CA 2Cor&OtLaw

© The Institute of Chartered Accountants of India
ii
This Study Material has been prepared by the faculty of the Board of Studies
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Basic draft of this publication was prepared by CA. Vandana D Nagpal.
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BEFORE WE BEGIN …
Evolving role of a CA - Shift towards strategic decision making
The traditional role of a Chartered Accountant restricted to accounting and

auditing, has now changed substantially and there has been a marked shift
towards strategic decision making and entrepreneurial roles that add value
beyond traditional financial reporting. The primary factors responsible for the
change are the increasing business complexities on account of plethora of laws,
borderless economies consequent to giant leap in e-commerce, emergence of
new financial instruments, emphasis on Corporate Social Responsibility,
significant developments in information technology, to name a few. These factors
necessitate an increase in the competence level of Chartered Accountants to take
up the role of not merely an accountant or auditor, but a global solution provider.
Towards this end, the scheme of education and training is being continuously
reviewed so that it is in sync with the requisites of the dynamic global business
environment; the competence requirements are being continuously reviewed to
enable aspiring Chartered Accountants to acquire the requisite professional
competence to take on new roles.
Skill requirements at Intermediate Level
At the Intermediate Level, you are expected to not only acquire professional
knowledge but also the ability to apply such knowledge in problem solving. The
process of learning should also help you inculcate the requisite professional skills,
i.e., the intellectual skills and communication skills, necessary for achieving the
desired level of professional competence.
Corporate and Other Laws: Dynamic & Interesting
Laws and rules, in general, regulate the relationship between business and
profession. In specific, a student should have knowledge of the legal framework,
which influences business transactions. This paper intends to make the students
aware of legal provisions of the selected laws and to analyse and apply the
related provisions addressing issues in moderately complex scenarios.
Paper 2 on Corporate and Other Laws is comprising of Company Law and Other
Laws. The syllabus of Corporate and Other Laws has been segregated into two
parts covering the following topics:

iv
Part I: Company Law (70 Marks) Part II: Other Laws (30 Marks)
I. The Companies Act, 2013 1. The General Clauses Act, 1897
II. The Limited Liability 2. Interpretation of Statutes

Partnership Act, 2008
3. The Foreign Exchange Management
Act, 1999
These laws of the country undergo significant changes through amendments/

notifications /circulars which are issued from time to time by their respective
governing authorities. Owing to the dynamic nature of the specified Acts
especially the Companies Act, 2013, the Limited Liability Partnership Act, 2008
and the Foreign Exchange Management Act, 1999, learning, understanding and
applying the provisions of law in problem solving is very interesting and
challenging.
The study material has been revised on the basis of the legislative developments
made up till 30th April, 2023.
Further, the legislative amendments (if any) which will be notified after 30th April,
2023 and which are relevant for a particular attempt, would be informed to the
students separately. Students are advised to check the Board of Studies
Knowledge Portal regularly for further development.
BoS (Academic) – Value added study materials
The Board of Studies (Academic) is the department which serves as the Institute’s
interface with its students. BoS (Academic) leaves no stone unturned to provide
the best-in-class services to you in terms of value-added study materials wherein
the concepts and provisions are explained in lucid language with illustrations,
diagrams, and examples to aid understanding the application of concepts and
provisions. Also, the representation of provisions has been changed, wherever
required, to bring more clarity and understanding of the concepts. Test Your
Knowledge Questions at the end of each chapter contain a rich bank of questions
which will hone your analytical skills.
Framework of Chapters– Uniform Structure comprising of specific

components
Efforts have been made to present the complex laws in a lucid manner. Care has
been taken to present the chapters in a logical sequence to facilitate easy
understanding by the students. The Study Material has been divided into three
modules for ease of handling by students.

v
The various chapters/units of each subject at the Intermediate level have been
structured uniformly and comprises of the following components:
Components of About the component

each Chapter
1. Learning Learning outcomes which you need to demonstrate
Outcomes after learning each topic have been given in the first
page of each chapter.
2. Chapter As the name suggests, the flow chart/ table/ diagram
Overview given at the beginning of each chapter would give a
broad outline of the contents covered in the chapter
3. Introduction A brief introduction is given at the beginning of each
chapter which would help you get a feel of the topic.
4. Content The concepts and provisions of specified Acts are
explained in student-friendly manner with the aid of
examples/ diagrams/ flow charts. Diagrams and Flow
charts would help you understand and retain the
concept/ provision learnt in a better manner.
Examples would help you understand the application
of provisions. These value additions would, thus, help
you develop conceptual clarity and get a good grasp
of the topic.
5. Summary A summary of the chapter is given at the end to help
you revise what you have learnt.
6. Test Your MCQ based questions: Solving MCQs will enhance
Knowledge your conceptual clarity and sharpen your analytical
skills.
Descriptive Questions: The exercise questions and
answers would help you to apply what you have
learnt in problem solving. In effect, it would sharpen
your application skills and test your understanding as
well as your application of concepts/provisions.
We hope that these student-friendly features in the Study Material makes your
learning process more enjoyable, enriches your knowledge and sharpens your
application skills.
Happy Reading and Best Wishes!

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SYLLABUS
PAPER – 2: CORPORATE AND OTHER LAWS

(100 Marks)
PART I – COMPANY LAW AND LIMITED LIABILITY PARTNERSHIP LAW

(70 MARKS)
Objective:
To develop an understanding of the legal provisions and acquire the ability to
analyse and apply the laws in practical situations.
Contents:
I. The Companies Act, 2013 – including important rules and drafting of

notices, resolutions etc.–
1. Preliminary
2. Incorporation of Company and Matters Incidental thereto
3. Prospectus and Allotment of Securities

4. Share Capital and Debentures
5. Acceptance of Deposits by Companies
6. Registration of Charges
7. Management and Administration
8. Declaration and Payment of Dividend
9. Accounts of Companies
10. Audit and Auditors
11. Companies Incorporated Outside India
II. The Limited Liability Partnership Act, 2008 including important Rules

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PART II- OTHER LAWS (30 MARKS)
Objectives:
(a) To develop an understanding of the General Clauses Act.
(b) To develop an understanding of the rules for interpretation of statutes
(c) To have basic understanding of the Foreign Exchange Management Act,
1999.
Contents:
1. The General Clauses Act, 1897: Important Definitions, Extent and
Applicability, General Rules of Construction, Powers and Functionaries,
Provisions as to Orders, Rules, etc. made under Enactments and
Miscellaneous Provisions.
2. Interpretation of Statutes: Rules of Interpretation of Statutes, Aids to
Interpretation, Rules of Interpretation/ Construction of Deeds and
Documents.
3. The Foreign Exchange Management Act, 1999: Significant definitions and
concepts of Current and Capital Account Transactions.
Note: If new legislations are enacted in place of the existing legislations, the
syllabus would include the corresponding provisions of such new legislations with
effect from a date notified by the Institute.
The specific inclusions/exclusions in the various topics covered in the syllabus will
be effected every year by way of Study Guidelines, if required.

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CONTENTS
MODULE 1
CHAPTER-1: Preliminary
CHAPTER-2: Incorporation of Company and Matters Incidental thereto
CHAPTER-3: Prospectus and Allotment of Securities
CHAPTER-4: Share Capital and Debentures
CHAPTER-5: Acceptance of Deposits by companies
CHAPTER-6: Registration of Charges
MODULE 2
CHAPTER-7: Management and Administration
CHAPTER-8: Declaration and Payment of Dividend
CHAPTER-9: Accounts of Companies
CHAPTER-10: Audit and Auditors
CHAPTER-11: Companies Incorporated Outside India
MODULE 3
CHAPTER-12: The Limited Liability Partnership Act, 2008
CHAPTER-1: The General Clauses Act, 1897
CHAPTER-2: Interpretation of Statutes
CHAPTER-3: The Foreign Exchange Management Act, 1999

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DETAILED CONTENTS: MODULE – 1
CHAPTER 1 : PRELIMINARY
Learning Outcomes............................................................................................................. ..... .1.1
Chapter Overview .................................................................................................................... 1.2
1. Introduction .................................................................................................................... 1.2
2. Short Title, Extent, Commencement and Application ......................................... 1.2
3. Definitions.............................................................................................................. ........... 1.4
Test Your Knowledge ............................................................................................................ 1.27
CHAPTER 2 : INCORPORATION OF COMPANY AND MATTERS INCIDENTAL

THERETO
Learning Outcomes ................................................................................................................. 2.1
1. Introduction to Incorporation of Companies & Promotor ................................ 2.3
2. Formation of Company ..................................................................... ........................... 2.4
3. Members Severally liable in certain cases i.e. Reduction in Minimum

Membership .................................................................................... ................................ 2.9
4. Incorporation of Company ........................... ........................................................... 2.10
5. Formation of Companies with Charitable Objects, etc. .................................... 2.20
6. Effect of Registration ................................................................................................. 2.27
7. Memorandum of Association – MOA .................................................................... 2.28
8. Articles of Association – AOA .................................................................................. 2.38
9. Doctrine of Constructive Notice and Doctrine of Indoor

Management. ............................................................................................................... 2.42
10. Act to Override Memorandum, Articles, etc. ....................................................... 2.46
11. Effect of Memorandum and Articles .................................................................... 2.46

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12. Alteration of memorandum ..................................................................................... 2.48
13. Alteration of articles ................................................................................................... 2.54
14. Alteration of memorandum or articles to be noted in every copy .............. 2.55
15. Registered office of company ................................................................................ 2.55
16. Commencement of business etc. .......................................................................... 2.59
17. Conversion of companies already Registered ................................................... 2.61
18. Subsidiary company not to hold shares in its Holding Company ................ 2.62
19. Service of documents ............................................................................................... 2.63
20. Authentication of documents, Proceedings and Contracts ........................... 2.65
21. Execution of Bills of Exchange, etc. ....................................................................... 2.65
Summary .................................................................................................................................. 2.67
CHAPTER 3 : PROSPECTUS AND ALLOTMENT OF SECURITIES

1. Introduction ................................................................................................................. 3.3
2. Public offer and Private Placement ...................................................................... 3.3
3. Regulation of issue and transfer of Securities etc. .......................................... 3.7
4. Prospectus .................................................................................................................... 3.8
5. Mis-statements in prospectus .............................................................................. 3.24
6. Punishment for fraudulently inducing persons to invest money .............. 3.32
7. Action by affected persons .................................................................................. 3.33
8. Punishment for personation for acquisition, etc., of securities .................. 3.34
9. Punishment for fraud .............................................................................................. 3.35
10. Allotment of securities by company ................................................................... 3.37
11. Securities to be dealt with in stock exchanges ............................................... 3.41

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12. Global Depository Receipt .................................................................................... 3.45

13. Private Placement ................................................................................................... 3.46
Summary .................................................................................................................................. 3.53
Test Your Knowledge ........................................................................................................... 3.54
CHAPTER 4 : SHARE CAPITAL AND DEBENTURES

1. Introduction ................................................................................................................. 4.3
2. Share Capital-Types ................................................................................................... 4.4
3. Certificate of shares ................................................................................................. 4.11
4. Voting Rights ............................................................................................................ 4.15
5. Variation of shareholders’ rights ........................................................................ 4.18
6. Calls on share ........................................................................................................... 4.20
7. Issue of shares at a premium or discount ........................................................ 4.22
8. Issue of Sweat Equity Shares ............................................................................... 4.26
9. Issue and Redemption of Preference Shares .................................................... 4.30
10. Transfer and Transmission of Securities and the Allied Provisions ........... 4.35
11. Alteration of share capital .................................................................................... 4.47
12. Debenture ................................................................................................................. 4.75
Summary .................................................................................................................................. 4.86
Test Your Knowledge ........................................................................................................... 4.87
CHAPTER 5 : ACCEPTANCE OF DEPOSITS BY COMPANIES

Chapter Overview ................................................................................................................... 5.2
1. Introduction ................................................................................................................. 5.2
2. Certain important terms explained ....................................................................... 5.2
3. Prohibitive provisions and exempted companies ........................................... 5.12

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4. Provisions regarding acceptance of deposits from members ..................... 5.13

5. Provisions regarding acceptance of deposits from public by
eligible companies .................................................................................................. 5.22
6. Punishment for Contravention of Section 73 or Section 76......................... 5.31
7. Repayment of deposits accepted before commencement of the
Companies Act, 2013 ............................................................................................. 5.32
8. Power of Central Government to Decide Certain Questions ....................... 5.33
Summary .................................................................................................................................. 5.33
CHAPTER 6 : REGISTRATION OF CHARGES
Chapter Overview ................................................................................................................... 6.2
1. Introduction ................................................................................................................. 6.2
2. Duty to Register Charges, etc. ............................................................................... 6.5
3. Deemed notice of charge ..................................................................................... 6.10
4. Consequences of non-registration of charge ................................................. 6.12
5. Application for Registration of Charge by charge-holder ............................ 6.13
6. Acquisition of property subject to charge and modification of charge ... 6.14
7. Register of Charges ................................................................................................. 6.16
8. Company to Report Satisfaction of Charge ..................................................... 6.18
9. Power of Registrar to Make Entries of Satisfaction and Release in

Absence of Intimation from Company .............................................................. 6.19
10. Intimation of Appointment of Receiver or Manager ...................................... 6.20
11. Punishment for Contravention ............................................................................. 6.21
12. Rectification by Central Government in Register of Charges ..................... 6.22
Summary .................................................................................................................................. 6.23

CHAPTER a
1
PRELIMINARY
LEARNING OUTCOMES
At the end of this chapter, you will be able to:

 To know about the extent and commencement of the
Companies Act, 2013.
 Identify about the application of the Act.
 Gain familiarity with the definition clause given in the Act.

a 1.2 CORPORATE AND OTHER LAWS
CHAPTER OVERVIEW
Preliminary chapter of the Act covers

Short title, extent and Application Definitions
commencement
1. INTRODUCTION
The Companies Act, 2013 is an Act to consolidate and amend the law relating to
companies. The legislation was necessitated to meet changes in the national and
international economic environment and for expansion and growth of economy
of our country.
The Companies Act, 2013 received the assent of the Hon’ble President of India on
29th August 2013 and was notified in the Official Gazette on 30 th August 2013 for
public information stating that different dates may be appointed for enforcement
of different provisions of the Companies Act, 2013, through notifications.
Section 1 came into force on 30 th August 2013; 98 sections came into force on
12th September 2013; 143 sections were enforced from 1 st April 2014 and so on.
The Companies Act, 2013 is rule based legislation with 470 sections and seven
schedules. The entire Act has been divided into 29 chapters. Each chapter has at
least one set of Rules. The Companies Act, 2013 aims to improve corporate
governance, simplify regulations and strengthen the interests of investors. Thus,
this enactment makes our corporate regulations more contemporary.
2. SHORT TITLE, EXTENT, COMMENCEMENT

AND APPLICATION
Section 1 of the Companies Act, 2013 deals with the title of the Act according to
which this Act may be called as the Companies Act, 2013.

PRELIMINARY 1.3 a
Further, section deals with the extent to the applicability of the Act. It says that
the Act shall extend to the whole of India.
This section also specifies the date of commencement of this Act. Accordingly,
this section shall come into force at once and the remaining provisions of this Act
shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint and different dates may be appointed
for different provisions of this Act and any reference in any provision to the
commencement of this Act shall be construed as a reference to the coming into
force of that provision.
This Section furthermore states of the applicability of the Act. The provisions of
this Act shall apply to-
(a) companies incorporated under this Act or under any previous company law;
Example 1: ABC Ltd. was incorporated on 1.1.1972 under the Companies Act,
1956. So, the Companies Act, 2013 shall also be applicable on ABC Ltd.
(b) insurance companies, except in so far as the said provisions are inconsistent
with the provisions of the Insurance Act, 1938 or the Insurance Regulatory
and Development Authority Act, 1999;
(c) banking companies, except in so far as the said provisions are inconsistent
with the provisions of the Banking Regulation Act, 1949;
(d) companies engaged in the generation or supply of electricity, except in so
far as the said provisions are inconsistent with the provisions of the
Electricity Act, 2003;
(e) any other company governed by any special Act for the time being in force,
except in so far as the said provisions are inconsistent with the provisions of
such special Act, and
(f) such body corporate, incorporated by any Act for the time being in force, as
the Central Government may, by notification, specify in this behalf, subject
to such exceptions, modifications or adaptation, as may be specified in the
notification.
Example 2: Food Corporation of India (FCI), National Highway Authority of India
(NHAI) etc.

Note: The term “except in so far as” shall mean excluding to the extent of i.e. if
any provision of the Companies Act is inconsistent with any of the provisions of
other Act (Insurance Act, Banking Regulation Act, Electricity Act, etc.) to which the
company is regulated than that company shall comply with the provisions of
respective Act/Acts to which it is governed and regulated by.
Companies Whole of India Section 1 1. Companies
Application
Title
Commencement
Extent
Act, 2013 came into 2. Insurance
force at once companies
and the
remaining 3. Banking
provisions on companies
different dates 4. Companies
through producing /
Notifications. supplying
electricity
5. Company
regulated by
special Act
6. Entities as
notified by
Central
Government
3. DEFINITIONS
Section 2 of the Companies Act, 2013 is a definition section. It provides various
terminologies used in the Act. Definitional Sections or Clauses, are known as
‘internal aids to construction’ and can be of immense help in interpreting or
construing the enactment or any of its parts.
Also, according to clause 95 of section 2, words and expressions used and not
defined in this Act but defined in the Securities Contracts (Regulation) Act, 1956
or the Securities and Exchange Board of India Act, 1992 or the Depositories Act,
1996 shall have the meanings respectively assigned to them in those Acts.
When a word or phrase is defined as having a particular meaning in the
enactment, it is that meaning alone which must be given to it while interpreting a

PRELIMINARY 1.5 a
Section of the Act unless there be anything repugnant in the context.

Section 21 states that- In this Act, unless the context otherwise requires, —
(1) Abridged prospectus means a memorandum containing
such salient features of a prospectus as may be
specified by the Securities and Exchange Board by making
regulations in this behalf;
(2) Accounting standards means the standards of accounting or any
addendum thereto for companies or class of companies referred to in
section 133;
Section 133 of the Act deals with the Central Government to Prescribe
Accounting Standards. As per the section, the Central Government may
prescribe the standards of accounting or any addendum thereto, as
recommended by the Institute of Chartered Accountants of India,
constituted under section 3 of the Chartered Accountants Act, 1949, in
consultation with and after examination of the recommendations made by
the National Financial Reporting Authority.
Section 133 is to be read with Rule 7 of the Companies (Accounts) Rules,
2014. Accordingly,
(i) The standards of accounting as specified under the Companies Act,
1956 shall be deemed to be the accounting standards until accounting
standards are specified by the Central Government under section 133.
(ii) Till the National Financial Reporting Authority* is constituted under
section 132 of the Act, the Central Government may prescribe the
standards of accounting or any addendum thereto, as recommended
by the Institute of Chartered Accountants of India in consultation with
and after examination of the recommendations made by the National
Advisory Committee on Accounting Standards constituted under
section 210A of the Companies Act, 1956.
Further, in exercise of the powers conferred by section 133, the Central

Government in consultation with the National Advisory Committee on
Accounting Standards prescribed that Companies (Accounting Standards)
1
The number given in brackets i.e. ( ) at the start of definition, denotes the clauses to section 2.

Rules, 2006 and the Companies (Indian Accounting Standards) Rules, 2015
may be followed.
*The Central Government hereby appoints the 1 st October 2018 as the date
of constitution of National Financial Reporting Authority.
(3) Alter or Alteration includes the making of additions, omissions and
substitutions;
(5) Articles means-
 the articles of association of a company as originally framed, or
 as altered from time to time, or
 applied in pursuance of any previous company law, or
 applied in pursuance of this Act;

(6) Associate company, in relation to another company, means a company in
which that other company has a significant influence, but which is not a
subsidiary company of the company having such influence and includes a
joint venture company.
Explanation. — For the purpose of this clause, —
(a) the expression "significant influence" means control of at least
twenty per cent. of total voting power, or control of or participation
in business decisions under an agreement;
(b) the expression "joint venture" means a joint arrangement whereby the
parties that have joint control of the arrangement have rights to the
net assets of the arrangement;
Vide Circular dated 25/06/2014 it has been clarified that the shares held by a
company in another company in a fiduciary capacity (a fiduciary is a person who
holds a legal or ethical relationship of trust with one of more parties (persons or
group of persons. Typically, a fiduciary prudently takes care of money or other
assets for another person) shall not be counted for the purpose of determining
the relationship of associate company.

