore, applies only
for FY 2014-15*

 *COMPANY LAW UPDATE 1 3: *
Cl:Observe SS-5 for Minutes effective 1st April, 2014: Mamta Binani
 Sec 118(10) of the Companies Act, 2013 provides that "every company shall
observe Secretarial Standards with respect to *general and board
meetings* specified
by the Institute of Company Secretaries of India..."

Sec 118 is notified and shall be in force from 1st April, 2014

Secretarial Standard (SS)-5 on Minutes has already been issued by Institute
of Company Secretaries of India, You may please click on the link below to
read the same.

http://www.icsi.edu/WebModules/Publications/SSONMINUTES(SS5).pdf


 *COMPANY LAW UPDATE 1 2: *
How to file PAS 3 without attaching PAS 5 etc for old allotments under
companies Act 1956?
CA Nitesh More
Those who have not yet filled Form 2 for allotments made under companies
Act 1956, are requested to file new form PAS 3 without attaching  PAS 5 etc
. but enclosing an attachment that no such attachments are required as
allotment have made under companies Act 1956 .

Step 1 fill up  PAS 3
Step 2 A*ttachment with PAS 3:* A declaration that no attachments such as
PAS 5, valuation report etc. are required as allotment have made under
companies Act 1956

*COMPANY LAW UPDATE 1 1: *
CL:LOAN GIVEN BY HOLDING CO TO SUBSIDIARY CO DOES NOT ALWAYS ATTRACT
SEC185: BY CA Nitesh More


*LOAN GIVEN BY HOLDING CO TO SUBSIDIARY CO DOES NOT ALWAYS ATTRACT SEC 185:
BY CA Nitesh More*

There is a general conception that if subsidiary co do not utilize loan
given by its holding co for its principal business, provisions of sec 185
is attracted each & every time. In other words, if loan given or guarantee
given or security provided by holding co to its subsidiary is not exempted
by the Rule 10 of the Companies (Meetings of Board and its Powers) Rules,
2014, Sec 185 is violated.

The above view is not correct. One should first examine whether the
provision of 185 is attracted by examining shareholding & directorship of
holding and subsidiary company. There can be many instances when the basic
provisions of sec 185 is not attracted, if any loan is given by holding co
to Its subsidiary co.. This can be explained as follows:

 *COMPANY LAW UPDATE 1 0: L**OAN GIVEN BY HOLDING CO. TO SUBSIDIARY CO. &
VICE VERSA**: Let us first examine provision of sec 185:*

 *Provisions of Section 185(1):* "Save as otherwise provided in this Act,
no company shall, directly or indirectly, advance any loan, including any
loan represented by a book debt,  to any of its directors or to any other
person in whom the director is interested or give any  guarantee or provide
any security in connection with any loan taken by him or such other  person.

Explanation: For the purpose of this section, the expression "to any other
person in whom director is interested" means -

(a) Any director of the lending company, or of a company which is its
Holding Company or any partner or relative of any such director;

(b) Any firm in which any such director or relative is a partner;

(c)Any private company of which any such director is a director or member;

(d) Any body corporate at a general meeting of which not less than twenty
five percent two or more such directors, together or

(e) Any body corporate, the Board of directors, managing director or
manager, whereof of the total voting power may be exercised or controlled
by any such director, or by is accustomed to act in accordance with the
directions or instruction of Board, or of any director or directors, of the
lending company.

Let us take an example & examine a situation:

*Example: * H Ltd has given a loan of Rs 10 crores to S Ltd. There is
neither any common director nor any common shareholder in between these two
companies. Examine applicability of sec 185.

*Ans:* Assuming that there is neither any common shareholder nor any common
director in holding co and subsidiary company, Sec. 185 is not attracted.

*SUCH LOAN WILL NOT BE COVERED IN CLAUSE (a),(b),(c),(d) & (e)*

*      Clause (a) (as applicable for individual) or

*      Clause (b) (as applicable for Firm),

*      Clause (c) (for Pvt Ltd co., *only if director* is a director or
member),

*      Clause (d) (*only if the director *either by himself or two or more
such directors hold 25% or more of total voting power in the borrowing
company,

*      Clause (e) (only if borrowing company /its Board/Directors are
*accustomed
to act *as per the Directors of the board/Directors of the lending company.
It is very difficult to prove that the board of subsidiary co has not only
actually acted, but also accustomed* to act *as per the Directors of the
board/Directors of the lending company.