PRELIMINARY 1.7 a
Note: Students may please note that the definition of Associate company as
defined under AS 23/ Ind AS 28 (Accounting for Investments in Associates in
Consolidated Financial Statements/ Investment in Associates and Joint Ventures)
is slightly different from the above definition as given in the Companies Act, 2013 .
(7) Auditing standards means the standards of auditing or any addendum

thereto for companies or class of companies referred to in sub-section (10)
of section 143.
Section 143 of the Companies Act, 2013 deals with the Powers and

Duties of Auditors and Auditing Standards. Sub-section (10) to section

143 provides that the Central Government may prescribe the standards of
auditing or any addendum thereto, as recommended by the Institute of
Chartered Accountants of India, constituted under section 3 of the
Chartered Accountants Act, 1949, in consultation with and after examination
of the recommendations made by the National Financial Reporting
Authority:
Provided that until any auditing standards are notified, any standard or
standards of auditing specified by the Institute of Chartered Accountants of
India shall be deemed to be the auditing standards.
(8) Authorised capital or Nominal capital means such capital as is authorised
by the memorandum of a company to be the maximum amount of share
capital of the company;
(10) Board of Directors or Board, in relation to a company, means the
collective body of the directors of the company;
(11) Body corporate or Corporation includes a company incorporated outside
India, but does not include—
(i) a co-operative society registered under any law relating to co-

operative societies; and
(ii) any other body corporate (not being a company as defined in this
Act), which the Central Government may, by notification, specify in this
behalf;

Just for information of the students

(12) Book and Paper and Book or Paper include books of account, deeds,
vouchers, writings, documents, minutes and registers maintained on paper
or in electronic form;
(13) “Books of account ” includes records maintained in
respect of—
(i) all sums of money received and expended by a
company and matters in relation to which the
receipts and expenditure take place;
(ii) all sales and purchases of goods and services by the company;
(iii) the assets and liabilities of the company; and
(iv) the items of cost as may be prescribed under section 148 2 in the case
of a company which belongs to any class of companies specified
under that section;
Books of Account
In case of
companies specified Other Companies
under section 148
Items cost
(i) receipts and (ii) Sales and (iii) Assets and
specified u/s 148
expenditure Purchase Liabilties
and (i), (ii), (iii)
(14) Branch office , in relation to a company, means any establishment

described as such by the company;
(15) Called-up capital means such part of the capital, which has been called for
payment;
2
Section 148 of the Companies Act, 2013 authorises Central Government to Specify Audit
of Items of Cost in Respect of Certain Companies.

PRELIMINARY 1.9 a
(16) Charge means an interest or lien created on the property or assets of a

company or any of its undertakings or both as security and includes a
mortgage;
(17) Chartered Accountant means a chartered accountant as defined in clause
(b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949
who holds a valid certificate of practice under sub-section (1) of section 6 of
that Act;
(18) Chief Executive Officer (CEO) means an officer of a company, who has
been designated as such by it;
(19) Chief Financial Officer (CFO) means a person appointed as the Chief
Financial Officer of a company;
These definitions of CEO & CFO should be read with section 2(51) and 203
which deals with the definition and appointment of Key Managerial
Personnel (KMP) of the Companies Act, 2013.
(20) Company means a company incorporated under this Act or under any
previous company law;
Example 3: Reliance Industries Limited incorporated in year 1973, Tata Steel
Limited incorporated in year 1907, Infosys Limited incorporated in year
1981. Such companies are incorporated under Companies Act, 1956
(previous company law) are also included in the above definition for being
treated as a Company.
(21) Company limited by guarantee means a company having the liability of
its members limited by the memorandum to such amount as the members
may respectively undertake to contribute to the assets of the company in
the event of its being wound up;
(22) Company limited by shares means a company having the liability of its
members limited by the memorandum to the amount, if any, unpaid on the
shares respectively held by them;
Example 4: A shareholder who has paid rupees 75 on a share of face value
rupees 100 can be called upon to pay the balance of rupees 25 only.
(26)) Contributory means a person liable to contribute towards the assets of the
company in the event of its being wound up

Explanation: For the purpose of this clause, it is hereby clarified that a

person holding fully paid-up shares in a company shall be considered as a
contributory.
(27) Control shall include the right to appoint majority of the directors or to
control the management or policy decisions exercisable by a person or
persons acting individually or in concert, directly or indirectly, including by
virtue of their shareholding or management rights or shareholders
agreements or voting agreements or in any other manner;
It is an inclusive definition and relevant for the provisions relating to
subsidiary and holding companies.
(30) Debenture includes debenture stock, bonds or any other instrument of a
company evidencing a debt, whether constituting a charge on the assets of
the company or not;
Provided that—
(a) the instruments referred to in Chapter III-D of the Reserve Bank of
India Act, 1934; and
(b) such other instrument, as may be prescribed by the Central
Government in consultation with the Reserve Bank of India, issued by
a company,
shall not be treated as debenture;

(34) Director means a director appointed to the Board of a company;
(35)) Dividend includes any interim dividend;
(36) Document includes summons, notice, requisition, order, declaration, form

and register, whether issued, sent or kept in pursuance of this Act or under
any other law for the time being in force or otherwise, maintained on paper
or in electronic form;
(37) Employees’ stock option means the option given to the directors, officers
or employees of a company or of its holding company or subsidiary
company or companies, if any, which gives such directors, officers or
employees, the benefit or right to purchase, or to subscribe for, the shares
of the company at a future date at a pre-determined price;

PRELIMINARY 1.11 a
(38) Expert includes an engineer, a valuer, a Chartered Accountant, a Company

Secretary, a Cost Accountant and any other person who has the power or
authority to issue a certificate in pursuance of any law for the time being in
force;
(40) Financial statement in relation to a company, includes—
(i) a balance sheet as at the end of the financial year;

(ii) a profit and loss account, or in the case of a company carrying on
any activity not for profit, an income and expenditure account for the
financial year;
(iii) cash flow statement for the financial year;
(iv) a statement of changes in equity, if applicable; and
(v) any explanatory note annexed to, or forming part of, any document
referred to in sub-clause (i) to sub-clause (iv):
Provided that the financial statement, with respect to One Person Company,
small company and dormant company, may not include the cash flow
statement;
Exemptions
For private companies, the proviso to section 2(40) shall be read as follows:
“Provided that the financial statement, with respect to one person company,
small company, dormant company and private company (if such private
company is a start-up) may not include the cash flow statement;
Explanation. - For the purposes of this Act, the term “start-up” or “start-up
company” means a private company incorporated under the Companies Act,
2013 or the Companies Act, 1956 and recognised as start-up in accordance
with the notification issued by the Department of Industrial Policy and
Promotion, Ministry of Commerce and Industry.”
The exceptions, modifications and adaptations shall be applicable to a private
company which has not committed a default in filing its financial statements
under section 137 of the said Act or annual return under section 92 of the
said Act with the Registrar.

Note: Students may note that ‘Profit and Loss Account’ may also be
referred as ‘Statement of Profit and Loss’ under the Act at some places.
(41) Financial year, in relation to any company or body corporate, means the
period ending on the 31st day of March every year, and where it has been
incorporated on or after the 1st day of January of a year, the period ending
on the 31st day of March of the following year, in respect whereof financial
statement of the company or body corporate is made up: 3
Provided that where a company or body corporate, which is a holding
company or a subsidiary or associate company of a company incorporated
outside India and is required to follow a different financial year for
consolidation of its accounts outside India, the Central Government may, on
an application made by that company or body corporate in such form and
manner as may be prescribed, allow any period as its financial year, whether
or not that period is a year.4
Note: The term “company incorporated outside India” refers to Foreign

Company incorporated under any applicable laws for the constitution of
company outside India.
(43) Free reserves means such reserves which, as per the latest audited balance
sheet of a company, are available for distribution as dividend:
Provided that—
(i) any amount representing unrealised gains, notional gains or
revaluation of assets, whether shown as a reserve or otherwise, or
3
With respect to specified IFSC public company & specified IFSC Private company, a proviso
has been inserted vide notification dated 5th January, 2017 stating that above stated company
which is subsidiary of a foreign company, the financial year of the subsidiary may be same as
the financial year of its holding company & approval of Tribunal shall not be required.
4
Provided also that any application pending before the Tribunal as on the date of
commencement of the Companies (Amendment) Ordinance, 2019, shall be disposed of by
the Tribunal in accordance with the provisions applicable to it before such
commencement.
Provided also that a company or body corporate, existing on the commencement of this
Act, shall, within a period of two years from such commencement, align its financial year
as per the provisions of this clause. (this provision is not relevant now, however, it is still
forming part of the Act)

PRELIMINARY 1.13 a
(ii) any change in carrying amount of an asset or of a liability recognized

in equity, including surplus in profit and loss account on measurement
of the asset or the liability at fair value,
shall not be treated as free reserves;
(44) Global Depository Receipt means any instrument in the form of a
depository receipt, by whatever name called, created by a foreign
depository outside India and authorised by a company making an issue of
such depository receipts.
(45) Government company means any company in which not less than 51% of
the paid-up share capital is held by the Central Government, or by any State
Government or Governments, or partly by the Central Government and
partly by one or more State Governments, and includes a company which is
a subsidiary company of such a Government company;
5
Explanation. - For the purposes of this clause, the "paid-up share capital"
shall be construed as "total voting power", where shares with differential
voting rights have been issued.
Example 5: X Industries Ltd. is a company in which 25% of shareholding is
held by Central Government; 10% shareholding is held by Government of
Maharashtra and 15% shareholding is held by Central Government and
Government of Rajasthan. Here, X Industries Ltd. is not a government
company as there is no compliance of minimum holding of paid-up share
capital i.e. at least 51 % by the Central Government, or by any State
Government or Governments or partly by the Central Government and
partly by one or more State Government.
(46) Holding company in relation to one or more other companies, means a
company of which such companies are subsidiary companies
Explanation. — For the purposes of this clause, the expression "company"

includes any body corporate.
For meaning of “subsidiary company” refer the definition given in section
2(87) of the Companies Act, 2013.
5
Inserted by Exemptions to Government Companies under section 462 of the CA 2013,
notification dated 02.03.2020 (Effective From 03rd March 2020)

(50) Issued capital means such capital as the company issues from time to time
for subscription;
(51) Key Managerial Personnel, in relation to a company, means—
(i) the Chief Executive Officer or the managing director

or the manager;
(ii) the company secretary;
(iii) the whole-time director;
(iv) the Chief Financial Officer;

(v) such other officer, not more than one level below the directors who is
in whole-time employment, designated as key managerial personnel
by the Board; and
(vi) such other officer as may be prescribed;
Note: However, till now no other officer has been prescribed.
CEO/ MD/ Manager
CS
WTD
KMP
Such other officer- not one below directors+ in whole time

employment+ designated as KMP
Other prescribed officer
(52) Listed company means a company which has any of its securities listed on
any recognised stock exchange;
Provided that such class of companies, which have listed or intend to list
such class of securities, as may be prescribed in consultation with the
Securities and Exchange Board, shall not be considered as listed companies.

PRELIMINARY 1.15 a
According to rule 2A of the Companies (Specification of definitions details)

Rules, 20146, the following classes of companies shall not be considered as
listed companies, namely:-
(a) Public companies which have not listed their equity shares on a
recognized stock exchange but have listed their –
(i) non-convertible debt securities issued on private placement
basis in terms of SEBI (Issue and Listing of Debt Securities)
Regulations, 2008; or
(ii) non-convertible redeemable preference shares issued on private
placement basis in terms of SEBI (Issue and Listing of Non-
Convertible Redeemable Preference Shares) Regulations, 2013;
or
(iii) both categories of (i) and (ii) above.

(b) Private companies which have listed their non-convertible debt
securities on private placement basis on a recognized stock exchange
in terms of SEBI (Issue and Listing of Debt Securities) Regulations,
2008;
(c) Public companies which have not listed their equity shares on a
recognized stock exchange but whose equity shares are listed on a
stock exchange in a jurisdiction as specified in sub-section (3) of
section 23 of the Act.
(53) Manager means an individual who, subject to the superintendence, control
and direction of the Board of Directors, has the management of the whole,
or substantially the whole, of the affairs of a company, and includes a
director or any other person occupying the position of a manager, by
whatever name called, whether under a contract of service or not;
(54) Managing Director means a director who, by virtue of the articles of a
company or an agreement with the company or a resolution passed in its
general meeting, or by its Board of Directors, is entrusted with substantial
powers of management of the affairs of the company and includes a
6
As amended by the Companies (Specification of definitions details) Second Amendment
Rules, 2021

director occupying the position of managing director, by whatever name

called.
Explanation.— For the purposes of this clause, the power to do
administrative acts of a routine nature when so authorised by the Board
such as:
• the power to affix the common seal of the company to any document
or
• to draw and endorse any cheque on the account of the company in
any bank or
• to draw and endorse any negotiable instrument or

• to sign any certificate of share or to direct registration of transfer of
any share,
shall not be deemed to be included within the substantial powers of
management;
Explanation.- For any individual to be called as managing director, an
individual shall first be a director duly appointed by the Company under the
provisions of the Companies Act, 2013. This also implies that an individual
who is not a director in the company cannot be appointed as Managing
Director of that company.
(55) Member, in relation to a company, means—
(i) the subscriber to the memorandum of the company who shall be

deemed to have agreed to become member of the company, and on
its registration, shall be entered as member in its register of members;
(ii) every other person who agrees in writing to become a member of
the company and whose name is entered in the register of members
of the company;
(iii) every person holding shares of the company and whose name is
entered as a beneficial owner in the records of a depository;
(56) Memorandum means the memorandum of association of a company as
originally framed or as altered from time to time in pursuance of any
previous company law or of this Act;

PRELIMINARY 1.17 a
(57) Net worth means the aggregate value of the paid-up share capital and all
reserves created out of the profits, securities premium account and debit or
credit balance of profit and loss account, after deducting the aggregate
value of the accumulated losses, deferred expenditure and miscellaneous
expenditure not written off, as per the audited balance sheet, but does not
include reserves created out of revaluation of assets, write-back of
depreciation and amalgamation;
Example 6: The statutory auditors of a company were required to issue a
certificate on the net worth of the company as per the requirement of the
management as on 30 th September 2020 computed as per the provision of
section 2(57) of the Companies Act, 2013.
The company had fair valued its property, plant and equipment in the current
year which was mistakenly taken into retained earnings of the company in its
books of accounts. Advise whether this fair valuation would be covered in the net
worth of the company as per the legal requirements.
Note: As per sec 2(57) of the Companies Act 2013, any reserves created out of
revaluation of assets doesn’t form part of net worth. The company fair valued its
property, plant and equipment and took that to retained earnings.
Even if the company has taken the fair valuation to the retained earnings in its
books of accounts, the resultant credit in reserves (by whatever name called)
would be in the category of ‘reserves created out of revaluation of assets’ which is
specifically excluded in the definition of ‘net worth’ in section 2 (57) and hence
should be excluded by the company.
Further the auditors should also consider the matter related to accounting of this
reserve separately at the time of audit of books of accounts of the company.
(58)) Notification means a notification published in the Official Gazette and the
expression “notify” shall be construed accordingly;
(59) Officer includes any director, manager or key managerial personnel or any
person in accordance with whose directions or instructions the Board of
Directors or any one or more of the directors is or are accustomed to act;
(60) Officer who is in default , for the purpose of any provision in this Act which
enacts that an officer of the company who is in default shall be liable to any

penalty or punishment by way of imprisonment, fine or otherwise, means

any of the following officers of a company, namely:—
(i) whole-time director (WTD);
(ii) key managerial personnel (KMP);
(iii) where there is no key managerial personnel, such director or directors
as specified by the Board in this behalf and who has or have given his
or their consent in writing to the Board to such specification, or all the
directors, if no director is so specified;
(iv) any person who, under the immediate authority of the Board or any
key managerial personnel, is charged with any responsibility including
maintenance, filing or distribution of accounts or records, authorises,
actively participates in, knowingly permits, or knowingly fails to take
active steps to prevent, any default;
(v) any person in accordance with whose advice, directions or instructions
the Board of Directors of the company is accustomed to act, other
than a person who gives advice to the Board in a professional
capacity;
(vi) every director, in respect of a contravention of any of the provisions of
this Act, who is aware of such contravention by virtue of the receipt by
him of any proceedings of the Board or participation in such
proceedings without objecting to the same, or where such
contravention had taken place with his consent or connivance;
(vii) in respect of the issue or transfer of any shares of a company, the
share transfer agents, registrars and merchant bankers to the issue or
transfer;
Example 7: In a company, a default was committed with respect to the
allotment of shares by the officers. In company there were no managing
director, whole time director, a manager, secretary, a person charged by the
Board with the responsibility of complying with the provisions of the Act,
and neither any director/directors specified by the board. Therefore, in such
situation, all the directors of the company may be treated as officers in
default.

PRELIMINARY 1.19 a
(62) One Person Company means a company which has only one person as a
member;
(63) Ordinary or special resolution means an ordinary resolution, or as the
case may be, special resolution referred to in section 114 (Ordinary and
Special Resolution);
(64) Paid-up share capital or share capital paid-up means such aggregate
amount of money credited as paid-up as is equivalent to the amount
received as paid-up in respect of shares issued and also includes any
amount credited as paid-up in respect of shares of the company, but does
not include any other amount received in respect of such shares, by
whatever name called;
(65) Postal ballot means voting by post or through any electronic mode;
This definition is related to section 110 to be read with Rule 22 of the

Companies (Management and Administration) Rules, 2014 specifying the
procedure to be followed for conducting of business through postal ballot
and provides the list of items of business which should be transacted only
by means of voting through a postal ballot.
(66)) Prescribed means prescribed by rules made under this Act;
(68) Private company means a company having a minimum paid-up share

capital as may be prescribed 7, and which by its articles,—
(i) restricts the right to transfer its shares;
(ii) except in case of One Person Company, limits the number of its
members to two hundred:
Provided that where two or more persons hold one or more shares in
a company jointly, they shall, for the purposes of this clause, be
treated as a single member:
Provided further that—
(A) persons who are in the employment of the company; and
7
Since nothing has been prescribed so far, thus, there is no minimum paid up share capital to
form a private company.

(B) persons who, having been formerly in the employment of the

company, were members of the company while in that
employment and have continued to be members after the
employment ceased,
shall not be included in the number of members; and
(iii) prohibits any invitation to the public to subscribe for any securities of
the company;
The requirement of having a minimum paid up share capital shall not apply
to a section 8 company (Formation of companies with charitable objects,
etc.) vide notification dated 5th June 2015.
The above-mentioned exemption shall be applicable to a section 8 company
which has not committed a default in filing its financial statements under
section 137 of the Companies Act, 2013, or annual return under section 92
of the said Act with Registrar. [Vide amendment notification G.S.R. 584(E)
dated 13th June 2017.]
(69) Promoter means a person—
(a) who has been named as such in a prospectus or is identified by the

company in the annual return referred to in section 92, or
(b) who has control over the affairs of the company, directly or
indirectly whether as a shareholder, director or otherwise; or
(c) in accordance with whose advice, directions or instructions the
Board of Directors of the company is accustomed to act:
Provided that nothing in sub-clause (c) shall apply to a person who is
acting merely in a professional capacity;
(70) Prospectus means any document described or issued as a prospectus and
includes a red herring prospectus or shelf prospectus or any notice, circular,
advertisement or other document inviting offers from the public for the
subscription or purchase of any securities of a body corporate;
(71) Public company means a company which—
(a) is not a private company; and

PRELIMINARY 1.21 a
(b) has a minimum paid-up share capital as may be prescribed 8:

Provided that a company which is a subsidiary of a company, not being a
private company, shall be deemed to be public company for the purposes of
this Act even where such subsidiary company continues to be a private
company in its articles;
Example 8: A Pvt. Ltd. is wholly owned subsidiary of AB Ltd., a public
company incorporated under the Companies Act, 2013. A Pvt. Ltd. wanted
to avail exemptions as provided to private companies. In this case, since A
Pvt. Ltd. is subsidiary of AB Ltd., which is a public company, therefore A Pvt.
Ltd. will be deemed to be a public company and will be not allowed to avail
exemptions provided to a private company.
The requirement of having a minimum paid up share capital shall not apply
to a section 8 company vide notification dated 5th June 2015.
(74) Register of companies means the register of companies

maintained by the Registrar on paper or in any electronic mode
under this Act;
(75) Registrar means a Registrar, an Additional Registrar, a Joint Registrar, a
Deputy Registrar or an Assistant Registrar, having the duty of registering
companies and discharging various functions under this Act;
(76) Related party , with reference to a company, means—
(i) a director or his relative;
(ii) a key managerial personnel or his relative;

(iii) a firm, in which a director, manager or his relative is a partner;
(iv) a private company in which a director or manager or his relative is a
member or director;
(v) a public company in which a director or manager is a director and
holds along with his relatives, more than two per cent of its paid-up
share capital;
8
Since nothing has been prescribed so far, thus, there is no minimum paid up share capital to
form a public company.

(vi) any body corporate whose Board of Directors, managing director or

manager is accustomed to act in accordance with the advice,
directions or instructions of a director or manager;
(vii) any person on whose advice, directions or instructions a director or
manager is accustomed to act:
Provided that nothing in sub-clauses (vi) and (vii) shall apply to the
advice, directions or instructions given in a professional capacity;
9
(viii) any body corporate which is-
(A) a holding, subsidiary or an associate company of such company;
(B) a subsidiary of a holding company to which it is also a

subsidiary; or
(C) an investing company or the venturer of the company;
Explanation.- For the purpose of this clause, “the investing company
or the venturer of a company” means a body corporate whose
investment in the company would result in the company becoming an
associate company of the body corporate.
Exemption - This Clause (viii) shall not apply with respect to section 188
(Related Party transactions) to a private company vide Notification No.
G.S.R. 464(E) dated 5th June, 2015.
(ix) such other person as may be prescribed;

As per Rule 3 given in the Companies (Specification of Definitions
Details) Rules, 2014, for the purposes of sub-clause (ix) of clause (76)
of section 2 of the Act, a director (other than an independent director)
or key managerial personnel of the holding company or his relative
with reference to a company, shall be deemed to be a related party.
Example 9: XYZ Pvt. Ltd. has two subsidiary companies, Y Pvt. Ltd. and
Z Pvt. Ltd. Here as per the section 2(76)(viii)(B), Y Pvt. Ltd and Z Pvt.
Ltd. are related parties. However, as per the Notification No. G.S.R.
464(E) dated 5th June, 2015, clause (viii) shall not apply with respect to
9
The above clause (viii) shall not apply with respect to section 188 to a Specified IFSC Public
company vide Notification no. G. S.R. 08(E) dated 4th January, 2017

PRELIMINARY 1.23 a
section 188 to a private company. Therefore Y Pvt. Ltd and Z Pvt. Ltd
are not related parties for the purpose of section 188. However, if Y
Pvt. Ltd and Z Pvt. Ltd. have common directors, then they will be
deemed to be related parties because of section 2(76)(iv).
Example 10: Now suppose, XYZ Ltd. a public company, has two
subsidiary companies, Y Pvt. Ltd and Z Pvt. Ltd. Here as per section
2(71), a private company which is a subsidiary of a public company will
be deemed to be a public company, so Y Pvt. Ltd and Z Pvt. Ltd will
not be eligible to avail exemption under the Notification No. G.S.R.
464(E) dated 5th June, 2015. Therefore, as per section 2(76)(viii)(B), Y
Pvt. Ltd and Z Pvt. Ltd are related parties. In addition, XYZ Ltd. will also
be related Party to Y Pvt. Ltd and Z Pvt. Ltd.
(77) Relative, with reference to any person, means anyone who is related to
another, if—
(i) they are members of a Hindu Undivided Family;
(ii) they are husband and wife; or
(iii) one person is related to the other in such manner as may be
prescribed;
Rule 4 given in the Companies (Specification of Definitions Details) Rules,
2014 provides of the List of Relatives in terms of Clause (77) of section 2.
Accordingly, a person shall be deemed to be the relative of another, if he or
she is related to another in the following manner, namely:-
(1) Father: Provided that the term “Father” includes step-father.
(2) Mother: Provided that the term “Mother” includes the step-mother.
(3) Son: Provided that the term “Son” includes the step-son.
(4) Son’s wife.
(5) Daughter.
(6) Daughter’s husband.

(7) Brother: Provided that the term “Brother” includes the step-brother;
(8) Sister: Provided that the term “Sister” includes the step-sister.

(78)) Remuneration means any money or its equivalent given or passed to any
person for services rendered by him and includes perquisites as defined
under the Income Tax Act, 1961
(84) Share means a share in the share capital of a company and includes stock;
(85) Small company means a company, other than a public company,—
(i) paid-up share capital of which does not exceed fifty lakh rupees or
such higher amount as may be prescribed which shall not be more
than ten crore rupees; and
(ii) turnover of which as per profit and loss account for the immediately
preceding financial year does not exceed two crore rupees or such
higher amount as may be prescribed which shall not be more than
one hundred crore rupees:
Provided that nothing in this clause shall apply to—
(A) a holding company or a subsidiary company;
(B) a company registered under section 8; or

(C) a company or body corporate governed by any special Act.
As per the Companies (Specification of Definitions Details) Rules, 2014 10, for
the purposes of sub-clause (i) and sub-clause (ii) of clause (85) of section 2
of the Act, paid up capital and turnover of the small company shall not
exceed rupees four crore and rupees forty crore respectively.
Capital- ` 4 crores
Turnover- ` 40 crores
10
As amended by the Companies (Specification of definition details) Amendment Rules, 2022.

PRELIMINARY 1.25 a
Example 11: H Ltd. is the holding company of S Pvt. Ltd. As per the last
profit and loss account for the year ending 31 st March, 2023 of S Pvt. Ltd., its
turnover was to the extent of ` 1.50 crores; and paid up share capital was
` 40 lacs. Since S Pvt. Ltd., as per the turnover and paid up share capital
norms, qualifies for the status of a ‘small company’ it wants to be
categorized as ‘small company’. S Pvt. Ltd. cannot be categorized as a ‘small
company’ because it is the subsidiary of another company (H Ltd.). [Proviso
to section 2(85)].
(86) Subscribed capital means such part of the capital which is for the time
being subscribed by the members of a company;
Example 12: ABC Ltd. was registered with Registrar with an Authorised
capital of ` 2,00,00,000 where each share is of ` 10.
In response to the advertisements made by the company to buy shares in
the company, applications have been received for 10,00,000 shares but
company actually issued 700,000 shares where company has called for ` 8
per share.
All the calls have been met in full except three shareholders who still owe
for their 6000 shares in total.
Amount of various share capital

Authorized share capital = ` 2,00,00,000 (2 crores)
Subscribed capital = 10,00,000 x 10 = ` 1,00,00,000 (1 Crore)
Issued capital = 7,00,000 x 10 = ` 70,00,000

Called-up capital = 7,00,000 x 8 = ` 56,00,000
Paid-up capital = 56,00,000 – (6000 x ` 8) = ` 55,52,000
(87) Subsidiary company or Subsidiary, in relation to any other company (that
is to say the holding company), means a company in which the holding
company—
(i) controls the composition of the Board of Directors; or
(ii) exercises or controls more than one-half of the total voting power
either at its own or together with one or more of its subsidiary
companies:

Provided that such class or classes of holding companies as may be

prescribed shall not have layers of subsidiaries beyond such numbers as
may be prescribed.
Explanation—For the purposes of this clause,—
(a) a company shall be deemed to be a subsidiary company of the
holding company even if the control referred to in sub-clause (i) or
sub-clause (ii) is of another subsidiary company of the holding
company;
(b) the composition of a company’s Board of Directors shall be deemed to
be controlled by another company if that other company by exercise
of some power exercisable by it at its discretion can appoint or
remove all or a majority of the directors;
(c) the expression “company” includes any body corporate;

(d) “layer” in relation to a holding company means its subsidiary or
subsidiaries;
As per the notification dated 27 th December 2013, Ministry clarified that the
shares held by a company or power exercisable by it in another company in
a fiduciary capacity shall not be counted for the purpose of determining the
holding –subsidiary relationship in terms of the provision of section 2(87) of
the Companies Act, 2013.
(88) Sweat equity shares means such equity shares as are issued by a company
to its directors or employees at a discount or for consideration, other than
cash, for providing their know-how or making available rights in the nature
of intellectual property rights or value additions, by whatever name called;
(89) Total voting power , in relation to any matter, means the
total number of votes which may be cast in regard to that
matter on a poll at a meeting of a company if all the
members thereof or their proxies having a right to vote on
that matter are present at the meeting and cast their votes;
(90) Tribunal means the National Company Law Tribunal constituted under
section 408;

PRELIMINARY 1.27 a
(91) Turnover means the gross amount of revenue recognised in the profit and
loss account from the sale, supply, or distribution of goods or on account of
services rendered, or both, by a company during a financial year;
(92) Unlimited company means a company not having any limit on the liability
of its members;
(93) Voting right means the right of a member of a company to
vote in any meeting of the company or by means of postal
ballot.
TEST YOUR KNOWLEDGE

MCQ based Questions
1. Green Ltd. is incorporated on 3 rd January, 2022. As per the Companies Act,
2013, what will be the financial year for the company:
(a) 31st March, 2022
(b) 31st December, 2022
(c) 31st March, 2023

(d) 30th September, 2023
2. Roma along with her six friends has incorporated Roma Trading Ltd. in May
2021. The paid-up share capital of the company is ` 2 crore. Further, in April
2022, she noticed that in the last financial year, the turnover of the company
was well below ` 40 crore. Advise whether the company can be treated as a
‘small company’.
(a) Roma Trading Ltd. is definitely a ‘small company’ since its paid-up
capital is much below ` 4 crore and also its turnover has not exceeded
the threshold limit of ` 40 crore.
(b) The concept of ‘small company’ is applicable only in case of a private
limited company/OPC and therefore, despite meeting the criteria of
‘small company’ it being a public limited company it cannot enjoy
benefits of ‘small company’.

(c) Unlike a private limited company/OPC which automatically becomes a

‘small company’ as soon as it meets the criteria of ‘small company’,
Roma Trading Ltd. being a public limited company has to maintain the
norms applicable to a ‘small company’ continuously for two years so
that, thereafter, it will be treated as a ‘small company’.
(d) If all the shareholders of Roma Trading Ltd. give an undertaking to the
ROC stating that they will not let the paid-up share capital and also
turnover exceed the limits applicable to a ‘small company’ in the next
two years, then it can be treated as a ‘small company’.
3. Abhilasha and Amrita have incorporated a ‘not for profit’ private limited
company which is registered under Section 8 of the Companies Act, 2013. One
of their friends has informed them that their company can be categorized as a
‘small company’ because as per the last profit and loss account for the year
ending 31 st March, 2022, its turnover was less than ` 40 crore and its paid up
share capital was less than ` 4 crore. Advise.
(a) A section 8 company, which meets the criteria of ‘turnover’ and ‘paid -up
share capital’ in the last financial year, can avail the status of ‘small
company’ only if it acquires at least 5% stake in another ‘small
company’ within the immediately following financial year.
(b) If the acquisition of minimum 5% stake in another ‘small company’
materializes in the second financial year (and not in the immediately
following financial year) after meeting the criteria of ‘turnover’ and
‘paid-up share capital’ then with the written permission of concerned
ROC, it can acquire the status of ‘small company’.
(c) The status of ‘small company’ cannot be bestowed upon a ‘not for profit’
company which is registered under Section 8 of the Companies Act,
2013.
(d) A section 8 company, if incorporated as a private limited company (and

not as public limited company) can avail the status of ‘small company’
with the permission of concerned ROC, after it meets the criteria of
‘turnover’ and ‘paid-up share capital’.
4. Kaveri Goods Carriers Private Limited (KGCPL) issued 9% Non-convertible
Debentures worth ` 10 lakhs and thereafter, the directors contemplated to get

PRELIMINARY 1.29 a
them listed. After due formalities, these privately placed non-convertible

debentures of ` 10 lakhs were listed. Which of the following options is
applicable in the given situation:
(a) KGCPL shall be considered as a listed company.

(b) KGCPL shall not be considered as a listed company.
(c) KGCPL shall be considered as a listed company only when minimum
amount of listed privately placed non-convertible debentures is ` 15
lakhs.
(d) KGCPL shall be considered as a listed company only when minimum
amount of listed privately placed non-convertible debentures is
minimum ` 20 lakhs.
5. “Associate company”, in relation to another company, means a company in
which that other company has a significant influence, but which is not
a subsidiary company of the company having such influence and includes
a joint venture company. Here, the words ‘significant influence’ means:
(a) Control of at least 10% of total voting power
(b) Control of at least 15% of total voting power
(c) Control of at least 20% of total voting power
(d) Control of at least 25% of total voting power
Descriptive Questions
1. MNP Private Ltd. is a company registered under the Companies Act, 2013
with a paid-up share capital of ` 2 crore and turnover of ` 60 crore. Explain
the meaning of the “Small Company” and examine the following in
accordance with the provisions of the Companies Act, 2013:
(i) Whether the MNP Private Ltd. can avail the status of small company?
(ii) What will be your answer if the turnover of the company is ` 30 crore?
2. Flora Fauna Limited was registered as a public company. There are 230
members in the company as noted below:

(a) Directors and their relatives 50
(b) Employees 15
(c) Ex-Employees (Shares were allotted when they were employees) 10
(d) 5 couples holding shares jointly in the name of husband and wife 10
(5*2)
(e) Others 145
The Board of Directors of the company propose to convert it into a private

company. Also advise whether reduction in the number of members is necessary.
ANSWERS
Answer to MCQ based Questions
1. (c) 31st March, 2023
2. (b) The concept of ‘small company’ is applicable only in case of a

private limited company/OPC and therefore, despite meeting
the criteria of ‘small company’ it being a public limited
company cannot enjoy benefits of ‘small company’.
3. (c) The status of ‘small company’ cannot be bestowed upon a ‘not

for profit’ company which is registered under Section 8 of the
4. (b) KGCPL shall not be considered as a listed company.
5. (c) Control of at least 20% of total voting power
Answer to Descriptive Questions

1. Small Company: According to Section 2(85) of the Companies Act, 2013,
Small Company means a company, other than a public company,—
(1) paid-up share capital of which does not exceed fifty lakh rupees or
such higher amount as may be prescribed which shall not be more
than ten crore rupees; and

PRELIMINARY 1.31 a
(2) turnover of which as per its last profit and loss account does not
exceed two crore rupees or such higher amount as may be prescribed
which shall not be more than one hundred crore rupees.
Nothing in this clause shall apply to—
(A) a holding company or a subsidiary company;
(B) a company registered under section 8; or
(C) a company or body corporate governed by any special Act.
As per the Companies (Specification of Definitions Details) Rules, 2014, for
the purposes of sub-clause (i) and sub-clause (ii) of clause (85) of section 2
of the Act, paid up capital and turnover of the small company shall not
exceed rupees four crores and rupees forty crores respectively.
(i) In the present case, MNP Private Ltd., is a company registered under
the Companies Act, 2013 with a paid up share capital of ` 2 crore and
having turnover of ` 60 crore. Since only one criteria of share capital
not exceeding ` 4 crore is met, but the second criteria of turnover not
exceeding ` 40 crore is not met and the provisions require both the
criteria to be met in order to avail the status of a small company, MNP
Ltd. cannot avail the status of small company.
(ii) If the turnover of the company is ` 30 crore, then both the criteria will
be fulfilled and MNP Ltd. can avail the status of small company.
2. According to section 2(68) of the Companies Act, 2013, "Private company"
means a company having a minimum paid-up share capital as may be
prescribed, and which by its articles, except in case of One Person Company,
limits the number of its members to two hundred.
However, where two or more persons hold one or more shares in a

company jointly, they shall, for the purposes of this clause, be treated as a
single member.
It is further provided that -
(A) persons who are in the employment of the company; and
(B) persons who, having been formerly in the employment of the
company, were members of the company while in that employment
and have continued to be members after the employment ceased,

shall not be included in the number of members.

In the instant case, Flora Fauna Limited may be converted* into a private
company only if the total members of the company are limited to 200. Total
Number of members
(i) Directors and their relatives 50
(ii) 5 Couples (5x1) 5
(iii) Others 145
Total 200
Therefore, there is no need for reduction in the number of members since

existing number of members are 200 which does not exceed maximum limit
of 200.
*The provisions relating to conversion of public company to private
company is covered in the Chapter 2 – Incorporation of Company and
Matters incidental thereto.

CHAPTER
2
INCORPORATION OF
COMPANY AND
MATTERS
INCIDENTAL THERETO
LEARNING OUTCOMES
♦ Explain the Formation & Incorporation of company (Private
Limited/ Public Limited), One person company (OPC) and the
formation of Not for Profit Organization (Section 8
Company).
♦ Identify the need for Memorandum of Association (MOA) and
Articles of Association (AOA) and changes incidental thereto.
♦ Know the effect of registration.
♦ Explain and identify the concepts related to registered office
of company.
♦ Understand how documents may be served and filing thereof.
♦ Know about Authentication of documents, proceedings and
contracts and Execution of bills of exchange, etc.

2.2 CORPORATE AND OTHER LAWS
CHAPTER OVERVIEW
This chapter will discuss in detail the provisions contained in Chapter II of the
Companies Act 2013 pertaining to the incorporation of companies and matters
incidental thereto. The scope of this chapter is shown in below figure;
Incorporation of company and related matters
Formation and Memorandum Other

Documents
Incorporation and Articles Provisions
Minimum
Memorandum Registered
members & Service (Sec 20)
(MOA) (Sec 4) Office (Sec 12)
OPC
(Sec 3 & 3A)
Article (AOA) Authentication Commencement

Documents of Business
(Sec 5) (Sec 21)
required (Sec (Sec 10A)
7)
Act to override
Execution Rectify Name
Not for profit MOA/AOA
(Sec 22) (Sec 16)
company (Sec (Sec 6)
8)
Changes in Convert
Effect of Memorandum Company
registration (Sec 13) (Sec 18)
(Sec 9)
Subsidiary
Changes in
Can't hold
Article (Sec 14)
shares in
holding
(Sec 19)
Updation of changes to be
noted in every copy of
MOA/AOA (Sec 15)
Give copy of MOA/AOA to

members (Sec 17)

INCORPORATION OF COMPANY & MATTERS 2.3
INCIDENTAL THERETO
1. INTRODUCTION TO INCORPORATION OF
COMPANIES & PROMOTOR
Chapter II Consists of sections 3 to 22 as well as the Companies
(Incorporation) Rules, 2014.
A company is a separate legal entity from its members. It has perpetual succession
and can be incorporated only for lawful purposes. Prior to incorporation, promotion
activities are essential. Promotion signifies a number of business operations familiar
to the commercial world by which a company is brought into existence 1
Persons who undertake promotion activities in order to incorporate the company

are generally known as promoters. The section 2(69) of Companies Act, 2013 2
(herein after referred to as ‘the Act’) defines the term “Promoter” (already
mentioned in chapter 1 of module; elaborated here). Promoter means a person;
a. Who has been named as promoter in a prospectus; or
b. Who is identified as promoter by the company in the annual return; or
c. Who has control over the affairs of the company, directly or indirectly whether
as a shareholder, director or otherwise; or
d. In accordance with whose advice, directions or instructions the Board of

Directors of the company is accustomed to act, but shall not include a
person who is acting merely in a professional capacity such as attorney,
technical or functional experts.
Students are advised to take note that above definition serves the purpose to make
a person liable ‘in capacity of promoter’ for fraud through misstatement, but not
highlighting what actually promoters do. Hence, considering the judicial
pronouncements improves our understanding regarding role of promoter.
Promoter is one who undertakes to form a company with reference to a given

project, and to set it going, and who takes the necessary steps to accomplish that
1
Whaley Bridge Printing Co. v. Green (1880) 5 B.D. 109
2
Act 18 of 2013

purpose. 3 To be a promoter, one need not necessarily be associated with the initial
formation of the company; one who subsequently helps to arrange floating of its
capital will equally be regarded as a promoter. 4
Hence, “promoter” denotes any individual, association, partnership or a company

that takes all the necessary steps to incorporate (create and mould) 5 a company
and set it going, in a fiduciary position. 6
Illustration (True/False)
Statement – To be a promoter one necessarily be associated with the initial formation

of the company.
Answer - False, one who subsequently helps company to keep going, raise fund &
advice to board (other than in professional capacity) will equally be regarded as a
promoter.
2. FORMATION OF COMPANY [SECTION 3]

Earlier companies were granted rights by royal charter, but now a company may be
incorporated by either a special Act of the legislature or under the Companies Act,
2013. Accordingly, an incorporated company may be either Chartered Company,
Statutory Company, or Registered Company. Section 3 of the Act deals with
registered companies.
FORMS OF COMPANIES
The Companies are broadly classified into categories shown below in figure.
Definitions of many of these are already covered under chapter 1 of this module.
3
Twycross v. Grant (1877) 2 C.P.D. 469
4
Lagunas Nitrate Co. v. Lagunas Syndicate (1899) 2 Ch. 392.
5
Erlanger v New Sombrero Phosphate Co. (1878) 48 LJ Ch. 73
6
ibid

INCIDENTAL THERETO
Kind of Companies
Company
Incorporated Companies Un-incorporated
On the basis of mode of registration
Registered Statutory Chartered

Companies Companies Companies
On the basis of liabilty
Limited by Shares Limited by Guarantee Unlimited
Public Private with capital without capital with capital without capital
Public Private Public Private Public Private Public Private
Sub-section 1 to section 3 provides that for lawful purpose, by subscribing their

name to memorandum and complying with requirement of this Act;
a. A public company may be formed by seven (7) or more persons
b. A private company may be formed by two (2) or more persons
c. A one person company (as private company) may be formed by one (1)
person.
Further, sub-section 2 to section 3 provides that, company formed as specified

above may be incorporated either as;
a. Companies limited by shares; or
b. Companies limited by guarantee; or
c. Unlimited liability companies.

Note: A limited liability companies may be Companies limited by guarantee as well

as shares.
Specified IFSC Public or Specified IFSC Private Company shall be formed only as a
company limited by shares. IFSC Company means a company licensed to set up
businesses in any International Financial Services Center in India, like in Gujarat
International Finance Tec-City.
ONE PERSON COMPANY (OPC)
The Companies Act, 2013 for the first time allowed the formation of company by
just one person with limited liability, called one person company; such a company
is described as a private company under section 3(1)(c). Further section 3(1) along
with rule 3 and 4 of the Companies (Incorporation) Rules, 2014, provides certain
provisions specifically applicable in case of One Person Company listed below;
Who can form one person company?
Only a natural person, other than minor; who is an Indian citizen and whether
resident in India or otherwise shall be eligible to incorporate a One Person
Company.
Resident in India means a person who has stayed in India for a period of not less
than one hundred and twenty days during the immediately preceding financial year.
OPC can’t be incorporated or converted into a company under section 8 of the Act.
Further, OPC can’t carry out Non-Banking Financial Investment activities including
investment in securities of any body-corporates.
Indicate Name & Consent Nominee
The memorandum of One Person Company shall also indicate the name of the
natural person, other than minor; who is an Indian citizen, whether resident in India
or otherwise (as nominee), along with his prior written consent in the Form No.
INC-3, who shall, in the event of the subscriber’s death or his incapacity to contract
become the member of the company.
Note: This provision is to ensure perpetual succession of legal existence of OPC.

Example – Ms. Madhu formed an OPC wherein Mr. Sudan is nominee as his name
is specified in MOA along with his consent. Ms. Madhu declared insolvent, pending

INCIDENTAL THERETO
to discharge insolvency, she becomes incompetent to contract, hence, Mr. Sudan

becomes the member of such OPC.
The name of such nominated person in Form No. INC-32 (SPICe) along with
consent of such nominee obtained in Form No. INC-3 and fee as provided in the
Companies (Registration offices and fees) Rules, 2014 shall be filed with the
Registrar at the time of incorporation of the company along with its memorandum
and articles.
Note: A natural person shall not be member of more than a One Person Company
at any point of time and the said person shall not be a nominee of more than a
One Person Company
Where a natural person, being member in One Person Company in accordance with
this rule becomes a member in another such Company by virtue of his being a
nominee in that One Person Company, such person shall meet the above specified
criteria (can be member of only one OPC) within a period of one hundred and
eighty days.
Withdraw of Consent by Nominee
Such other person (nominee) may withdraw his consent by giving a notice in
writing to such sole member and to the One Person Company
In this case, the sole member shall nominate another person as nominee within
fifteen days of the receipt of the notice of withdrawal and shall send an intimation
of such nomination in writing to the Company, along with the written consent of
such other person so nominated in Form No. INC-3.
Note: Despite name of such other (old nominee) and another person (new
nominee) specified in memorandum, any such change in the name of the person
shall not be deemed to be an alteration of the memorandum.
Replacing Nominee with another one

The member may change the name of the person nominated by him at any time
for any reason including in case of death or incapacity to contract of nominee and
nominate another person (new nominee) after obtaining the prior consent of such
another person in Form No. INC-3.
Member can do so by intimation in writing to the company.