*Note:* Any interest of director (or other person) in his "personal
capacity (not holding as nominee of company)" is relevant to attract Sec.
185. Interest of holding co. in subsidiary is not relevant.

*SPECIFIC EXEMPTIONS PROVIDED TO LOAN GIVEN BY HOLDING CO TO
SUBSIDIARIES: *There
can be many instances when the loan or security provided by holding company
to subsidiary is attracted by the provisions of sec 185. Let us illustrate
such situations:

Example 1: When subsidiary company is a pvt Ltd Co. & some shares of
subsidiary co is held by one or more director(s) of holding Co.

Example 2: When subsidiary company is a pvt Ltd Co. & One of the director
of holding co is also a director in subsidiary Co.

Example 3: When one or more of such directors hold 25% or more of total
voting power in the subsidiary company

In such cases, Rule 10 provides specific exemptions from attractions of sec
185 provisions subject to some conditions mentioned in the said Rule. Rule
10 of the Companies (Meetings of Board and its Powers) Rules, 2014 states
the following:

(1)   Any loan made by a holding co to its *wholly owned subsidiary co *or
any guarantee given or security provided by a holding co in respect of any
loan made to its wholly owned subsidiary co is exempted from the
requirements under this section; and



(2)   Any guarantee given or security provided by a holding company in
respect of loan made by any bank or financial institution to its *subsidiary
company* is exempted from the requirements under this section:

*Provided *that such loans made under sub-rule (1) and (2) are utilised by
the subsidiary company for its *principle business activities.*

 *Conclusion:*

1)      Every loan by holding co to its subsidiary co is not attracted by
sec 185 even if money is not utilized for principal business activities.

2)      One should first examine whether the basic provision of 185 is
attracted by examining shareholding & directorship pattern of holding and
subsidiary company.

3)      If provisions of sec 185 is attracted, than one should examine
whether such loan is exempted under Rule 10 of the Companies (Meetings of
Board and its Powers) Rules, 2014.

4)      If it is not exempted under Rule 10, than only there will be
violation of sec 185.


 *COMPANY LAW UPDATE 9: *
ROC to conduct inquiry against professionals: MCA General Circular
No.10/2014:Certify e-forms taking extra care


 Where any instance of filing of documents, application or return or
petition etc. *containing false or misleading information or omission of
material fact or incomplete information is observed*, the Regional Director
or the Registrar as the case may be, shall conduct a *quick inquiry against
the professionals* who certified the form and signatory thereof including
an officer in default whoappears prima facie responsible for submitting
lalse or misleading or incorrect information pursuant to requirement of
above said Rules; 15 days notice may be given for the purpose.

*So, kindly certify e-forms taking extra care.*


 *COMPANY LAW UPDATE 8: *
How to Incorporate a new private limited company: complete process

*Incorporating a new private limited company*

*INC-1 (Name approval)*

1.)    DIN and DSC of the proposed directors

a.       For DIN

                                                               i.      DSC

1.       PAN card copy attested by Bank

2.       Address Proof copy attested by bank

3.       Filled up form

                                                             ii.      Attested
PAN card copy

                                                           iii.      Attested
copy of Passport / Driver's License / Aadhar / Election ID / Electricity /
Telephone not older than 1 month

                                                           iv.      Scanned
photograph of the applicant

                                                             v.      DIR-4
application filed by the applicant as a affidavit

2.)    6 proposed names in order of choice

3.)    Proposed activity to be undertaken in the company



*INC-7 (Incorporation of Company)*

1.)    Educational Qualification of all the proposed signatories to the
memorandum

2.)    Attested address proof of all the proposed signatories to the
memorandum

3.)    Duration of stay at the present address. If less than one year then
previous address also

4.)    Contact numbers of the proposed applicants

5.)    Proof of identity and Residence of applicants

6.)    Ratio of shares to be held by each applicant

7.)    CIN of companies in which the director is already a director /
promoter

8.)    Memorandum and Articles

a.       Last pages to be signed and written in his own handwriting by the
subscribers

9.)    Declaration by the professional involved in INC-8

10.)   Signed and attested INC-10

11.)   Affidavit in INC-9 by the promoters



*INC-22 (Registered Office)*

1.)    Proposed registered address of the company

2.)    Whether the address is

a.       Owned by the company (Proof of the same) *OR*

b.       Owned by Director and not taken on lease *OR*

c.       Taken on lease (Rent agreement along with Rent receipts) OR

d.       Owned by other but not taken on lease (Proof that the company is
allowed to use)

3.)    Proof of address (Telephone / Gas / Electricity / Mobile) not older
than 2 months

4.)    List of all companies registered at the same address



*DIR-12 (Appointment of Directors)*

1.)    Affidavit by each proposed director in INC-9 and DIR-2

Dhruv Seth | F.C.A., D.I.S.A. (ICAI) | Seth & Associates | Chartered
Accountants | 90, Pirpur Square, Narahi, Lucknow-226001 | Phone :-
0522-2288287 (o) , +91 9935522611 (m) | Website - www.sethspro.com


 *COMPANY LAW UPDATE 7:*All directors disqualifies if company not files
annual returns or audited financial statements for 3 years:Onus of annual
reports on directors

 Onus of annual reports on directors

M Allirajan
<http://timesofindia.indiatimes.com/toireporter/author-M-Allirajan.cms>, TNN
 | Apr 29, 2014, 01.18AM IST

The new Companies Act
<http://timesofindia.indiatimes.com/topic/new-Companies-Act> spells serious
trouble for directors of
any private or public company
<http://timesofindia.indiatimes.com/topic/public-company> that has not
filed for three years its annual returns
<http://timesofindia.indiatimes.com/topic/annual-returns> or audited
financial statements
<http://timesofindia.indiatimes.com/topic/audited-financial-statements>,
and the board's report. The new Act, which came into effect from April 1,
disqualifies such directors for a period of five years, including the
company in which the default has occurred. Private companies were not
included in disqualification provisions under the Companies Act, 1956.

About 13.95 lakh companies were registered with the Registrar of Companies
(RoC) at the end of March 2014. Of this, about 9.52 lakh companies remain
active. Interestingly, just 25 directors were disqualified under the
Companies Act, 1956, till March 25, according to data with the ministry of
corporate affairs (MCA). Of these, 16 were disqualified as their companies
failed to file annual accounts and returns, the MCA data showed.

About 25-30% of the active registered companies would be in default if the
new provisions are applied, says K S Ravichandran, partner, KSR & Co
Company Secretaries. Many private and public companies have not filed
returns, statements and reports for several years.


 *COMPANY LAW UPDATE 6: *
CL: If any Loan existing on 1st April,2014 received by a Pvt Ltd co from
its shareholders,Director's relatives & other individuals,can this be
treated as deposits & should statement in "Form DPT4" be filled to ROC by
30th June,2014 & all dues to be repaid within 1 year as required u/s 74 of
Co Act,2013?: BY CA NITESH MORE

1) Loan is covered under definition of deposits under both Company Act, 1956
& 2013 read with both deposit Rules, 1975 & 2014.
2) a) However, if loan is received from any other company by any co., than
it is not covered as deposits under both Co Laws read with both deposit
Rules.
b) If loan is received from directors or shareholders or director's
relative by pvt ltd co, than these were not covered as deposits under Co
Act, 1956 read with deposit Rules, 1975. However, if such loan is received
by Public Ltd co than these were covered as deposits under Co Act, 1956
read with deposits Rules, 1975.
Under New Company law, if loan is received by any company (both Public &
Pvt) from directors, than it will not be covered as deposits. However, If
loan is received from shareholders or director's relative by any Co, than
these will be covered as deposits.
c) If loan is received from other individuals by either Pvt Ltd Co or
Public Ltd Co, than these will be covered as deposits under both Co Law
read with both deposit Rules.
3) a) As per sec 74 of Co Act, 2013, If deposit or any interest remains
unpaid on commencement of this Act, co. shall file, within 3 months, with
ROC a statement in "Form DPT4"of all deposits accepted & sums remaining
unpaid and Co repay the dues within 1 year i.e. by 31st march, 2014.
b) Tribunal may, on application made by co., allow further time to repay
the deposit.
c) Penalty - Company - shall pay deposit and interest along with fine Rs. 1
crore to Rs. 10 crores and officer in default - Imprisonment upto 7 years
or fine Rs. 25 Lakhs to Rs. 2 Crores, or both.
4) A question arise if any loan is received by Pvt Ltd Co. from shareholder
or director's relative under Co Act, 1956 should we include these as
deposit in Form DPT4 or not?