This is not specified, either in Act or rules whether intimation shall be prior to
making change or can be made afterward, but if we consider reasonable
construction the intimation shall be ‘Prior Intimation’.
Any such change in the name of the person shall not be deemed to be an alteration
of the memorandum.
Example - Rajesh has formed a ‘One Person Company (OPC), wherein his wife
Roopali is named as nominee. For the last two years, his wife Roopali is suffering
from terminal illness and due to this hard fact he wants to change her as nominee.
He has a trusted and experienced friend Ramnivas who could be made nominee or
his (Rajesh) son Rakshak who is of seventeen years of age. In the instant case, Rajesh
can appoint his friend Ramnivas as nominee in his OPC and not Rakshak because
Rakshak is a minor.
When Nominee become Member
Where the sole member ceases to be the member and nominee become new
member, then such new member shall nominate within fifteen days of becoming
member, a person (new nominee) who shall in the event of his death or his
incapacity to contract become the member of such company.
Notice of change to Registrar
In all the three case of change discussed above (Withdraw of Consent by Nominee,
Replacing Nominee with another one and When Nominee become Member) the
company within thirty days of receipt of notice of withdrawal of consent by
nominee, intimation of change of nominee from member, or cessation; shall file the
notice with the Registrar of such withdrawal of consent, change or cessation
respectively and intimate the name of such another person (new nominee) in Form
No. INC-4 along with the fee as provided in the Companies (Registration offices
and fees) Rules, 2014 along with the prior written consent of such another person
so nominated in Form No. INC-3.
Note: All the notices and intimations required above shall be in written only,
whether specific form provided or otherwise.
Statement – Even a Non-Resident Indian can form and become member of OPC.
Answer – True, Rule 3(1) of The Companies (Incorporation) Rules, 2014.

INCIDENTAL THERETO
Only a natural person, other than minor; who is an Indian citizen and whether
resident in India or otherwise shall be eligible to incorporate a One Person
Company.
Additional reading
Relaxations available to an OPC include:
♦ Not required to prepare a cash-flow statement with effect of section 2(40).

♦ The annual return to furnished under section 92 can be signed by the Director
and not necessarily a Company Secretary, even abridged annual return may
be prescribed.
♦ Further, following the similar line, section 134 provides it would suffice if one
director signs the audited financial statements and abridged form of director
report may be prescribed.
♦ Holding annual general meeting as required under section 96 is not necessary
in case of OPC. Moreover, certain specific provisions related to general
meetings and extraordinary general meetings, specified under sections 100
to 111 not applicable to OPC.
♦ Even relaxation is also there in convening board meetings section 173
requires an OPC to hold only one meeting of the Board of Directors in each
half of a calendar year.
♦ Vide section 137, the OPC are allowed to file financial statements within six
months from the close of the financial year as against 30 days.
3. MEMBERS SEVERALLY LIABLE IN CERTAIN

CASES i.e. REDUCTION IN MINIMUM
MEMBERSHIP [SECTION 3A]
Member may have limited or unlimited liability depending upon nature of
company. Generally, the members are jointly liable for the debt of company, but
they shall be severally liable for the payment of the debts of the company and may
be severally sued therefore; if at any time:
1. The number of members of a company is reduced below seven (7) and two
(2) in case of a public and private company, respectively; and

2. Such company carries on business for more than six months with reduced
number of members; and
3. Every such person who carries on business after those six months is
cognizant (aware) of the fact that business is carried reduced members
Such members are liable for the payment of the whole debts of the company
contracted during that time (after elapse of six months)
Example – Amar, Akbar, and Anthony along with five of their friends were member
of Harmony Limited. Amar and Akbar died on 18th August 2022, resultantly
members count reduced to 6 and every one aware about it. Harmony limited
continued its operation without increasing members. In March 2023, Company took
loan for business operations, and defaulted in payment thereof. The lender of such
loan can sue company, or Anthony or any of rest of five friends, because members
shall severally liable for said loan in given case.
Statement – Members who knowingly operating the company for more than six months
with less than the minimum number of members specified in Section 3(1) are severally
liable for the payment of all debts contracted by the company during the period since
the number of members was first reduced.
Answer – False, refer section 3A of the Act. Such members are liable severally for the
payment of the whole debts of the company contracted during that time (after elapse
of six months)
4. INCORPORATION OF COMPANY [SECTION 7]

Section 7 of the Act provides for the procedure to be followed for incorporation of
a company. The steps involved in the process of incorporation are enumerated in
Figure shown below (Steps for Incorporation). Majority of steps are covered under
section 7 while some other related to documents such as MOA and AOA governed
by section 4 and 5 respectively. Corresponding procedural aspects are described
by rule 12 to 18 of the Companies (Incorporation) Rules, 2014 and Fees are notified
through rule 12 of the Companies (Registration Offices and Fees) Rules, 2014.

INCIDENTAL THERETO
Steps for Incorporation
1. Determine the 2. Reservation of 3. Drafting and

nature of company name by filing an signing of MOA &
(private or public) apllication AOA
6. Submission of
5. Consent of 4. Submission of
statutory
persons nominated MOA and AOA to
declaration of
as directors ROC
compliances
7. Pay fees & 9. File declaration

8. Obtain certificate
amount of stamp about address of
of incorporation
duty Registered office
Note: Now, it is also required to submit a declaration that all the subscribers have
paid the value of shares agreed to be taken by him apart from filling of verification
of registered office before the commencement of business.
FILING OF THE DOCUMENTS AND INFORMATION WITH THE REGISTRAR

[SUB-SECTION 1]
An application for registration of a company shall be filed, with the Registrar within
whose jurisdiction the registered office of the company is proposed to be situated,
in SPICe+(Simplified Proforma for Incorporating company Electronically Plus: INC-
32) along with the fee as provided under the Companies (Registration offices and
fees) Rules, 2014 accompanied by following documents and information;
SPICe+ is an integrated Web form offering 10 services by 3 Central Govt. Ministries

& Departments. (Ministry of Corporate Affairs, Ministry of Labour & Department of
Revenue in the Ministry of Finance) thereby saving as many procedures, time and
cost for starting a business in India. SPICe+ is initiatives towards Ease of Doing
Business. Students may refer to FAQs on SPICe+ form at MCAs’ website for more
details https://www.mca.gov.in/MinistryV2/spicefaq.html

The duly signed memorandum of association and articles of association
The memorandum (e-MOA in Form No. INC-33) and article (e-AOA in Form No.
INC-34) of company so furnished shall be duly signed by all the subscribers to the
memorandum in the manner prescribed by rule 13 of the Companies (Incorporation)
Rules, 2014 as stated below:
a. Each subscriber shall add his name, address, description & occupation, if
any, in the presence of at least one witness who shall attest the signature,
shall sign and add his name, address, description and occupation, if any.
b. Where a subscriber is illiterate, he shall affix his thumb impression or mark
which shall be described as such by the person, writing for him, who shall
place the name of the subscriber against or below the mark and authenticate
it by his own signature and he shall also write against the name of the
subscriber, the number of shares taken by him.
Note: The type written or printed particulars of the subscribers and witnesses
shall be allowed as if it is written, so long as appends signature or thumb
impression.
c. Where the subscriber is a body corporate, the memorandum and articles of

association shall be signed by director, officer or employee of the body
corporate duly authorized in this behalf by a resolution of the board of
directors.
d. Where the subscriber is a Limited Liability Partnership, it shall be signed by
a partner of the Limited Liability Partnership, duly authorized by a resolution
approved by all the partners of the Limited Liability Partnership:
Note: In either case c or d stated above, the person so authorized shall not,
at the same time, be a subscriber to the memorandum and articles of
Association.
e. Where subscriber to the memorandum is a foreign national residing outside

India his signatures and address on the memorandum and articles of
association and proof of identity shall be notarized by a Notary (Public)
with a certificate. Further, if such person residing in a country outside the
Commonwealth or which is not a party to the Hague Apostille Convention,
1961, the certificate of the Notary (Public) shall be authenticated by a
Diplomatic or Consular Officer.

INCIDENTAL THERETO
f. Where subscriber to the memorandum is a foreign national residing outside

India and visited in India and intended to incorporate a company, in such case
the incorporation shall be allowed if, he/she is having a valid Business Visa.
In case of Person is of Indian Origin or Overseas Citizen of India, requirement
of business Visa shall not be applicable.
Practical Insight / Illustration

Extracts from Memorandum of Association of Infosys Limited (Corporate
Identification Number: L85110KA1981PLC013115)

Declaration of Compliance by Professional & Director, Manager or Secretary

of company
A declaration that all the requirements of this Act and the rules made thereunder
in respect of registration and matters precedent or incidental thereto have been
complied with shall be be filled in Form No. INC-8 by:
a. an advocate, a chartered accountant, cost accountant or company secretary

in practice who is engaged in the formation of the company and
b. a person named in the articles as director, manager or secretary of the

company.
Declaration by subscribers to the memorandum and persons named as the

first directors
A declaration in Form No. INC-9 from each of the subscribers to the memorandum
and from persons named as the first directors (if any) in the articles, stating that all
the documents filed with the Registrar for registration of the company contain
information that is correct and complete and true to the best of his knowledge
and belief
a. He is not convicted of any offence in connection with the promotion,

formation or management of any company, or
b. He has not been found guilty of any fraud or misfeasance or of any breach
of duty to any company under this Act or any previous company law during
the last five years,
Address for correspondence
The address for correspondence till its registered office is established.
Particulars of persons named as the first directors
The particulars i.e name, including surname or family name, the Director
Identification Number (DIN), residential address, nationality and such other
particulars including proof of identity of each person mentioned in the articles as
first director of the company and his interest in other firms or bodies corporate
along with his consent (Form No. DIR-2) to act as director of the company shall be

INCIDENTAL THERETO
filed in Form No. DIR-12 along with the fee as provided in the Companies
(Registration offices and fees) Rules, 2014.
Particulars of subscribers to the memorandum
The following particulars of every subscriber to the memorandum shall be filled;
a. Name (including surname or family name) and recent Photograph affixed
b. Father’s/Mother’s name
c. Nationality, Proof of nationality in case the subscriber is a foreign national
d. Date and Place of Birth (District and State)
e. Educational qualification and Occupation
f. Permanent Account Number
g. Email id and Phone number of Subscriber
h. Permanent residential address and also Present address
i. Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile

Bill, provided that Bank statement Electricity bill, Telephone or Mobile bill
shall not be more than two months old
j. Proof of Identity (For Indian Nationals - Voter’s identity card, Passport copy,
Driving License copy, Unique Identification Number (UIN) & for Foreign
nationals and Non Resident Indians – Passport)
k. If the subscriber is already a director or promoter of a company(s), the

particulars relating to name of the company; Corporate Identity Number;
Whether interested as a director or promoter
Where the subscriber to the memorandum is a body corporate, then the following
particulars shall be filed with the Registrar
a. The name of the body corporate and Corporate Identity Number of the
Company or Registration number of the body corporate, if any
b. GLN, if any

c. The registered office address or principal place of business
d. E-mail Id
e. If the body corporate is a company, certified true copy of the board resolution
specifying inter-alia the authorization to subscribe to the MOA
f. If the body corporate is a limited liability partnership or partnership firm,

certified true copy of the resolution agreed to by all the partners specifying
inter alia the authorization to subscribe to the MOA
g. In case of foreign bodies corporate, the details relating to the copy of

certificate of incorporation of the foreign body corporate; & the registered
office address.
As per rule 12 of the Companies (Incorporation) Rules, 2014
In case any of the objects of a company requires registration or approval from

sectoral regulators such as the RBI and SEBI, then such registration or approval shall
be obtained by the proposed company before pursuing such objects and a
declaration in this behalf shall be submitted at the stage of incorporation.
In case of a Company being incorporated as a Nidhi, the declaration by the Central

Government under Section 406 of the Act shall be obtained by the Nidhi before
commencing the business and a declaration in this behalf shall be submitted at the
stage of incorporation by the Company.
ISSUE OF CERTIFICATE OF INCORPORATION ON REGISTRATION
The Registrar on the basis of documents and information filed, shall register all the
documents and information in the register and issue a certificate of incorporation in
the Form No. INC-11 to the effect that the proposed company is incorporated under
this Act. Certificate of Incorporation shall mention permanent account number of the
company where if it is issued by the Income-tax Department.

INCIDENTAL THERETO
Practical Insight
Certificate of Incorporation
Students are advised to take note;

The Certificate contains the name of the company, the date of its issue, CIN
(Corporate Identity Number) and the signature of the Registrar with his seal.
Certificate of incorporation is evidence of registration (existence of separate legal
entity with perpetual succession). It effects are highlighted by section 9, explain
later in this chapter.
Earlier, the certificate of incorporation considered as conclusive proof, but as per
the Companies Act, 2013, certificate of Incorporation is not conclusive proof of
everything prior to incorporation being in order. Sub-section (6) and (7) of
section 7 signify this understanding.

ALLOTMENT OF CORPORATE IDENTITY NUMBER (CIN)

On and from the date mentioned in the certificate of incorporation, the Registrar
shall allot to the company a corporate identity number, which shall be a distinct
identity for the company and which shall also be included in the certificate of
incorporation.
CIN is a 21 alpha-numeric digit based unique identification number, comprising

data sections/elements that reveals the basis aspects about company.
7
Example - Decode the CIN
CIN of Infosys Limited is L85110KA1981PLC013115

The first character – L (reveals listing status, L for listed and U for unlisted, for
instance Infosys is Listed one)
The next five digits – 85110

The next two letters – KA (reveals the Indian state where the company is registered,
for instance KA is for Karnataka)
The next four digits – 1981 (reveals the year of incorporation of a company)
The next three characters – PLC (reveals the company classification - PLC for public,
PTC for private, FTC for foreign, and GOI for government)
The last six digits – 013115 (reveals registration number with concerned ROC)
MAINTENANCE OF COPIES OF ALL DOCUMENTS AND INFORMATION
The company shall maintain and preserve copies of all the documents and
information as originally filed at its registered office, till its dissolution under this
Act.
FURNISHING OF FALSE OR INCORRECT INFORMATION OR SUPPRESSION
OF MATERIAL FACT AT THE TIME OF INCORPORATION (I.E. DURING
INCORPORATION PROCESS)
If any person furnishes any false or incorrect particulars of any information or
suppresses any material information, of which he is aware in any of the documents
filed with the Registrar in relation to the registration of a company, he shall be
liable for action for fraud under section 447.
7
This Example is only for understanding of the students.

INCIDENTAL THERETO
Note: Provisions of section 447 explained in detail in book chapter 3; Prospectus

and Allotment of securities.
COMPANY ALREADY INCORPORATED BY FURNISHING ANY FALSE OR

INCORRECT INFORMATION OR REPRESENTATION OR BY SUPPRESSING ANY
MATERIAL FACT (i.e. POST INCORPORATION)
Where, at any time after the incorporation of a company, it is proved that the company
has been got incorporated by
a. furnishing any false or incorrect information or representation or
b. by suppressing any material fact or information in any of the documents or

declaration filed or made for incorporating such company, or
c. by any fraudulent action,
Then, the promoters, the persons named as the first directors of the company and the
persons making declaration under this section shall each be liable for action for fraud
under section 447.
ORDER OF THE TRIBUNAL
Where a company has been got incorporated by
a. furnishing false or incorrect information or representation, or
b. by suppressing any material fact or information in any of the documents or

declaration filed or made for incorporating such company or
c. by any fraudulent action,
Then, the tribunal (NCLT) on being satisfied that the situation so warrants, in
response to an application made to it, may pass order as it may deem fit including;
a. regulation of the management of the company including changes, if any, in

its memorandum and articles, in public interest or in the interest of the
company and its members and creditors; or
b. direct that liability of the members shall be unlimited; or
c. direct removal of the name of the company from the register of companies; or
d. winding up of the company; or

Provided that before making any such order:
a. the company shall be given a reasonable opportunity of being heard in the

matter; and
b. the Tribunal shall take into consideration the transactions entered into by the
company, including the obligations, if any, contracted or payment of any
liability
Tribunal means the National Company Law Tribunal (NCLT) constituted on 1st June,
2016under section 408 of the Companies Act, 2013. The NCLT is a quasi- judicial
body in India that adjudicates issues relating to companies in India.
Example - The Certificate of incorporation is not the conclusive proof with respect
to the legality of the objects of the company mentioned in the objects clause of
the memorandum of association. As such, if a company has been registered whose
objects are illegal, the incorporation does not validate the illegal objects. In such a
case, the only remedy available is to wind up the company.
5. FORMATION OF COMPANIES WITH

CHARITABLE OBJECTS, ETC. [SECTION 8]
The underlying purpose of formation of company is not always making profit
through operating economic activities, it may have charitable or social objects.
To illustrate, Tata Foundation (CIN U85191MH2014NPL253500) and Azim Premji
Foundation (CIN U93090KA2001NPL028740). Students are advised to take note
that 5th data section of both the CIN comprises of ‘NPL’, which signify Not-for-Profit
License Company.
Such companies are licensed by Central Government* under section 8 of the

Companies Act, 2013 8, relevant provisions of section 8 and applicable rules thereto
are described below.
Note: The power of *Central Government under section 8 delegated to:

(i) ROCs 9 to the extent and for purpose of:
8
Act 18 of 2013
9
S.O. 1353(E), dated 21st May, 2014

INCIDENTAL THERETO
● sub-section (1);
● clause (i) to sub-section (4), except for alteration of memorandum in
case of conversion into another kind of company; and
● sub-section (5)
(ii) Regional Directors 10 to the extent and for purpose of:
● clause (i) to sub-section (4), for alteration of memorandum in case of
conversion into another kind of company; and
● sub-section (6)
WHO CAN ISSUE AND GET THE LICENSE UNDER SECTION 8(1)?
As per section 8, the Central Government (ROC in its behalf) may grant such a
licence if it is proved to the satisfaction that a person or an association of persons
proposed to be registered under this Act as a limited company
a. has in its objects the promotion of commerce, art, science, sports, education,
research, social welfare, religion, charity, protection of environment or any
such other object;
b. intends to apply its profits (if any) or other income in promoting its objects;
and
c. intends to prohibit payment of any dividend to its members.
Note: The use of the word ‘person’ appears to allow even a single person to form
a company for the objects specified. However, as discussed earlier also (under
heading ‘OPC’ of this chapter) that rule 3(5) of the Companies (Incorporation) Rules,
2014 prohibit the OPC to be incorporated or converted into a company under
section 8. Likewise, as per section 2(85), a small company cannot be incorporated
or converted into a section 8 company. A firm may be a member of the company
registered under section 8.
Despite, members liability is limited, the words ‘Limited’ or ‘Private Limited’ shall
not be added to its name. But on registration, the company shall enjoy same
privileges and obligations as of a limited company.
Licence issued may on such conditions as Central Government (ROC) deems fit.
10
S.O. 4090(E), dated 19th Dec, 2016

REGISTRATION OF COMPANY USING LICENSE

After granting licence, an application shall be made to registrar under section 8(1)
itself for registration of company in the manner specified in rule 19 of the
Companies (Incorporation) Rules 2014.
Application for registration
A person or an association of persons desirous of incorporating a company with
limited liability under section 8(1), shall make an application to registrar in Form
SPICe+ (Simplified Proforma for Incorporating company Electronically Plus: INC-
32) along with the fee as provided in the Companies (Registration offices and fees)
Rules, 2014.
Supporting document along with Application
The application furnished as specified above shall be accompanied by the following
documents;
a. The memorandum and articles of association of the proposed company in the
Form No. INC-13 and Form No. INC-31, respectively;
b. An estimate of the future annual income and expenditure of the company for
next three years, specifying the sources of the income and the objects of the
expenditure;
c. The declaration in by an Advocate, a Chartered Accountant, cost accountant
or Company Secretary in practice Form No. INC-14 and by each of the persons
making the application in Form No. INC-15, that;
♦ the memorandum and articles of association have been drawn up in
conformity with the provisions of section 8 and rules made thereunder
and
♦ all the requirements of the Act and the rules made thereunder relating
to registration of the company under section 8 and matters incidental
or supplemental thereto have been complied with;
ALTERATION OF MEMORANDUM AND ARTICLES REQUIRES PRIOR
PERMISSION OF GOVERNMENT
A company registered under this section requires prior permission from;
a. Central Government (power delegated to regional directors) for alteration
of its memorandum and
b. Central Government (power delegated to ROCs) for alteration of its articles.