a) ONE VIEW: Yes, include these as deposits in Form DPT4.
Reasons:
i) The meaning of the term "deposit" under sec 74 under Co Act, 2013 will
be as per sec 2(34) of the Co Act, 2013. Hence, these will be included as
deposits in Form DPT4.
ii) The intention of introduction of sec 74 is to repay all old deposits
within one year time or extended time. MCA wants that all deposits accepted
have to follow new Act & New Rules.
iii) This view can also be supplemented by the fact that legislature is
giving enough time i.e. 1 year time to repay the deposits existing on 1st
April, 2014 to comply with new Act & New Rules.
iv) ROC is expected to take this view .
b) ANOTHER VIEW: No, do not include these as deposits in Form DPT4.
Reasons:
i) These were not deposits at the time when these loans have been received.
Hence, sec 74 will not be applicable for such deposits.
ii) What was not a deposit at the time of receiving deposits cannot &
should not be subsequently compelled to repay by bringing it under ambit of
deposits.



 *COMPANY LAW UPDATE 5:p**rocedure for appointment of Additional Director
in Private Company*

 Dear All,

I would like to compile the procedure for appointment of Additional
Director in Private Company (Purely Private) taking the route of
appointment of Director by Board. Please go through the procedure and
relevant documentation listed below and share your opinion/correct the
procedure.

1. Check whether articles of the Company contain power/authorisation to
appoint Additional Director read with Section 161(1) of the Companies Act,
2013.

2. Collect DIN number of the proposed director u/s 153 read with from DIR-3
and DIR-4.

3. Collect following Documents/Consent/Declaration from the proposed
director:

i. Consent in writing to act as Director in form DIR-2 pursuant to Rule-8
of Companies (Appointment & Qualification of Directors) Rules, 2014.

ii. Intimation in Form DIR-8 pursuant to Rule-14 in terms of Companies
(Appointment & Qualification of Directors) Rules, 2014, to the effect that
he/she is not disqualified u/s 164(2) of Companies Act, 2013.

iii. Disclosure of Interest in Form MBP.1 pursuant to section 184(1) read
with rule 9(1) of Companies (Meetings of Board and its Powers) Rules, 2014.

4. Hold a board meeting to pass following 2 resolutions:

i. Board Resolution for appointment of Additional Director u/s 161 of
Companies Act, 2013.
ii. Board Resolution for taking note of Disclosure of Interest in Form
MBP.1 u/s 184 of Companies Act, 2013.

5. File form DIR.12 with ROC as return of appointment of Additional
Director within 30 days of passing board resolution for appointment.

6. File form MGT.14 with ROC for filing resolution passed for taking note
of Disclosure of Interest in Form MBP.1 u/s 184 of Companies Act, 2013.

7. Make necessary entries in the Register of Directors along with their
Shareholding, if any, maintained u/s 170 of Companies Act, 2013.

Regularisation of Additional Director
Additional Director appointed by a Private Company Shall be regularized at
the ensuing AGM u/s 160 of the Companies Act, 2013. In erstwhile Companies
Act, 1956, corresponding section for Regularisation of Additional Director
was Section 257 which was not applicable to a Private Company.

However, under Companies Act, 2013, section - 160 is available to Private
Company for the purpose of Regularisation of Additional Director.

Request you all to guide about the procedure mentioned above.
 *COMPANY LAW UPDATE 4: *
System rectified to file DIR 11 as well DIR 12
As per verbal information received, you can file DIR 11 as well as DIR 12
one after other .

*COMPANY LAW UPDATE 3: *
*Have u filed MBP-1 & MGT-14 u/s 184?*
CA Manoj Sethia
As per Section 184 of the Companies Act, 2013, and Rule 8 and 9 of the
Companies (Meetings of Board &  its Powers) Rules, 2014, every director
shall at the first meeting of the Board of every year, has to give
disclosure of interest/concern in form MBP 1 and the same has to be filed
with Registrar of Companies in MGT-14 within 30 days from the date of Board
Meeting in which such disclosure is made.
Apart from that  there are various resolutions of Board of Directors
prescribed by  Rule 8 of the Companies (Meetings of Board &  its Powers)
Rules, 2014, and section 179(3) which need to filed with MCA, WHICH ARE
ALMOST DUPLICATION OF NORMAL WORK.