INCIDENTAL THERETO
CONVERSION INTO ANY OTHER KIND OF COMPANY

A company registered under this section may convert itself into company of any
other kind only after complying with such conditions as may be prescribed in rule
21 and 22 of the Companies (Incorporation) Rule 2014 as described below;
a. A company shall pass a special resolution at a general meeting for approving
such conversion
b. An explanatory statement to notice of such general meeting must set-out
the details on reason of such conversion.
c. The company shall file an application in Form No. INC-18 with the Regional
Director with the fee along with a certified true copy of the special resolution
and a copy of the Notice convening the meeting including the explanatory
statement for approval for conversion.
Also attach the proof of serving of the notice served by registered post or
hand delivery, to:
♦ the Chief Commissioner of Income Tax having jurisdiction over the

company,
♦ Income Tax Officer who has jurisdiction over the company,
♦ the Charity Commissioner,
♦ the Chief Secretary of the State in which the registered office of the
company is situated,
♦ any organisation or Department of the Central Government or State

Government or other authority under whose jurisdiction the company
has been operating.
Note: If any of these authorities wish to make any representation to Regional

Director, it shall do so within sixty days of the receipt of the notice, after
giving an opportunity to the Company.
d. A copy of the application with annexures as filed with the Regional Director
shall also be filed with the Registrar.
e. The company shall, within a week from the date of submitting the application
to the Regional Director, publish a notice at its own expense, and a copy of

the notice, as published, shall be sent forthwith to the Regional Director and
the said notice shall be in Form No. INC-19 and shall be published;
♦ at least once in a vernacular newspaper in the principal vernacular
language of the district in which the registered office of the company is
situated, and having a wide circulation in that district, and at least once
in English language in an English newspaper having a wide circulation
in that district; and
♦ on the website of the company, if any, and as may be notified or
directed by the Central Government.
f. The company should have filed all its financial statements and Annual
Returns upto the financial year preceding the submission of the application
to the Regional Director and all other returns required to be filed under the
Act up to the date of submitting the application to the Regional Director
Note: In the event the application is made after the expiry of three months
from the date of preceding financial year to which the financial statement
has been filed, a statement of the financial position duly certified by
chartered accountant made up to a date not preceding thirty days of filing
the application shall be attached.
g. On receipt of the application, and on being satisfied , the Regional Director

shall issue an order approving the conversion of the company into a
company of any other kind subject to such terms and conditions as may be
imposed in the facts and circumstances of each case.
h. Before imposing the conditions or rejecting the application, the company
shall be given a reasonable opportunity of being heard by the Regional
Director
i. On receipt of the approval of the Regional Director, the company shall
convene a general meeting of its members to pass a special resolution for
amending its memorandum of association and articles of association and
the Company shall thereafter file these with the Registrar (with declaration
to adhere conditions if any, imposed by Regional Director)
j. On receipt of the documents referred above, the Registrar shall register the
documents and issue the fresh Certificate of Incorporation.

INCIDENTAL THERETO
REVOCATION OF LICENSE
a. The Central Government (power delegated to regional director) may by order

revoke the licence of the company where;
♦ the company contravenes any of the requirements or the conditions of

this sections subject to which a licence is issued or
♦ the affairs of the company are conducted fraudulently, or in violation of

the objects of the company or prejudicial to public interest,
Note: On revocation, the Registrar shall put ‘Limited’ or ‘Private Limited’

against the company’s name in the register.
Before such revocation a written notice must be served on such company and
opportunity to be heard in the matter shall be given.
b. Where a licence is revoked and the Central Government is satisfied, that it is

essential in the public interest; then after giving a reasonable opportunity of
being heard; by order it may direct that
♦ Company be wound up under this Act. Excess assets on the winding

up or dissolution, after the satisfaction of its debts and liabilities, may
be transferred to;
 Another company registered under this section and having

similar objects, subject to such conditions as the Tribunal may
impose, or
 May be sold and proceeds thereof credited to the Insolvency

and Bankruptcy Fund formed under section 224 of the
Insolvency and Bankruptcy Code, 2016.
♦ Company be amalgamated with another company registered under

this section and having similar objects. The Central Government
empowered with overriding effects to provide the said
amalgamation to form single entity with such constitution, properties,
powers, rights, interest, authorities and privileges and with such
liabilities, duties and obligations as may be specified in the order.

PENALTY/ PUNISHMENT IN CONTRAVENTION

Penalty for offences under section 8 are summarised below;
Offence Penalty
company makes any default company shall, be punishable with fine varying
in complying with any of the from ten lakh rupees to one crore rupees
requirements laid down in
directors and every officer of the company who is
this section
in default shall be punishable with fine varying
from twenty-five thousand rupees to twenty-five
lakh rupees
the affairs of the company every officer in default shall be liable for action
were conducted fraudulently under section 447
FIGURE- SUMMARY OF SUB-SECTION 6 TO 11 OF SECTION 8
Contravention
Licence revoked Punishment
Expression Amalgamate with Company with 10

Ltd. or Pvt. Winding up lacs to 1 crore
Section 8 company
Ltd. Added to Surplus Assets
with simlar
name transfer to:
objectives. Director or Officer
with 25 thousand to
25 lacs
Section 8 company (Fraud u/s 447)
Insolvency &
with simlar
Bankruptcy Fund
objectives.

INCIDENTAL THERETO
Additional reading
Relaxations available to a Section 8 Company include;
♦ Can call its general meeting by giving a clear 14 days’ notice instead of 21
days.
♦ Requirement of minimum number of directors, independent directors etc.

does not apply.
♦ Need not constitute Nomination and Remuneration Committee and

Shareholders Relationship Committee.
6. EFFECT OF REGISTRATION [SECTION 9]

Section 9 of the Act provides for the effect of registration of a company, it states;
From the date of incorporation specified in the certificate of incorporation, the

subscribers to the memorandum and all other persons, who may become members
of such company, shall be a body corporate by the name as contained in the
memorandum
Thereafter such body corporate, by the said name; shall be capable of;
a. Exercising all the functions of an incorporated company under this Act and
b. Having perpetual succession
c. Power to acquire, hold and dispose of property, both movable and

immovable, tangible and intangible,
d. To contract and to sue and be sued.

SUMMARY OF SECTION 9
Subscribers to the memorandum

and
All other persons,
who may from time to time, become members of the company
Registration (Certificate of Incorporation Granted)
From the date of incorporation

specified in the certificate of incorporation,
corporate by the name specified in memorandum
beceome body corporate,
Under said name
Exercising all the Power to

To contract Having
functions of an acquire, hold
and to sue perpetual
incorporated and dispose of
and be sued. succession
company property
movable and tangible and

immovable intangible
7. MEMORANDUM OF ASSOCIATION – MOA

[SECTION 4]
Memorandum of association (MOA) is the fundamental document for the formation
of the company, hence considered as its charter or constitution. Memorandum
defines the relationship of the company with outsiders because it enables all those
who deals with the company to know what its powers are and what activities it can
engage in. The memorandum shall contains the following clauses:
a. Name Clause
b. Situation Clause (also called registered office clause)

INCIDENTAL THERETO
c. Objects Clause
d. Liability Clause
e. Capital Clause (applicable, if company is formed with share capital)
f. Association Clause or Subscription Clause (specifically drafted in case of OPC)
g. Nomination Clause (applicable, in case of OPC)

Section 4 of the Act along with relevant rules from the Companies (Incorporation)
Rules 2014, provides for the requirements with respect to memorandum.
NAME CLAUSE [SECTION 4 (1) (a) READ WITH SUB-SECTION 2 TO 5]

The name of the company with the last word “Limited” in the case of a public limited
company, or “Private Limited” in the case of a private limited company.
The above clause is not applicable in case of section 8 companies.

In case of Specified IFSC Public Company 11 & IFSC Private Company 12, name shall
have the suffix, “International Financial Service Company” or “IFSC”.
Application for reserving name for proposed company [sub-section 4]

A person may make an application in SPICe+ (Simplified Proforma for Incorporating
Company Electronically Plus: INC-32) accompanied by fee, as provided in the
Companies (Registration Offices and Fees) Rules, 2014, to the Registrar for
reservation of a name set out in the application as name of the proposed company.
Resubmission shall be allowed within 15 days, for rectification of defect, if any.
Application for reserving the name for the changing name of existing
company [sub-section 4]
A person may make an application, using web service RUN (Reserve Unique Name)
along with fee as provided in the Companies (Registration Offices and Fees) Rules,
2014, to the Registrar for the reservation of a name set out in the application as
the name to which the company proposes to change its name. Resubmission shall
be allowed within 15 days, for rectification of defect, if any.
11
GSR 08 (E) dated 04.01.2017
12
GSR 09 (E) dated 04.01.2017

Restriction regarding names and use of words & expressions therein [sub-
section 2 and 3]
Sub-section 2 states that the name mentioned in the memorandum shall not be;
a. Identical with or resemble too nearly to the name of an existing company
registered under this Act or any previous company law; or
b. Such, use of which by the company will constitute an offence under any law
for the time being in force; or
c. Such, use of which by the company is undesirable in the opinion of the
Central Government (this power of Central Government has been delegated to
ROC) 13
Further, sub-section 3 provides, unless the previous approval of the Central
Government has been obtained; a company shall not be registered with that
name;
d. Which contains any word or expression that is likely to give the impression
that the company is in any way connected with, or having the patronage
of, the Central Government, any State Government, or any local authority,
corporation or body constituted by the Central Government or any State
Government under any law for the time being in force; or
e. Which includes words or expressions namely Board; Commission; Authority;
Undertaking; National; Union; Central; Federal; Republic; President;
Rashtrapati; Small Scale Industries; Khadi and Village Industries Corporation;
Financial Corporation and the like; Municipal;; Development Authority; Prime
Minister or Chief Minister; Minister; Nation; Forest corporation; Development
Scheme; Statute or Statutory; Court or Judiciary; Governor; Bureau; and the
use of word Scheme with the name of Government (s), State, India, Bharat or
any Government authority or in any manner resembling with the schemes
launched by Central, State or local Governments and authorities.
A name is said to ‘resemble’ when difference is only and only of

a. Plural or singular form of words in one or both names (Green Technology Ltd.
is same as Greens Technology Ltd. and Greens Technologies Ltd.)
13
S.O. 1353(E), dated 21st May, 2014.

INCIDENTAL THERETO
b. Type and case of letters, spacing between letters, and punctuation marks used
in one or both names (ABC Ltd. is same as A.B.C. Ltd. and A B C Ltd.)
c. Use of different tenses in one or both names (Ascend Solutions Ltd. is same
as Ascended Solutions Ltd. and Ascending Solutions Ltd.)
d. Slight variation in the spelling of the two names including a grammatical
variation thereof (Disc Solutions Ltd. is same as Disk Solutions Ltd. but it is
not same as Disco Solutions Ltd)
e. Use of different phonetic spellings including use of misspelled words of an
expression (Bee Kay Ltd is same as BK Ltd, Be Kay Ltd., B Kay Ltd., Bee K Ltd.,
B.K. Ltd. and Beee Kay Ltd)
f. Complete translation or transliteration, and not part thereof, of an existing
name, in Hindi or in English (National Electricity Corporation Ltd. is same as
Rashtriya Vidyut Nigam Ltd.)
g. Use of host name such as ‘www’ or a domain extension such as .net’. org’,
‘dot’ or ‘com’ in one or both names (Ultra Solutions Ltd. is same as
Ultrasolutions.com Ltd. But Supreme Ultra Solutions Ltd. is not the same as
Ultrasolutions.com Ltd.)
h. The order of words in the names (Ravi Builders and Contractors Ltd. is same
as Ravi Contractors and Builders Ltd.)
i. Use of the definite or indefinite article in one or both names (Congenial Tours
Ltd. is same as A Congenial Tours Ltd. and The Congenial Tours Ltd. But Isha
Industries Limited is not the same as Anisha Industries Limited.)
j. Addition of the name of a place to an existing name, which does not contain
the name of any place; (If Salvage Technologies Ltd. is an existing name, it is
same as Salvage Technologies Delhi Ltd. But Retro Pharmaceuticals Ranchi
Ltd. is not the same as Retro Pharmaceuticals Chennai Ltd.)
k. addition, deletion, or modification of numerals or expressions denoting
numerals in an existing name, unless the numeral represents any brand
(Thunder Services Ltd is same as Thunder 11 Services Ltd and One Thunder
Services Ltd.)
Students may also refer to 23 instances specified in rule 8A of the Companies
(Incorporation) Rules 2014 that tantamount to “undesirable names”

Reservation of name [sub-section 5]

Upon receipt of an application the Registrar may, on the basis of information and
documents furnished along with the application, reserve the name for a period of
twenty days from the date of approval or such other period.
Provided that in case of an application for reservation of name or for change of
its name by an existing company, the Registrar may reserve the name for a period
of sixty days from the date of approval.
1. While allotting names, the Registrar of Companies concerned should exercise

due care to ensure that the names are not in contravention of the provisions
of the Emblems and Names (Prevention of Improper Use) Act, 1950. It is
necessary that Registrars are fully familiar with the provisions of the said Act. 14
2. An application for extension of reservation of name under rule 9A of the
Companies (Incorporation) Rules 2014 can be made before expiry of 20 days;
a. For another 20 days (total of 40 days) with fee of ` 1000, which may be further
extend by another 20 day (total of 60 days) with fee of ` 2000.
Or
b. For another 40 days (total of 60 days) with fee of 3000
Cancellation of reserved name [sub-section 5]

Where after reservation of name, it is found that name was applied by furnishing
wrong or incorrect information, then
a. if the company has not been incorporated, the reserved name shall be
cancelled and the person who has made the application shall be liable to a
penalty which may extend to one lakh rupees;
b. if the company has been incorporated, the Registrar may, after giving the
company an opportunity of being heard;
♦ Either direct the company to change its name within a period of 3
months, after passing an ordinary resolution;
♦ Take action for striking off the name of the company from the register
of companies; or
♦ Make a petition for winding up of the company.
14
General Circular No. 29/2014, dated 11th July, 2014

INCIDENTAL THERETO
Example: Mr. Anil Desai, has applied for reservation of company name with a prefix
“Sanwariya”. He claimed that the Prefix “Sanwariya” is registered trademark in his
name. Later on, it is found that the said prefix is not registered with Mr. Anil Desai,
however, he has formed company by giving incorrect documents/ information
while applying the name of the company. In such case, the Registrar shall take
action as per the provisions of the Act after giving opportunity of being heard.
SITUATION CLAUSE - SECTION 4 (1) (b)

Section 4(1)(b) requires, the memorandum of a company shall mention the name of
state, where registered office is proposed to be situated.
The situation (place) of registered office is important from perspective of;
a. Establishing the domicile of company for the purpose of determining
jurisdictions in context to compliance (ROC, RD etc.), judicial aspects (bench
of NCLT, high court etc.), fiscal aspects (taxation), and for many other
purposes.
b. Place at which the company’s statutory books must normally be kept (in case
of public company, general meeting also required to be conducted at
registered office or in the city where it is situated).
c. Act as the address to which notices and other communications can be sent.
A company shall, within thirty days of its incorporation and at all times thereafter,
have a registered office capable of receiving and acknowledging all
communications and notices as may be addressed to it.
OBJECT CLAUSE & DOCTRINE OF ULTRA VIRES

Section 4(1)(c), requires the memorandum of a company shall state the objects for
which the company is proposed to be incorporated and any matter considered
necessary in furtherance thereof.
Specified IFSC Public Company & IFSC Private company shall state its objects to
do financial services activities as permitted under the Special Economic Zones
Act, 2005 read with SEZ Rules, 2006 and any matter considered necessary in
furtherance thereof in accordance with license to operate, from International
Financial Services Centre located in an approved multi services Special Economic
Zone, granted by the RBI, SEBI, or IRDA.

A company can’t depart away to do anything beyond or outside its objects stated
in memorandum and if any act done beyond that will be ultra vires and void, same
can’t be ratified even by the assent of the whole body of shareholders.
Note: Acts ultra-vires to the authority of the directors may be ratified by the
company.15 Articles provide for regulations inside scope established by MOA, hence
acts beyond (ultra-vires) the articles, can be ratified by the shareholders provided
the relevant provisions are not beyond the memorandum. To illustrate; One of the
director is authorised to issue cheque of ` 10000, but he issued for ` 12000; company
can ratify so.
It is worth noting here that Memorandum of company can be altered to widen the scope
of objects, but such alteration shall have prospective effect only; not the retrospective,
hence an act once ultra-vires remain so ever.
A company may do anything which is incidental to and consequential upon the
objects specified and such act will not be an ultra vires act. 16 To illustrate for trade
one have rent or own a building, issue invoices, make and receive payments.
Essence of the Doctrine of Ultra Vires
The Doctrine of Ultra Vires is meant to protect shareholders and the creditors of the
company or anyone who deals with the company.
Enunciation of Doctrine of Ultra Vires
The doctrine of ultra vires was first enunciated by the House of Lords in a classic case,
Ashbury Railway Carriage and Iron Co. Ltd. v. Riche. 17
The memorandum of the company in the said case defined its objects thus: “The
objects for which the company is established are to make and sell, or lend or hire,
railway plants to carry on the business of mechanical engineers and general
contractors…….”
The company entered into a contract with M/s. Riche, a firm of railway contractors to
finance the construction of a railway line in Belgium. On subsequent repudiation of
this contract by the company on the ground of its being ultra vires, Riche brought a
case for damages on the ground of breach of contract, as according to him the words
15
Rajendra Nath Dutta v. Shilendra Nath Mukherjee, (1982) 52 Com Cases 293 (Cal.)
16
Attorney-General v. Great Eastern Rly Co (1880) 5 AC 473
17
(1878) L.R. 7 H.L. 653

INCIDENTAL THERETO
“general contractors” in the objects clause gave power to the company to enter into
such a contract and, therefore, it was within the powers of the company. More so
because the contract was ratified by a majority of shareholders.
The House of Lords held that the contract was ultra vires the company and,
therefore, null and void. The term “general contractor” was interpreted to indicate
as the making generally of such contracts as are connected with the business of
mechanical engineers. The Court held that if every shareholder of the company had
been in the room and had said, “That is a contract which we desire to make, which
we authorise the directors to make”, still it would be ultra vires. The shareholders
cannot ratify such a contract, as the contract was ultra vires the objects clause,
which by Act of Parliament, they were prohibited from doing.
Effects of Doctrine of Ultra Vires
The key effect will be as under;
a. Whenever an ultra vires act has been or is about to be undertaken, any
member of the company can get an injunction to restrain it from proceeding
with it. 18
b. Neither party (even outsider) can sue for enforcement or specific performance
of such agreement. Reason explained under heading Constructive Notice
LIABILITY CLAUSE
Section 4(1)(d) requires, the memorandum of a company shall state;
a. In the case of a company limited by shares the liability of its members is
limited to the amount unpaid, if any, on the shares held by them; and
b. In the case of a company limited by guarantee, the amount up to which
each member undertakes to contribute:
♦ to the assets of the company in the event of its being wound-up while
he is a member or within one year after he ceases to be a member, for
payment of the debts and liabilities of the company or of such debts and
liabilities as may have been contracted before he ceases to be a member,
as the case may be; and
♦ to the costs, charges and expenses of winding-up and
for adjustment of the rights of the contributories among themselves
18
Attorney-General v. Great Eastern Rly Co (1880) 5 AC 473

Note: Those shareholders who are members of the company at the time of its
winding-up are included in list 'A'. They are primarily liable for making payment to
the company at the time of its winding-up. While list 'B' consists of those persons
who were the members of the company during the 12 months preceding the date
of winding-up. B list contributories are liable to contribute if the amount realised
from the contributories of list ‘A’ is not sufficient to discharge the liabilities of the
company.
Example - Modern Furniture limited, a company limited by shares having share

capital divided into shares with face value of ` 10 each, out of which ` 8 is called
up. Mr. Singh who is having 200 share paid all ` 8 on each of share he hold, while
Ms. Sarla owning 100 shares paid ` 10 (Rupee 2 in advance); whereas Mr. Sanju
owning 250 shares paid ` 6 per share (` 2 in arrear per share). Liability of Mr. Singh,
Ms. Sarla, and Mr. Sanju shall be maximum upto ` 400, Nil, and ` 1000 only;
respectively.
CAPITAL CLAUSE
Section 4 (1) (e) (i) requires, in the case of a company having a share capital, the
memorandum of a company shall state;
a. The amount of share capital with which the company is to be registered
(usually termed as authorised or nominal capital); and
b. The division thereof into shares of a fixed amount (i.e. face value and number
of shares); and
c. The number of shares which the subscribers to the memorandum agree to
subscribe which shall not be less than one share.
SUBSCRIPTION CLAUSE
Section 4 (1) (e) (ii) requires, the memorandum of a company shall state, the number
of shares each subscriber to the memorandum intends to take, indicated opposite
his name, in the case of a company having a share capital.
NOMINATION CLAUSE (ONLY IN CASE OF ONE PERSON COMPANY)
Section 4 (1) (f), requires, the memorandum of a company shall state the name of the
person (nominee) who, in the event of death of the subscriber, shall become the
member of the company, in the case of One Person Company.
Note: This provision is corresponding to first proviso to section 3 (1) already
discussed earlier in this chapter.

INCIDENTAL THERETO
FORMS AND SCHEDULE RELATED TO MEMORANDM [SUB-SECTION 6]

The memorandum of a company shall be in respective forms specified in Tables A,
B, C, D and E in Schedule I to the Act, as the case shown in figure;
Forms of MOA
Table A
Memorandum of
association of a
company limited by
shares
Table B
Table E
Memorandum of
Memorandum of
association of a
association of an
company limited by
unlimited company
guarantee and not
and having share
having a share
capital
Forms of MOA capital
Table C
Table D
Memorandum of
Memorandum of
association of a
association of an
company limited by
unlimited company
guarantee and
and not having
having a share
share capital
capital
1. As per section 399 of the Act, a memorandum is a public document.

Consequently, every person entering into a contract with the company is presumed
to have the knowledge of the conditions contained therein.
2. As per section 4 (7), any provision in the memorandum or articles, in the case
of a company limited by guarantee and not having a share capital, shall not give
any person a right to participate in the divisible profits of the company otherwise
than as a member. If the contrary is done, it shall be void.

8. ARTICLES OF ASSOCIATION – AOA [SECTION 5]

Actually, articles of association of a company contains internal rules and regulations
of the company. It is complementary to Memorandum and together give effect as
charter of the company. Article establish a contract between the company and the
members and between the members inter se. This contract governs the ordinary
rights and obligations incidental to membership in the company 19
Section 5 of the Companies Act, 2013 and rule 10 and 11 of the Companies
(Incorporation) Rules, 2014 seeks to provide the contents and model of articles of
association. The provisions are state below;
CONTENTS AND MATTERS TO BE INCLUDED [SUB-SECTION 1 AND 2]
The articles of a company shall contain;
a. The regulations for management of the company.
b. Such matters as may be prescribed (rules 11 of the Companies (Incorporation)
Rules, 2014 refers to the matters specified in the model forms given under
schedule I to the Act).
However, a company may also include such additional matters in its articles as may
be considered necessary for its management.
PROVISION FOR ENTRENCHMENT [SUB-SECTION 3 TO 5]
Entrenchment is the chronic or deep-rooted fact of an attitude, habit, or belief that

is firmly established or accustomed, therefore it become difficult or unlikely to
change. To illustrate – Men don’t cry
Entrenchment may be possible for processes, as well as procedures in both way; that
processes are so well established, it become difficult to change them or make process
of change so rigid that process become well established.
Students, here we are studying the word entrenchment with sense of making
the process of alteration in articles more difficult, in order to enhance the
protection.
Usually an article of association may be altered by passing special resolution but

entrenchment makes it more difficult to change the articles, in manner specified ahead;
19
Naresh Chandra Sanyal v. Calcutta Stock Exchange Association Ltd. AIR 1971 SC 422

INCIDENTAL THERETO
Article may contain provisions for entrenchment [Sub-section 3]
The articles may provide that specified provisions contained in it may be altered
only if conditions that are more restrictive and harder than those applicable in the
case of a special resolution, are met or complied with.
Manner of inclusion of the entrenchment provision [Sub-section 4]

The provisions for entrenchment shall only be made either:
a. On formation of a company, or
b. By an amendment in the articles agreed to
♦ By all the members of the company in the case of a private company
and
♦ By a special resolution in the case of a public company.

Summary of Section 5(4)
At Formation
Timing of
Entrenchment Private Co. - All members
After coming
in existence
Public Co. - Special Resolution
Notice to the registrar of the entrenchment provision [Sub-section 5 read with

Rule 10 of the Companies (Incorporation) Rules, 2014]
The company shall give notice to the Registrar of entrenchment provisions included
in article
a. In the SPICe+(Simplified Proforma for Incorporating company Electronically
Plus: INC-32), along with the fee as provided in the Companies (Registration
offices and fees) Rules, 2014 at the time of incorporation of the company, and
b. In case of existing companies, in Form No. MGT-14 within thirty days from
the date of entrenchment of the articles, along with the fee as provided in the
Companies (Registration offices and fees) Rules, 2014.

Summary of Section 5(5) and Rule 10
At Formation - In the SPICe+

Notice of
Entrenchment After coming in existence - Form No.
MGT-14 within thirty days
MODEL FORMS OF ARTICLES [SUB-SECTION 6 TO 8]

Sub-section 6 provides that the articles of a company shall be in respective forms
specified in Tables, F, G, H, I and J in Schedule I to the Act as specified in figure.
Such forms are called model forms.
Further, sub-section 7 provides leeway to company, in adopting all or any of the
regulations contained in the model articles applicable to such company.
Forms of AOA
Table F
Articles of
association of a
company limited
by shares
Table J Table G
Articles of Articles of
association of an association of a
unlimited company limited
company and not by guarantee and
having share Model forms of having a share
capital AOA capital
Table I Table H
Articles of Articles of
association of an association of a
unlimited company limited
company and by guarantee and
having share not having a
capital share capital

INCIDENTAL THERETO
Students are advised to take note:

Sub-section 8 provides that in case of any company, which is registered after the
commencement of this Act, in so far as the registered articles of such company do
not exclude or modify the regulations contained in the model articles applicable to
such company, those regulations shall, so far as applicable, be the regulations of
that company in the same manner and to the extent as if they were contained in
the duly registered articles of the company – Either exclude or modify expressly
or else it applies what stated in model applicable to company.
Sub-section 9 restricts the scope of section to the articles either registered or
amended under this Act - Hence no provision of this section (section 5) shall be
applicable to articles registered under previous company law; provided not
amended under this Act.
Illustration – Question & Answer
Question – Highlight differences between the MOA and AOA
Answer - The key differences between the MOA and AOA includes;
1. Content - The memorandum contains the fundamental conditions as basis of

incorporation. It lays down the parameters that define relation of company with
outsiders. The Articles contain internal regulations of the company; hence regulate
the relationship between company and the members and members inter se.
2. Supremacy - Memorandum cannot include any clause that is contrary to the

provisions of the law, whereas the articles shall be subordinate to both the law and
memorandum. Therefore, in case on conflict among the two, the MOA shall
prevail.
3. Scope -Memorandum lays down the scope beyond which the activities of the
company cannot go. An act done by a company beyond the scope of the
memorandum are ultra vires and void. They cannot be ratified even by all the
shareholders. Articles provide for regulations inside scope established by MOA,
hence acts beyond the articles can be ratified by the shareholders provided the
relevant provisions are not beyond the memorandum.

9. DOCTRINE OF CONSTRUCTIVE NOTICE AND

DOCTRINE OF INDOOR MANAGEMENT
Both the doctrines carries the counter effect to each other, doctrine of constructive
notice put onus on outsider to be aware of what is stated in MOA and AOA; whereas
doctrine of indoor management protects such outsider from internal irregularities.
DOCTRINE OF CONSTRUCTIVE NOTICE
Essence of Doctrine of Constructive Notice
All those who are dealing with company deemed to be aware of what is stated in
its MOA and AOA, in its true perspective, because both this documents are public
documents.
Section 399* provides that the Memorandum and Articles when registered with
Registrar of Companies ‘become public documents’ and then they can be inspected
by any one by electronic means on payment of the prescribed fee.
Further, Section 17 provides that a company shall on payment of the prescribed
fee send a copy of each of the following documents to a member within seven days
of the request being made by him
a. Memorandum;
b. Articles;
c. Every agreement and every resolution referred to in sub-section (1) of section
117, if and so far as they have not been embodied in the memorandum and
articles.
Any failure will make the company as well as every officer in default liable to a fine
of one thousand rupee for each day during which default continues or one lac
rupee whichever is less.
*Section 399 is not part of syllabus, but essential to develop understanding.

Enunciation of Doctrine of Constructive Notice
The doctrine of constructive notice is based on the rule laid down in Ernest v Nicholls. 20
It was held for the first time that any person who is dealing with the company is deemed
20
(1857) 6 HL Cas 401

INCIDENTAL THERETO
to be familiar with the contents of all the public documents of the company. The
memorandum and the articles of association of every company are registered with the
Registrar of Companies. The office of the Registrar is a public office. Hence, the
memorandum and the articles of association become public documents. It is therefore
the duty of person dealing with a company to inspect its public documents and make
sure that his contract is in conformity with their provisions.
As observed by Lord Hatherley whether a person actually reads them or not, he is to be
in the same position as if he had read them.
Effect of Doctrine of Constructive Notice
Every person (dealing with company) shall be presumed to know the contents of the
documents and understood them in their true perspective.
Absence of notice of MOA and AOA cannot be an excuse to claim relief for
outsiders. 21 Even if the party dealing with the company does not have actual notice
of the contents of these documents, it is presumed that he has an implied
(constructive) notice of them.
Example - One of the articles of a Modern Furniture Limited provides that a cheque
below ` 1 lacs may be signed by single director but if above ` 1 lac shall be signed
by at-least two directors. Similar instructions issued to bank with which MFL have
account, as well. M/s Sagwan Wood Works, a vendor accepts a cheque of
` 2.20 lacs, signed only by single director. Considering Doctrine of Constructive
Notice, the M/s Sagwan Wood Works (payee) has no right to claim, when cheque
will be returned without payment by bank.
Criticism of Doctrine of Constructive Notice
The ‘Doctrine of Constructive Notice’ is an unreal doctrine. People know a company
through its officers and not through its documents. Since it does not take notice of
the realities of business life, hence caused inconvenient for business transaction.
To illustrate, where the directors or other officers of the company were
empowered under the articles to exercise certain powers subject only to certain
prior approvals or sanctions of the shareholders, it is difficult for an outsider to
ascertain whether necessary sanctions and approvals have been obtained before a
certain officer exercises his powers or not.
21
Kotla Venkataswamy v. Chinta Ramamurthy. AIR (1934) Mad 579

Therefore, to mitigate such a situation, those dealing with the company can assume
that if the directors or other officers are entering into those transactions, they
would have obtained the necessary sanctions. This is known as the ‘Doctrine of
Indoor Management’ or Turquand’s Rule, and act as an exception to the
constructive notice.
The Europe Communities Act, 1972 has abrogated this doctrine through effect of
its section 9. Even in India also the Calcutta High Court 22 enforced a security which
was not signed in accordance with the company’s articles.
DOCTRINE OF INDOOR MANAGEMENT
Essence of Doctrine of Indoor Management
The people who are dealing with company are entitled to presume that internal
proceedings and requirements has been duly met.
Enunciation of Doctrine of Indoor Management
The Doctrine of Indoor Management was first laid down in the case of Royal British
Bank v. Turquand 23
The directors of a company were authorised by the articles to borrow on bonds

such sums of money as should from time to time, by a resolution of the company
in general meeting, be authorised to be borrowed. The directors gave a bond to
Turquand without the authority of any such resolution. The question arose whether
the company was liable on the bond. Held, the company was liable on the bond, as
Turquand was entitled to assume that the resolution of the company in general
meeting had been passed.
Rationale of Doctrine of Indoor Management
What happens internally in a company is not a matter of public knowledge. An

outsider can only presume the intentions of a company, but not know the
information he/she is not privy to.
If not for the doctrine, the company could escape creditors by denying the authority
of officials to act on its behalf.
22
Charnock Collieries Co Ltd v. Bholanath Dhar. ILR (1912) 39 Cal 810.
23
(1856) 6 E & B 327

INCIDENTAL THERETO
Exceptions to Doctrine of Indoor Management
Relief on the ground of ‘indoor management’ cannot be claimed by an outsider

dealing with the company in the following circumstances;
a. Knowledge of irregularity - In case this ‘outsider’ has actual knowledge of

irregularity within the company, the benefit under the rule of indoor
management would no longer be available. In fact, he/she may well be
considered part of the irregularity.
b. Negligence: If with a minimum of effort, the irregularities within a company

could be discovered, the benefit of the rule of indoor management would not
apply. The protection of the rule is also not available where the circumstances
surrounding the contract are so suspicious as to invite inquiry, and the
outsider dealing with the company does not make proper inquiry.
c. Forgery: The rule does not apply where a person relies upon a document that
turns out to be forged since nothing can validate forgery. A company can
never be held bound for forgeries committed by its officers.
d. Where the question is in regard to the very existence of an agency.
e. Where a pre-condition is required to be fulfilled before company itself can

exercise a particular power. In other words, the act done is not merely ultra
vires the directors/officers but ultra vires the company itself.
Illustration
The doctrine of indoor management is considered to be ______ to the doctrine of

constructive notice.
a. Exception
b. Extension
c. Alternative
d. Not related
Answer – a. Exception

10. ACT TO OVERRIDE MEMORANDUM,

ARTICLES, ETC. [SECTION 6]
The provisions of this Act shall have overriding effect to the provisions contained in;
a. Memorandum of company; or
b. Articles of company; or
c. Any agreement executed by it; or
d. Any resolution passed by the company in general meeting or by its Board of
Directors
Whether the same be registered, executed or passed, as the case may be, before
or after the commencement of this Act
Any provision contained in the memorandum, articles, agreement or resolution, to
the extent in conflict to the provisions of the Act; shall be void.
Example - Section 123 declares that no dividend shall be paid by a company except
out of profits. The force of this section cannot be undone by any provision in the
articles of association, because the articles cannot sanction something which is
forbidden by the Act. Even still it attempts then shall be void.
Note: This section starts with saving clause i.e. “Save as otherwise ….”, means if any
other section of the Act says that provisions contained in the memorandum,
articles, agreement or resolution is superior then we will treat it accordingly.
Example - Section 47 of the Act deals with voting power of members. A notification
dated 5th June, 2015 says that section 47 is applicable to a private company subject
to its Article of Association (AOA). Now if AOA of a private company says that
section 47 is not applicable to it then, in this case AOA will become superior and
section 47 of the Act will not be applicable.
11. EFFECT OF MEMORANDUM AND ARTICLES

[SECTION 10]
Sub-section 1 to Section 10 aims to impart contractual force to the Memorandum
and Articles. It provides, when the memorandum and articles got registered; it shall
bind the

INCIDENTAL THERETO
a. Members to the company;

b. Company to the members;
c. Members to the members;
To observe all the provisions of the memorandum and of the articles, as signatory
thereof.
Example (Member to the Company)
The articles of association of the Steel Bros & Co Ltd contained clauses to the effect
that on the bankruptcy of a member his shares would be sold to a person and at a
price fixed by the directors. Borland, a shareholder, was adjudicated bankrupt. His
trustee in bankruptcy claimed that he (Borland) was not bound by these provisions
and should be at liberty to sell the shares at their true value. But it was held that
contracts contained in the articles of association is one of the original incidents of
the shares. Shares having been purchased on those terms and conditions, it is
impossible to say that those terms and conditions are not to be observed. 24
Example (Company to the Member)
The articles of the Odessa Waterworks Co provided that "the directors may, with
the sanction of the company at general meeting, declare a dividend to be paid to
the members". Instead of paying the dividend in cash to the shareholders a
resolution was passed to give them debenture bonds. In an action by Mr. Wood, a
member to restrain the directors from acting on the resolution, it was held that
"The question is whether that which is proposed to be done in the present case is
in accordance with the articles of association of the company. Those articles provide
that the directors may, with the sanction of a general meeting, declare a dividend
to be paid to shareholders. Prima facie that means to be paid in cash. The debenture
bonds proposed to be issued are not a payment in cash." 25
Example (Member to the Member)
Mr. Rayfield was a shareholder in a company. Clause 11 of the articles of company

required him to inform the directors of his intention to transfer his shares in the
company and which provided that the directors will take the said shares equally
between them at a fair value. In accordance with this provision the Mr. Rayfield so
24
Borland's Trustee v Steel Bros & Co Ltd (1901) 1 Ch 279
25
Wood v Odessa Waterworks Co (1889) 42Ch D 636

notified the directors (who are members as well), who contended that they were
not bound to take and pay for the shares. They said, articles could not impose such
obligation upon them in their capacity as directors. Their argument was set aside
by the court by treating those directors as members. Accordingly, the directors
(being members) were compelled to take the Mr. Rayfield’s shares at a fair value. 26
Students are advised to take Note;
1. Articles bind the members to the company and the company to the members.
But neither of them is bound to an outsider to give effect to the articles. "No Article
can constitute a contract between the company and a third person."
Example - The articles of association of a company, La Trinidad contained a clause

to the effect that Browne should be a director and should not be removable till
after 1888. He was, however, removed earlier and had brought an action to restrain
the company from excluding him. It was held that there was no contract between
Browne and the company. No outsider can enforce articles against the Company
even if they purport to give him certain rights. 27
2. Further sub-section 2 to section 10 provides, all monies payable by any member

to the company under the memorandum or articles shall be a debt due from him
to the company.
Example - A company can recover calls in arrear from a member as forcefully as it

is recovering loan due.
12. ALTERATION OF MEMORANDUM [SECTION 13]

PROCEDURE OF ALTERATION OF MEMORANDUM
Alteration includes the making of additions, omissions and substitutions. Section

13 of the Act along with Rules 29 to 32 of the Companies (Incorporation) Rules,
2014 provides the provisions that deals with the alteration of the memorandum,
detailed below;
26
Rayfield v Hands (1958) 2 WLR 851
27
Browne v La Trinidad (1887)37 Ch D 1

INCIDENTAL THERETO
Alteration by special resolution [Sub-section 1]

Company may alter the provisions of its memorandum with the approval of the
members by a special resolution. Further, as per section 13(6) (a) company shall file
with the Registrar, such special resolution.
Name change of the company [Sub-section 2 and 3]
As per sub-section 1, any change in the name of a company shall be effected only
with the approval of the Central Government (power delegated to ROC by Central
Government) 28 in writing in Form No. INC-24 along with fee.
However, no such approval shall be necessary where the change in the name of the
company is only the addition/deletion of the word “Private”, on the conversion of
any one class of companies to another class in accordance with the provisions of
the Act.
The change of name shall not be allowed to a company which has not filed annual
returns or financial statements due for filing with the Registrar or which has failed
to pay or repay matured deposits or debentures or interest thereon. Once the
necessary documents filled or payment or repayment made then change shall be
allowed.
As per clause (b) to sub-section 6 to section 13, the approval from the Central
Government, shall be filed with registrar by the company. Practically importance of
provision is demeaned as power of central government is already delegated to
ROC.
Further, as per sub-section 2, on any change in the name of a company, the
Registrar shall enter the new name in the register of companies in place of the
old name and issue a fresh certificate of incorporation in the Form No. INC-25
with the new name and the change in the name shall be complete and effective
only on the issue of such a certificate.
Example – Tata Sky Limited changed its Name to Tata Play Limited (CIN
U92120MH2001PLC130365).
Industrial Insight
On August 24, 1910, a company was registered in India under the name Imperial
Tobacco Company of India Limited. As the Company's ownership progressively
28
Notification S.O. 1353(E), dated 21st May, 2014

Indianised, the name of the Company was changed to India Tobacco Company
Limited in 1970 and then to I.T.C. Limited in 1974. In recognition of the ITC's multi-
business portfolio encompassing a wide range of businesses, the full stops in the
Company's name were removed effective September 18, 2001. The Company now
stands rechristened 'ITC Limited,' where 'ITC' is today no longer an acronym or an
initialised form.
Students are advised to that note that:

Even If a company has to rectify its name under section 16, then also, nothing shall
prevent such company from subsequently changing its name in accordance with the
provisions of section 13.
RECTIFICATION OF NAME OF COMPANY [SECTION 16]

Where Central Government (power of Central Government under this section
conferred (delegated) upon Regional Directors by section 458 of the Act) 29 is of
opinion that name (original or revised/new) of company is identical with or too nearly
resembles to the name by which a company in existence;
a. On its own or
b. On an application by a proprietor of already registered trade mark under the
Trade Marks Act, 1999
Then it may direct the company to change its name;
The company shall change its name or new name, as the case may be, within a period
of three months from the issue of such direction, after adopting an ordinary
resolution for the purpose.
Note - Application by a proprietor of registered trade mark shall be made within three
years of incorporation or registration or change of name of the company
Further, the company, after changing its name or obtains a new name shall give notice
of the change to the Registrar along with the order of the Central Government
(Regional Directors) within a period of fifteen days from the date of such change.
Registrar on receipt of notice shall carry out necessary changes in the certificate of
incorporation and the memorandum.
29
S.O. 4090(E), dated 19th December, 2016

INCIDENTAL THERETO
If a company makes default in complying with any directions for rectification;
a. company shall be punishable with fine of ` 1,000 for every day during which the
default continues and
b. every officer who is in default shall be punishable with fine which shall not be
less than ` 5000 but which may extend to ` 1,00,000.
Change in the registered office [Sub-section 4, 5, and 7]
Application [sub-section 4]
The alteration of the memorandum relating to the place of the registered office
from one State to another shall not have any effect unless it is approved by the
Central Government (power delegated to Regional Director by Central
Government) 30 on an application in Form No. INC-23 along with the fee and shall
be accompanied by the following documents, namely;
a. Copy of Memorandum of Association, with proposed alterations;
b. Copy of the minutes of the general meeting at which the resolution
authorising such alteration was passed, giving details of the number of votes
cast in favour or against the resolution;
c. Copy of Board Resolution or Power of Attorney or the executed vakalatnama,
as the case may be.
d. List of creditors and debenture holders
e. Acknowledgment of service of a copy of the application with complete
annexures to the Registrar and Chief Secretary of the State Government or
Union territory where the registered office is situated at the time of filing the
application.
Advertisement in Newspapers
The Company not more than thirty days before the date of filing the above
application, shall advertise in the Form No. INC-26 in the vernacular newspaper in
the principal vernacular language in the district and in English language in an
English newspaper with wide circulation in the state in which the registered office
of the company is situated.
30
Notification S.O. 4090(E), dated 19th December, 2016

Dispose of the application by central government [sub-section 5]
The Central Government (power delegated to Regional Director by Central