Kindly arrange to file the same to avoid penalty and default.

 *COMPANY LAW UPDATE 2: *

*STEPS IN CASE OF RESIGNATION BY EXISTING AUDITORS*

01.                Receive the Resignation Letter with Form No.ADT-3 From
the resigning Auditor

02.                Call a Board Meeting for acceptance of the resignation
and give power for filing the same with the ROC

03.                File the Form GNL-2 WITH ROC, Kolkata having ADT-3 and
resignation letter as attachment.

04.                Call a Board Meeting for filing the Casual Vacany and
approve the notice for EOGM .

05.                Held the EOGM and pass approve the Auditor's Appointment

06.                Now file Form No.MGT-14 for the filing of the Resolution
passed at EOGM

07.                Now file GNL-2 with SRN of MGT-14 having ADT-1,
Auditor;s Acceptance as attachment

*COMPANY LAW UPDATE 1: *
OBTAIN AUTHORISATION FROM THE CO BEFORE DOING ANY PROF WORK

 *Wherever MCA Form requires certification by a professional while he
affixes his digital signature....... the professional needs to declare
that.............. "I declare that I have been duly engaged for the purpose of
certification of this form.........."*



*I have started taking the following declaration on the letter head of the
company from any director of the company.**Request members to suggest
improvements*
*& email to moreas...@gmail.com <moreas...@gmail.com>*
*.*



*TO WHOMSOEVER IT MAY CONCERN*





I, .................................. S/o. Shri ............ R/o
....................... being director (DIN: .................)
of the company named ......................... Private Limited, (CIN:
...............................), am duly
authorized to represent the said company.



I declare that I am fully aware, conversant and engaged in the day to day
the management and administration of affairs and all financial matters
relating to said company.



I further declare that I am competent to state the facts and delegate
authorization in the manner as follows:



*In respect of Board Meeting:*



1.    That a meeting of board of directors was actually held on
.................2014
at 11.00 am at the head office of the company at ..................
Road, Kanpur -
208001 at which unanimous resolution has been passed for allotment of
187500 (no. of) equity shares of Rs. 10 each at a premium of Rs. 30 per
share.



2.    That Notice calling the said meeting was served on all the members of
the Board of the company through ordinary post /courier/by hand on
15.03.2014 and the following Directors /shareholders were present at that
meeting:



*Name of the Director*

*Address*

*No of Equity Shares held*

*Present or Absent*









*In respect of Extraordinary General Meeting:*

1.    That an extraordinary general meeting was actually held on 20.03.2014
at 01.00 pm at the head office of the company at ....................
Road, Kanpur -
208001 at which unanimous resolution has been passed to increase the
authorised share capital from Rs. 20 Crore to Rs. 20 Crore 25 lacs.



2.    That Notice calling the said meeting was served on all the members of
the Board of the company through ordinary post /courier/by hand on
20.02.2014 and the following Directors /shareholders were present at that
meeting:



*Name of the Director/Member*

*Address*

*No of Equity Shares held*

*Present or Absent*













3.    That I have authorized Mr. ............ S/o
...................... R/o ................... (Practicing
Company Secretary, FCS No. ............) to acquire and apply digital
signature for
and on my behalf, if required and use the same for purpose of filing
appropriate forms and papers with the office of the Registrar of companies
and for all matters incidental or consequential thereto.



All forms and papers digitally signed by me shall be deemed to have been
actually signed by me and shall have full force as if the same were
physically signed by me.





For ................................ Private Limited









(Managing Director)



Warm Regards

*"Team" CA.Nitesh  More* |  FCA, |

Visit our blog: caniteshmore.blogspot.com

*To receive updates,  send an email  for addin*g to group to *
moreas...@gmail.com
<moreas...@gmail.com>*



--


Warm Regards

*"Team" CA.Nitesh  More* |  FCA, |

Visit our blog: caniteshmore.blogspot.com

*To receive updates,  send an email  for addin*g to group to *
moreas...@gmail.com
<moreas...@gmail.com>*