Government) shall dispose of the application of change of place of the registered
office within a period of 60 days. Before passing of order, Central Government may
satisfy itself that-
a. the alteration has the consent of the creditors, debenture-holders and other
persons concerned with the company, or
b. the sufficient provision has been made by the company either for the due
discharge of all its debts and obligations, or
c. adequate security has been provided for such discharge.
Filing of the certified copy of the order with the registrar [sub-section 7]
Where an alteration of the memorandum results in the transfer of the registered
office of a company from one State to another, a certified copy of the order of the
Central Government approving the alteration shall be filed by the company with
the Registrar of each of the States in Form No. INC-28 along with the fee within
thirty days from the date of receipt of certified copy of the order, who shall register
the same.
Issue of fresh certificate of incorporation [sub-section 7]
The Registrar of the State where the registered office is being shifted to, shall issue
a fresh certificate of incorporation indicating the alteration.
Change in the object of the company [Sub-section 8 and 9]
Who can make change in object clause & How? [Sub-section 8]
Where the company has raised money from public through prospectus and has any
un-utilised amount out of the money so raised, can change the objects for which the
money so raised is to be applied only after passing a special resolution through
postal ballot and the notice in respect of the resolution for altering the objects shall
contain the following particulars, namely;
a. Total money received;
b. Total money utilized for the objects stated in the prospectus;

c. Un-utilized amount out of the money so raised through prospectus,

INCIDENTAL THERETO
d. Particulars of the proposed alteration or change in the objects;
e. Justification for the alteration or change in the objects;

f. Amount proposed to be utilised for the new objects;
g. Estimated financial impact of the proposed alteration on the earnings and cash
flow of the company;
h. Other relevant information which is necessary for the members to take an
informed decision on the proposed resolution;
i. Place from where any interested person may obtain a copy of the notice of
resolution to be passed.
Advertisement [Sub-section 8]
The advertisement giving details of each resolution to be passed for change in
objects, simultaneously to the dispatch of postal ballot notices to shareholders; shall
be:
a. Published in the newspapers (one in English and one in vernacular language)
which is in circulation at the place where the registered office of the company
is situated and
b. Hosted on the website of the company, if any.
Dissenting shareholders to change of object [Sub-section 8]
The dissenting shareholders shall be given an opportunity to exit by the
promoters and shareholders having control in accordance with regulations to be
specified by the Securities and Exchange Board of India.
Registrar to certify the registration on alteration of the objects [sub-section 9]
The Registrar shall register any alteration of the memorandum with respect to the
objects of the company and certify the registration within a period of 30 days from the
date of filing of the special resolution under clause (a) to sub-section 6 of this section.
Sub-section 10 provides that alteration made under this section (section 13) shall
have effect only after it has been registered in accordance with provisions of
section.
Sub-section 11 states any alteration of the memorandum, in the case of a company

limited by guarantee and not having a share capital, intending to give any person

a right to participate in the divisible profits of the company otherwise than as a

member, shall be void. This provision is confirming and extending provision to
Section 4(7).
13. ALTERATION OF ARTICLES [SECTION 14]

Section 14 of the Companies Act, 2013, vests companies with power to alter its
articles. A company cannot divest itself of these powers 31. Matters as to which the
memorandum is silent can be dealt with by the alteration of article. The law with
respect to alteration of articles is as follows:
ALTERATION BY SPECIAL RESOLUTION [SUB-SECTION 1]
A company may alter its articles by a special resolution, subject to the provisions
of this Act and the conditions contained in its memorandum. Alteration of articles
include alterations having the effect of conversion of a private company into a
public company or vice-versa,
Any alteration having the effect of conversion of a public company into a private
company shall not be valid unless it is approved by an order of the Central
Government on an application made within sixty days from the date of passing of
special resolution, be filed with Regional Director in e-Form No. RD-1 along with
the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014
and shall be accompanied by the following documents, namely;
a. Draft copy of Memorandum of Association and Articles of Association, with

proposed alterations;
b. Copy of the minutes of the general meeting at which the special resolution
authorising such alteration was passed together with details of votes cast in
favour and or against with names of dissenters;
c. Copy of Board resolution or Power of Attorney dated not earlier than thirty
days, as the case may be, authorising to file application for such conversion;
d. Declaration by a key managerial personnel regarding the compliance under
difference section of the Act and rules made there under;
31
Andrews vs. Gas Meter Co. (1897) 1 Ch. 161

INCIDENTAL THERETO
In case of a private company, where post alteration the articles no longer include
the restrictions and limitations which are required to be included in the articles of
a private company under this Act, then such company shall cease to be a private
company, from the date of such alteration.
FILING OF ALTERATION WITH THE REGISTRAR [SUB-SECTION 2]

Every alteration of the articles and a copy of the order of the Central Government
approving the alteration, shall be filed with the Registrar, together with a printed
copy of the altered articles, within a period of fifteen days in Form No. INC 27
along with fee, who (Registrar) shall register the same.
Sub-section 3 provides that alteration made under sub-section 1 and registered
under sub-section 2 subject to provision of this, shall be valid and have effect as if
it were originally contained in the Articles.
14. ALTERATION OF MEMORANDUM OR

ARTICLES TO BE NOTED IN EVERY COPY
[SECTION 15]
Section 15 of the Act requires that every alteration made in memorandum and
articles of a company shall be noted in every copy. Be it issued in electronic form
or otherwise; because MOA and AOA considered to be public document under
section 399.
If a company makes any default in complying with the stated provisions, the
company and every officer who is in default shall be liable to a penalty of one
thousand rupees for every copy of the articles issued without such alteration.
15. REGISTERED OFFICE OF COMPANY [SECTION 12]

A company is considered to be a separate legal entity from the members. Once a
company gets incorporated, it is required to maintain a registered office. This is a
physical office where the corporation will receive service of legal documents from
ROC or in case of a lawsuit, etc.
This address cannot be a P.O. Box but must be a physical location where someone
is present, to receive service of legal documents during normal business hours. It
could be different from a Head Office or Corporate office.

Section 12 of the Companies Act, 2013 seeks to provide for the registered office of
the companies for the communication and serving of necessary documents,
notices, letters etc. The domicile and the nationality of a company is determined by
the place of its registered officer. This is also important for determining the
jurisdiction of the court.
REGISTERED OFFICE & VERIFICATION THEREOF [SUB-SECTION 1 & 2]
As per sub-section 1, a company shall, within thirty days of its incorporation and
at all times thereafter, have a registered office capable of receiving and
acknowledging all communications and notices as may be addressed to it.
Further, sub-section 2 requires the company shall furnish to the Registrar verification
of its registered office within a period of thirty days of its incorporation.
With the respected specified IFSC public & IFSC private companies, they shall have its
registered office at the IFSC located in the approved multiservice SEZ set up under the
SEZ Act, 2005 read with SEZ Rules, 2006. 32
In case of specified IFSC public & IFSC private company word “thirty days” will be
read as “sixty days”. 33
LABELING OF COMPANY [SUB-SECTION 3]

Every company shall;
a. Paint or affix its name, and the address of its registered office, and keep
the same painted or affixed, on the outside of every office or place in which
its business is carried on, in a conspicuous position, in legible letters, and if
the characters employed are not those of the language/s in general use in
that locality, then also in the characters of that language/s.
b. Have its name engraved in legible characters on its seal, if any;
c. 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; and
d. Have its name printed on hundies, promissory notes, bills of exchange and
such other documents as may be prescribed:
32
G.S.R. 08 (E) dated 4th January, 2017
33
ibid

INCIDENTAL THERETO
Note:
Where a company has changed its name(s) during the last two years, it shall
paint or affix or print, both or all such names in case of point a as well as c above.
In case of One person company, the words ‘‘One Person Company’’ shall be
mentioned in brackets below the name of such company, wherever its name is
printed, affixed or engraved.
NOTICE OF CHANGE & VERIFICATION TO REGISTRAR [SUB-SECTION 4]
Notice of every change of the situation of the registered office after the date of
incorporation of the company, verified in the Form No. INC-22, along with fee as
prescribed shall be given to the Registrar within 30 days of the change, who shall
record the same.
In case of specified IFSC public & IFSC private company word “thirty days” will be read
as “sixty days”. 34
APPROVAL/CONFIRMATION OF CHANGE [SUB-SETION 5]
Change by passing of special resolution
The registered office of the company shall be changed only by passing of special
resolution by a company, outside the local limits of any city, town or village where
such office is situated or where it may be situated later by virtue of a special
resolution passed by the company.
Change of registered office outside the jurisdiction of registrar
Where a company changes the place of its registered office from the jurisdiction of
one Registrar to the jurisdiction of another Registrar within the same State, there
such change is to be confirmed by the Regional Director on an application made
by the company. Application shall be made in Form No. INC-23 along with fee.
In case of specified IFSC public & IFSC private company Board resolution will sufficient,
provided that such Company shall not change the place of its registered office to any
other place outside the said International Financial Services Centre. 35
34
35

COMMUNICATION AND FILING OF CONFIRMATION [SUB-SECTION 6]
The confirmation of change of registered office from jurisdiction of one registrar

to another registrar within the same state, shall be:
a. Communicated within 30 days from the date of receipt of application by

the Regional Director to the company, and
b. The company shall file the confirmation with the Registrar within a period
of 60 days of the date of confirmation who shall register the same, and
c. Certify the registration within a period of thirty days from the date of filing
of such confirmation.
The certificate so issued by registrar shall be conclusive evidence that all the
requirements of this Act with respect to change of registered office have been
complied with and the change shall take effect from the date of the certificate.
If the Registrar has reasonable cause to believe that the company is not carrying
on any business or operations, he may cause a physical verification of the registered
office of the company in such manner as may be prescribed and if any default is
found to be made in complying with the requirements of sub-section (1), he may
without prejudice to the provisions contained in this section regarding the
penalties, initiate action for the removal of the name of the company from the
register of companies under Chapter XVIII.
PENALTIES IN CASE OF DEFAULTS [SUB-SECTION 8]
If any default is made in complying with the requirements of this section, the
company and every officer who is in default shall be liable to a penalty of one
thousand rupees for every day during which the default continues but not
exceeding one lakh rupees.

INCIDENTAL THERETO
Summary of Provisions applicable in case of change of place of registered

office
Change in Place of Registered office
Within a state Within a State From One State

(from one (From one to Another
Within a city city to ROC to (Change in
another) another) Situation Clause)
Board Special Special Special

Resolution Resolution Resolution resolution
Notice to Permission Approval of

Notice to of
ROC ROC Central
(30 days) Regional Government
(30 days) Director
30/60/30 60/30
RD/Co./ROC CG/CO.
Conclusive Fresh Certificate

Evidence of Incorporation
16. COMMENCEMENT OF BUSINESS ETC.

[SECTION 10A]
CONDITIONS FOR COMMENCEMENT OF BUSINESS
A company incorporated
a. After the commencement of the Companies (Amendment) Ordinance, 2019

and
b. Having a share capital
Shall commence any business or exercise any borrowing powers only if;
a. The company has filed with the Registrar a verification of its registered
office as provided in sub-section (2) of section 12, and

b. A declaration is filed with the Registrar, by a director, within a period of 180

days of the date of incorporation of the company, in Form No. INC-20A, duly
verified by a Company Secretary or a Chartered Accountant or a Cost
Accountant, in practice, along with prescribed fee; that every subscriber to
the memorandum has paid the value of the shares agreed to be taken by
him on the date of making of such declaration
Note:
1. Section 12(2) i.e. Verification of registered office with registrar, discussed earlier
heading i.e. 15 in this chapter.
2. In the case of a company pursuing objects requiring registration or approval from
any sectoral regulators such as the Reserve Bank of India, Securities and Exchange
Board of India, etc., the registration or approval, as the case may be from such
regulator shall also be obtained and attached with the declaration.
OUTCOME WHERE CONDITIONS ARE NOT SATISFIED

Penalty
If any default is made in complying with the requirements of this section, the
penalty shall be:
Liable Quantum of penalty

Company Fifty thousand rupee
Every
officer who One thousand rupees for each day during which such default
is in continues but not exceeding an amount of one lakh rupees.
default
Declaration not filled by director within 180 days
Where no declaration has been filed by directors within a period of 180 days of the
date of incorporation with the Registrar and the Registrar has reasonable cause to
believe that the company is not carrying on any business or operations, he may
initiate action for the removal of the name of the company from the register of
companies under Chapter XVIII.
Note: Action by registrar for removal of name can be take place simultaneously
with levy of penalty.

INCIDENTAL THERETO
Example – Modern Furniture incorporated on 27th June 2022, its directors filled a
declaration regarding receipt of payment i.e. value of share (against share
subscribed by subscriber) to registrar on 30th January 2023. The company shall be
charged with penalty of ` 50,000, while penalty of its officers (officers who are in
default) shall be ` 34000 (for 34 days i.e. 4 days of December 2022 and 30 days of
January 2023).
17. CONVERSION OF COMPANIES ALREADY

REGISTERED [SECTION 18]
Section 18 of the Act, empower a company to convert itself into some other class
of company by altering its memorandum and articles of association.
Following is the law with respect to the conversion of the companies already
registered.
BY ALTERATION OF MEMORANDUM AND ARTICLES
A company of any class registered under this Act may convert itself as a company
of other class under this Act by alteration of memorandum and articles of the
company in accordance with the provisions of this Chapter.
FILE AN APPLICATION TO THE REGISTRAR
Wherever conversion to be done under section 18, Registrar on basis of an
application filled with it by company, shall after satisfying himself that the
provisions applicable for registration of companies have been complied with,
a. Close the former registration of the company; and
b. After registering the required documents, issue a certificate of incorporation in
the same manner as its first registration.
Students may also refer to: Rule 6, 7, 7A, and 20 to 22 of the Companies
(Incorporation) Rules, 2014 and 37 and 38 of the Companies (Incorporation) Rules,
2016 & Form Nos. INC-5 & INC-6 under the Companies (Incorporation) Rules, 2014
and INC-27 under the Companies (Incorporation) Rules, 2016.
NO EFFECT ON THE DEBTS, LIABILITIES ETC. INCURRED BEFORE
CONVERSION
The registration of a company under this section shall not affect any debts,
liabilities, obligations or contracts incurred or entered into, by or on behalf of the

company before conversion and such debts, liabilities, obligations and contracts
may be enforced in the manner as if such registration had not been done.
To put in more simple way, the company remains the same entity as it was before
in respect of its debts and liabilities, obligations or contracts.
18. SUBSIDIARY COMPANY NOT TO HOLD

SHARES IN ITS HOLDING COMPANY
[SECTION 19]
As per section 19 of the Act, a subsidiary company is not allowed to hold shares of
its holding company. The prohibition also extends up to the nominees of the
subsidiary company.
Consequently, any allotment or transfer of shares in a holding company to its
subsidiary shall be void. If the holding company is a guarantee or unlimited
company, not having a share capital the above restriction will apply on holding the
interest, whatever be the form of interest.
The prohibition does not apply to the following cases:

a. Where the subsidiary is concerned as a legal representative of a deceased
member of the holding company; or
b. Where the subsidiary holds such shares as a trustee; or
c. Where the subsidiary company is a shareholder even before it became a
subsidiary company of the holding company.
Note:
a. Right to vote at a meeting of the holding company only in respect of the
shares held by it as a legal representative or as a trustee
b. The prohibition does not apply to the case of a subsidiary company which
already had shares in its holding company at the commencement of the Act
c. A subsidiary can buy shares in its holding company where it is a part of a
scheme of amalgamation sanctioned by the court/tribunal. 36
36
Himachal Telematics Ltd v Himachal Futuristic Communications Ltd, (1996) 37 DRJ 476

INCIDENTAL THERETO
Example - RPIP Ltd. has invested 51% in the shares of SSP Pvt. Ltd. on 31st March
2019. SSP Pvt. Ltd. have been holding 2% equity of RPIP Ltd. since 2013. SSP Pvt.
Ltd. cannot increase its equity beyond that 2% on or after 31st March 2019.
However, it could continue to hold or reduce its initial 2% stake.
19. SERVICE OF DOCUMENTS [SECTION 20]

Section 20 of the Companies Act, 2013 read with Rule 35 (Service of Documents) of
Companies (Incorporation) Rules, 2014, provides the mode in which documents may
be served on the company, on the members and also on the registrars. Law with
respect to the service of documents is as follows-
SERVING OF DOCUMENT TO COMPANY OR AN OFFICER THEREOF
A document may be served on a company or an officer thereof by sending it to the
company or the officer at the registered office of the company by-
a. registered post, or
b. speed post, or
c. courier service, or
d. leaving it at its registered office, or
e. means of such electronic or other mode as may be prescribed
However, where securities are held with a depository, the records of the beneficial
ownership may be served by such depository on the company by means of
electronic or other mode.
SERVING OF DOCUMENT TO REGISTRAR OR MEMBERS

Save as provided in this Act or the rules made thereunder for filing of documents
with the Registrar in electronic mode, a document may be served on Registrar or
any member by sending it to him by—
a. Post, or
b. registered post, or
c. speed post, or
d. courier, or
e. by delivering at his office or address, or
f. by such electronic or other mode as may be prescribed.

However, a member may request for delivery of any document through a particular
mode, for which he shall pay such fees as may be determined by the company in
its annual general meeting.
For the purposes of this section, the term “courier” means a person or agency which
delivers the document and provides proof of its delivery.
The term “electronic transmission” means a communication that creates a record

that is capable of retention, retrieval (recovery) and review, and which may
thereafter be rendered into clearly legible tangible form. It may be made by
♦ Facsimile telecommunication (fax) or electronic mail (email), which the

company or the officer has provided from time to time for sending
communications,
♦ Posting of an electronic message board or network that the Registrar or the

member has designated for those communications, and which transmission
shall be validly delivered upon the posting, or
♦ Other means of electronic communication, in respect of which the company

or the officer has put in place reasonable systems to verify that the sender is
the person purporting to send the transmission.
Further sub-section 2 provides, in case of delivery by post, such service shall be

deemed to have been effected:
a. In the case of a notice of a meeting, at the expiration of 48 hours after the
letter containing the same is posted; and
b. In any other case, at the time at which the letter would be delivered in the
ordinary course of post.
Section 20 (2) shall apply to a Nidhi Company, subject to the modification; that
a. The document may be served only on members who hold shares of more
than ` 1,000 in face value or more than 1% of the total paid-up share capital;
whichever is less.
b. For other shareholders, document may be served by a public notice in
newspaper circulated in the district where the Registered Office of the Nidhi
is situated; and publication of the same on the notice board of the Nidhi.

INCIDENTAL THERETO
Example – Modern Furniture sent the notice of general meeting through postal
mail 48 hours after the post of letter containing such notice, shall be deemed to be
served. Hence, requirement of 21 clear days’ notice under section 101 of the Act, if
seen in this context, Modern Furniture Limited should have posted the letter
containing notice 23 days prior to meeting day (48 hours of post-delivery+21 clear
days).
20. AUTHENTICATION OF DOCUMENTS,

PROCEEDINGS AND CONTRACTS [SECTION 21]
As per section 21 of the Act:
a. A document or proceeding requiring authentication by a company or
b. Contracts made by or on behalf of a company

May be signed by:
a. Any key managerial personnel 37, or
b. An officer or employee of the company duly authorized by the Board in this

behalf.
In the case of specified IFSC public company and IFSC private company, for the
word “An officer” read as “An officer or any other person”. 38
21. EXECUTION OF BILLS OF EXCHANGE, ETC.

[SECTION 22]
Sub-section 1 provides, a bill of exchange, hundi or promissory note shall be
deemed to have been made, accepted, drawn or endorsed on behalf of a
company if made, accepted, drawn, or endorsed in the name of, or on behalf of
or on account of, the company by any person acting under its authority.
Authority can be either express or implied.
37
Who all are included in key managerial person under section 2 (51) already discussed in
chapter 1 of this module
38

Formal deeds can be executed only through a power of attorney. Therefore sub-
section 2 and 3 together provides;
a. A company may, by writing under
 Its common seal, if any,
 Where in case a company does not have a common seal, then

authorized by 2 directors or by a director and the Company Secretary,
wherever the company has appointed a Company Secretary.
b. Authorize any person,
c. Either generally or in respect of any specified matters,
d. As its attorney to execute other deeds on its behalf
e. In any place either in or outside India.
f. Deed signed by such an attorney on behalf of the company and under his
seal shall bind the company.
Summary of sub-section 2
Co. having
common seal
Yes No
*In writing authorise any person Authorisation

(generally or in respect of any shall be made
specified matters) as attorney by:
In India, or 2 directors, or Where the Co. has a

Company Secretary
outside India.
A director
alongwith
Company Secretary

INCIDENTAL THERETO
Note: It can be observed from above that a company may or may not have a
common seal. If company decides to have a common seal then it has to affix the
same for specified matters, execution of deeds on behalf of the company.
The seal is a method of making a physical impression upon the documents of the
company, of its name, etc.
Section 22 comes into play when a person wants to enforce obligations against a
company arising out of a contract and the company denies the contract or disputes
its liability. The section cannot be used where the proceeding is by the company.
SUMMARY
♦ Once an association becomes incorporated it acquires a legal status, it
becomes a legal entity in its own right, separate from the individual
members. It will have perpetual succession i.e. not affected by the death,
insanity, or insolvency of an individual member.
♦ Earlier, the certificate of incorporation considered as conclusive proof, but

as per the Companies Act, 2013, certificate of Incorporation is not conclusive
proof of everything prior to incorporation being in order.
♦ CIN is a 21 alpha-numeric digit based unique identification number,

comprising data sections/elements that reveals the basis aspects about
company
♦ The memorandum of association (MOA) is the document that sets up the

company and the articles of association (AOA) set out how the company is
run, governed and owned. These documents can be altered.
♦ As per Doctrine of Ultra Vires, acts outside the powers conferred under MOA
are ultra-vires. Such acts and resulting agreements are void.
♦ Doctrine of Constructive Notice put onus on those who delas with company
to be aware of what is stated in MOA and AOA, while Doctrine of Indoor
Management protects outsider as an exception to earlier specified doctrine.
♦ A company of any class may convert itself as a company of other class by

alteration of its MOA and AOA.
♦ Certain relaxations are provided in case of specified IFSC companies

working in or from International Financial Services Centre, regarding
provisions contained in chapter II of the Act.

TEST YOUR KNOWLEDGE

Multiple Choice Questions
1. Entrenchment enhance the protection. Modern Furniture Limited, an existing
private company willing to insert the provisions for entrenchment; it
(a) Can amend the article by passing an ordinary resolution

(b) Can amend the article by passing a special resolution
(c) Can amend the article agreed by all the members
(d) Can’t amend article to made the provisions for entrenchment
2. Today, it’s May 2023. Mr. Nilanjan Chattopadhyay a 24 years old Indian youngster,
who returned back to India in January month of 2023 after completing his
education in bio-nutrient and willing to form an OPC; but not sure about the
requirements or pre-conditions regarding eligibility. He read some articles on
provisions related to OPC and concluded;
(i) OPC can be formed by Indian Citizen only
(ii) He can’t form OPC because in immediate previous year he was not resident
in India
(a) Both the conclusions are valid

(b) None of the conclusion is valid
(c) First conclusion is invalid
(d) Second conclusion is invalid
3. In case of an application for reservation of name or for change of its name by an
existing company, the Registrar may reserve the name for a period of …………….
from the date of approval
(a) 90 days
(b) 60 days
(c) 30 days
(d) 20 days

INCIDENTAL THERETO
4. Modern Furniture incorporated on 30th June 2022, its directors filled a declaration
under section 10A (1)(a) regarding receipt of payment i.e. value of share (against
share subscribed by subscriber) to registrar on 18th April 2023. The company and
its officers (officers who are in default) shall be charged with penalty of:
(a) ` 1,11,000 and ` 1,11,000 respectively
(b) ` 50,000 and ` 1,11,000 respectively
(c) ` 1,11,000 and ` 50,000 respectively
(d) ` 50,000 and ` 1,00,000 respectively
5. I.T.C limited changed its name to ITC limited. Company and officers thereat made
default by failing to make alteration in every issued copy of memorandums and
articles. In this context you are required to pick incorrect statements out of
followings
(i) Alternation shall be made to every copy of MOA/AOA because these are
considered as public document.
(ii) Alternation shall be made to every copy be it in electronic form or otherwise.
(iii) Penalty shall be rupees one thousand for every copy of the articles issued
without such alteration.
(a) (ii) only
(b) (iii) only
(c) (ii) and (iii) only
(d) None of (i), (ii) and (iii)
1. Yadav dairy products Private limited has registered its articles along with
memorandum at the time of registration of company in December, 2019. Now
directors of the company are of the view that provisions of articles regarding
forfeiture of shares should not be changed except by a resolution of 90% majority.
While as per section 14 of the Companies Act, 2013 articles may be changed by
passing a special resolution only. One of the directors said that they cannot make
a provision against the Companies Act. You are required to advise the company
on this matter.

2. A group of individuals intend to form a club namely 'Budding Pilots Flying Club'
as limited liability company to impart class room teaching and aircraft flight
training to trainee pilots. It was decided to form a limited liability company for
charitable purpose under Section 8 of the Companies Act, 2013 for a period of
ten years and thereafter the club will be dissolved and the surplus of assets over
the liabilities, if any, will be distributed amongst the members as a usual
procedure allowed under the Companies Act.
Examine the feasibility of the proposal and advise the promoters considering
the provisions of the Companies Act, 2013.
3. Alfa school started imparting education on 1st April, 2010, with the sole
objective of providing education to children of weaker society either free of cost
or at a very nominal fee depending upon the financial condition of their
parents. However, on 30th March 2020, it came to the knowledge of the Central
Government that the said school was operating by violating the objects of its
objective clause due to which it was granted the status of a section 8 company
under the Companies Act, 2013. Describe what powers can be exercised by the
Central Government against the Alfa School, in such a case?
4. XY Ltd. has its registered office at Mumbai in the State of Maharashtra. For
better administrative conveniences the company wants to shift its registered
office from Mumbai to Pune (within the State of Maharashtra, but from Mumbai
ROC to Pune ROC). What formalities the company has to comply with under
the provisions of the Companies Act, 2013 for shifting its registered office as
stated above? Explain.
5. Anushka security equipments limited is a manufacturer of CCTV cameras. It has
raised ` 100 crores through public issue of its equity shares for starting one more
unit of CCTV camera manufacturing. It has utilized 10 crores rupees and then it
realized that its existing business has no potential for expansion because
government has reduced customs duty on import of CCTV camera. Hence imported
cameras from China are cheaper than its own manufacturing. Now it wants to
utilize remaining amount in mobile app development business by adding a new
object in its memorandum of association.
Does the Companies Act allow such change of object? If not, then what advise
will you give to company. If yes, then give steps to be followed.

INCIDENTAL THERETO
6. The object clause of the Memorandum of Vivek Industries Limited., empowers

it to carry on real-estate business and any other business that is allied to it.
Due to a downward trend in real-estate business, the management of the
company has decided to take up the business of Food processing activity. The
company wants to alter its Memorandum, so as to include the Food Processing
Business in its objects clause. Examine whether the company can make such
change as per the provisions of the Companies Act, 2013?
7. The persons (not being members) dealing with the company are always
protected by the doctrine of indoor management. Explain. Also, explain when
doctrine of Constructive Notice will apply.
8. Manglu and friends got registered a company in the name of Taxmann advisory
private limited. Taxmann is a registered trademark. After 5 years when the
owner of trademark came to know about the same, it filed an application with
relevant authority. Can the company be compelled to change its name by the
owner of trademark? Can the owner of registered trademark request the
company and then company changes its name at its discretion?
9. Explain in the light of the provisions of the Companies Act, 2013, the
circumstances under which a subsidiary company can become a member of its
holding company.
10. Shri Laxmi Electricals Ltd. (S) is a company in which Hanuman power suppliers
Limited (H) is holding 60% of its paid up share capital. One of the shareholder
of H made a charitable trust and donated his 10% shares in H and ` 50 crores
to the trust. He appoint S as the trustee. All the assets of the trust are held in
the name of S. Can a subsidiary hold shares in its holding company in this way?
11. Explain the provisions of the Companies Act, 2013 relating to the ‘Service of
Documents’ on a company and the members of the company.
12. Ashok, a director of Gama Electricals Ltd. gave in writing to the company that
the notice for any general meeting and of the Board of Directors' meeting be
sent to him only by registered post at his residential address at Kanpur for
which he deposited sufficient money. The company sent notice to him by
ordinary mail under certificate of posting. Ashok did not receive this notice and
could not attend the meeting and contended that the notice was improper.

Decide:
(i) Whether the contention of Ashok is valid.

(ii) Will your answer be the same if Ashok remains in U.S.A. for one month
during the notice of the meeting and the meeting held?
13. Parag Constructions Limited is a leading infrastructure company. One of the directors
of the company Mr. Parag has been signing all construction contracts on behalf of
company for many years. All the parties who ever deal with the company know Mr.
Parag very well. Company has got a very important construction contract from a
renowned software company. Parag constructions will do construction for this site in
partnership with a local contractor Firozbhai. Mr. Parag signed partnership deed with
Firozbhai on behalf of company because he has an implied authority. Later in a
dispute company denied to accept liability as a partner. Can the company deny its
liability as a partner?
ANSWERS
1. (c) Can amend the article agreed by all the members
2. (d) Second conclusion is invalid

3. (b) 60 days
4. (d) ` 50,000 and ` 1,00,000 respectively
5. (d) None of (i), (ii) and (iii)

1. As per section 5 of the Companies Act, 2013 the article may contain provisions
for entrenchment to the effect that specified provisions of the articles may be
altered only if more restrictive conditions than a special resolution, are met.
The provisions for entrenchment shall only be made either on formation of a
company, or by an amendment in the articles agreed to by all the members
of the company in the case of a private company and by a special resolution
in the case of a public company.

INCIDENTAL THERETO
Where the articles contain provisions for entrenchment, whether made on

formation or by amendment, the company shall give notice to the Registrar
of such provisions in prescribed manner.
In the present case, Yadav dairy products Private Limited is a private company
and wants to protect provisions of articles regarding forfeiture of shares. It
means it wants to make entrenchment of articles, which is allowed. But the
company will have to pass a resolution taking permission of all the members
and it should also give notice to ROC regarding entrenchment of articles.
2. According to section 8(1) of the Companies Act, 2013, where it is proved to
the satisfaction of the Central Government that a person or an association of
persons proposed to be registered under this Act as a limited company—
(a) has in its objects the promotion of commerce, art, science, sports,
education, research, social welfare, religion, charity, protection of
environment or any such other object;
(b) intends to apply its profits, if any, or other income in promoting its
objects; and
(c) intends to prohibit the payment of any dividend to its members;
the Central Government may, by issue of licence, allow that person or
association of persons to be registered as a limited liability company.
In the instant case, the decision of the group of individuals to form a limited
liability company for charitable purpose under section 8 for a period of ten
years and thereafter to dissolve the club and to distribute the surplus of assets
over the liabilities, if any, amongst the members will not hold good, since
there is a restriction as pointed out in point (b) above regarding application
of its profits or other income only in promoting its objects.
Further, there is restriction in the application of the surplus assets of such a
company in the event of winding up or dissolution of the company as
provided in sub-section (9) of Section 8 of the Companies Act, 2013.
Therefore, the proposal is not feasible.
3. Section 8 of the Companies Act, 2013 deals with the formation of companies
which are formed to promote the charitable objects of commerce, art, science,
education, sports etc. Such company intends to apply its profit in promoting
its objects. Section 8 companies are registered by the Registrar only when a

license is issued by the Central Government to them. Since, Alfa School was
a Section 8 company and it had started violating the objects of its objective
clause, hence in such a situation the following powers can be exercised by
the Central Government:
(i) The Central Government may by order revoke the licence of the
company where the company contravenes any of the requirements or
the conditions of this sections subject to which a licence is issued or
where the affairs of the company are conducted fraudulently, or
violative of the objects of the company or prejudicial to public interest,
and on revocation the Registrar shall put ‘Limited’ or ‘Private Limited’
against the company’s name in the register. But before such revocation,
the Central Government must give it a written notice of its intention to
revoke the licence and opportunity to be heard in the matter.
(ii) Where a licence is revoked, the Central Government may, by order, if it

is satisfied that it is essential in the public interest, direct that the
company be wound up under this Act or amalgamated with another
company registered under this section. However, no such order shall be
made unless the company is given a reasonable opportunity of being
heard.
(iii) Where a licence is revoked and where the Central Government is

satisfied that it is essential in the public interest that the company
registered under this section should be amalgamated with another
company registered under this section and having similar objects, then,
notwithstanding anything to the contrary contained in this Act, the
Central Government may, by order, provide for such amalgamation to
form a single company with such constitution, properties, powers,
rights, interest, authorities and privileges and with such liabilities, duties
and obligations as may be specified in the order.
4. The Companies Act, 2013 under section 13 provides for the process of altering
the Memorandum of a company. Since the location or Registered Office clause
in the Memorandum only names the state in which its registered office is
situated, a change in address from Mumbai to Pune, does not result in the
alteration of the Memorandum and hence the provisions of section 13 (and its
sub sections) do not apply in this case.

INCIDENTAL THERETO
However, under section 12 (5) of the Act which deals with the registered office
of company, the change in registered office from one town or city to another
in the same state, must be approved by a special resolution of the company.
Further, registered office is shifted from one ROC to another, therefore
company will have to seek approval of Regional director.
5. According to section 13 of the Companies Act, 2013 a company, which has
raised money from public through prospectus and still has any unutilised
amount out of the money so raised, shall not change its objects for which it
raised the money through prospectus unless a special resolution is passed by
the company and—
(i) the details in respect of such resolution shall also be published in the
newspapers (one in English and one in vernacular language) which is in
circulation at the place where the registered office of the company is
situated and shall also be placed on the website of the company, if any,
indicating therein the justification for such change;
(ii) the dissenting shareholders shall be given an opportunity to exit by the
promoters and shareholders having control in accordance with SEBI
regulations.
Company will have to file copy of special resolution with ROC and he will
certify the registration within a period of thirty days. Alteration will be
effective only after this certificate by ROC.
Looking at the above provision we can say that company can add the object
of mobile app development in its memorandum and divert public money into
that business. But for that it will have to comply with above requirements.
6. Alteration of Objects Clause of Memorandum
The Companies Act, 2013 has made alteration of the memorandum simpler
and more flexible. Under section 13(1) of the Act, a company may, by a special
resolution after complying with the procedure specified in this section, alter
the provisions of its Memorandum.
In the case of alteration to the objects clause, section 13(6) requires the filing
of the Special Resolution by the company with the Registrar. Section 13 (9)
states that the Registrar shall register any alteration to the Memorandum with
respect to the objects of the company and certify the registration within a

period of thirty days from the date of filing of the special resolution by the
company.
Section 13 (10) further stipulates that no alteration in the Memorandum shall
take effect unless it has been registered with the Registrar as above.
Hence, the Companies Act, 2013 permits any alteration to the objects clause
with ease. Vivek Industries Limited can make the required changes in the
object clause of its Memorandum of Association.
7. Doctrine of Indoor Management
According to this doctrine, persons dealing with the company need not
inquire whether internal proceedings relating to the contract are followed
correctly, once they are satisfied that the transaction is in accordance with
the memorandum and articles of association.
Stakeholders need not enquire whether the necessary meeting was convened
and held properly or whether necessary resolution was passed properly. They
are entitled to take it for granted that the company had gone through all
these proceedings in a regular manner.
The doctrine helps to protect external members from the company and states
that the people are entitled to presume that internal proceedings are as per
documents submitted with the Registrar of Companies.
The doctrine of indoor management is opposite to the doctrine of
constructive notice. Whereas the doctrine of constructive notice protects a
company against outsiders, the doctrine of indoor management protects
outsiders against the actions of a company.
This doctrine also is a safeguard against the possibility of abusing the
doctrine of constructive notice.
Exceptions to Doctrine of Indoor Management (Applicability of doctrine

of constructive notice)
(i) Knowledge of irregularity: In case an ‘outsider’ has actual knowledge
of irregularity within the company, the benefit under the rule of indoor
management would no longer be available. In fact, he/she may well be
considered part of the irregularity.

INCIDENTAL THERETO
(ii) Negligence: If with a minimum of effort, the irregularities within a

company could be discovered, the benefit of the rule of indoor
management would not apply.
The protection of the rule is also not available where the circumstances
surrounding the contract are so suspicious as to invite inquiry, and the
outsider dealing with the company does not make proper inquiry.
(iii) Forgery: The rule does not apply where a person relies upon a
document that turns out to be forged since nothing can validate
forgery. A company can never be held bound for forgeries committed
by its officers.
8. According to section 16 of the Companies Act, 2013 if a company is registered
by a name which,—
♦ in the opinion of the Central Government, is identical with the name by

which a company had been previously registered, it may direct the
company to change its name. Then the company shall by passing an
ordinary resolution change its name within 3 months.
♦ is identical with a registered trade mark and owner of that trade mark apply
to the Central Government within three years of incorporation of
registration of the company, it may direct the company to change its name.
Then the company shall change its name by passing an ordinary resolution
within 6 months.
Company shall give notice to ROC along with the order of Central
Government within 15 days of change. In case of default company and
defaulting officer are punishable.
In the given case, owner of registered trade-mark is filing objection after 5
years of registration of company with a wrong name. While it should have filed
the same within 3 years. Therefore, the company cannot be compelled to
change its name.
As per section 13, company can anytime change its name by passing a special
resolution and taking approval of Central Government. Therefore, if owner of
registered trademark request the company for change of its name and the
company accepts the same then it can change its name voluntarily by
following the provisions of section 13.

9. In accordance with the provisions of Section 19 of the Companies Act, 2013,

a subsidiary company cannot either by itself or through its nominees hold
any shares in its holding company and no holding company shall allot or
transfer its shares to any subsidiary companies. Any such allotment or transfer
of shares in a company to its subsidiary is void. The section however does not
apply where:
(1) the subsidiary company holds shares in its holding company as the legal
representative of a deceased member of the holding company,
(2) the subsidiary company holds such shares as a trustee, or
(3) the subsidiary company was a shareholder in the holding company even
before it became its subsidiary.
10. According to section 19 of the Companies Act, 2013 a company shall not hold
any shares in its holding company either by itself or through its nominees.
Also, holding company shall not allot or transfer its shares to any of its
subsidiary companies and any such allotment or transfer of shares of a
company to its subsidiary company shall be void.
Following are the exceptions to the above rule;

(a) Where the subsidiary company holds such shares as the legal
representative of a deceased member of the holding company; or
(b) Where the subsidiary company holds such shares as a trustee; or

(c) Where the subsidiary company is a shareholder even before it became
a subsidiary company of the holding company, but in this case, it will
not have a right to vote in the meeting of holding company.
In the given case, one of the shareholders of holding company has transferred
his shares in the holding company to a trust where the shares will be held by
subsidiary company. It means now subsidiary will hold shares in the holding
company. But it will hold shares in the capacity of a trustee. Therefore, we can
conclude that in the given situation S can hold shares in H.
11. Under section 20 of the Companies Act, 2013 a document may be served on
a company or an officer thereof by sending it to the company or the officer
at the registered office of the company by registered post or by speed post
or by courier service or by leaving it at its registered office or by means of

INCIDENTAL THERETO
such electronic or other mode as may be prescribed. However, in case where

securities are held with a depository, the records of the beneficial ownership
may be served by such depository on the company by means of electronic or
other mode.
Under section 20 (2), save as provided in the Act or the rule thereunder for
filing of documents with the registrar in electronic mode, a document may be
served on Registrar or any member by sending it to him by post or by
registered post or by speed post or by courier or by delivering at his office or
address, or by such electronic or other mode as may be prescribed. However,
a member may request for delivery of any document through a particular
mode, for which he shall pay such fees as may be determined by the company
in its annual general meeting.
12. According to section 20(2) of the Companies Act, 2013, a document may be
served on Registrar or any member by sending it to him by post or by
registered post or by speed post or by courier or by delivering at his office or
address, or by such electronic or other mode as may be prescribed.
Provided that a member may request for delivery of any document through
a particular mode, for which he shall pay such fees as may be determined by
the company in its annual general meeting.
Thus, if a member wants the notice to be served on him only by registered
post at his residential address at Kanpur for which he has deposited sufficient
money, the notice must be served accordingly, otherwise service will not be
deemed to have been effected.
Accordingly, the questions as asked may be answered as under:
(i) The contention of Ashok shall be tenable, for the reason that the notice
was not properly served.
(ii) In the given circumstances, the company is bound to serve a valid notice
to Ashok by registered post at his residential address at Kanpur and not
outside India.
13. As per section 22 of the Companies Act, 2013 a company may authorise any
person as its attorney to execute deeds on its behalf in any place either in or
outside India. But common seal should be affixed on his authority letter or
the authority letter should be signed by two directors of the company or it

should be signed by one director and secretary. This authority may be either
general for any deeds or it may be for any specific deed.
A deed signed by such an attorney on behalf of the company and under his
seal shall bind the company as if it were made under its common seal.
In the present case company has not neither given any written authority not
affixed common seal of the authority letter.
It means that Mr. Parag is not legally entitled to execute deeds on behalf of
the company. Therefore, deeds executed by him are not binding on the
company. Therefore, company can deny its liability as a partner.

CHAPTER
3
PROSPECTUS
AND ALLOTMENT
OF SECURITIES
LEARNING OUTCOMES

♦ Define prospectus
♦ Understand various types of prospectus
♦ Explain the procedure for issue of prospectus and other
related concepts
♦ Know about the criminal and civil liability for mis- statements
in prospectus and punishment for fraudulently inducing
persons to invest money
♦ Understand the procedure for allotment of securities by
companies
♦ Know the procedure of private placement of securities

♦
CHAPTER OVERVIEW
This chapter explains the provisions of Chapter III of the Companies Act, 2013 1
(hereinafter also referred to as “the Act” or “this Act”), consisting of Sections 23 to
42 dealing with the prospectus and allotment of securities. Due to the inherent
differences between the nature of public and private companies in addition to
restrictions on the later, Chapter III of the Act contained the provisions for issue
of securities under two distinct headings (parts):
Part I - Public offer (Section 23-41);
Part II - Private placement (Section 42).
The provisions contained in Part I and part II are supplemented by the Companies
(Prospectus and Allotment of Securities) Rules, 2014.
Following diagram depicts the arrangement of relevant sections:
Issue of Prospectus and related

matters [Sec. 23, 26, 29, 31, 32,
25, 28, 27 & 40]
Allotment of securities [Sec. 39]

Prospectus and Allotment of
securities [Sec. 23-42]
Penalties [Sec. 34, 35, 36, 37 &

447*]
In a Public In a Private
company company
Private Placement [Sec. 42]
* Section 447 contains provisions relating to ‘punishment for fraud’.
1
Act 18 of 2013

PROSPECTUS AND ALLOTMENT OF SECURITIES 3.3
1. INTRODUCTION
Chapter III Consists of sections 23 to 42 as well as the Companies
(Prospectus and Allotment of Securities) Rules, 2014.
One of the advantages that a company has over other forms of business is its
ability to raise capital, either from the public at large or from a set of identified
persons. When the capital is raised from the public at large, it is done through a
‘Public Offer’ and when it is raised from a selected group of identified persons it
is carried out through a ‘Private Placement’ of securities. Where the capital is
raised from the public at large through ‘Public Offer’, an advertisement shall be
issued in accordance with applicable provisions to protect the prospective
investors from fraud. Securities are allotted against those applications that are
received in full and in accordance with the advertisement issued. Such securities
may be listed on an appropriate segment of a recognised stock exchange.
This chapter will explain the provisions relating to raising of capital i.e. issue of
prospectus, allotment of securities, and other matters incidental thereto.
2. PUBLIC OFFER AND PRIVATE PLACEMENT

[SECTION 23]
As per Section 23 (1), a public company may issue securities;
a. To public through prospectus (herein referred to as “public offer”) by
complying with the provisions specified in Section 23 to Section 41 of the
Act; or
b. Through private placement by complying with the provisions specified in
section 42 of the Act; or
c. Through a rights issue or a bonus issue in accordance with the provisions of
the Act and in case of a listed company or a company which intends to get
its securities listed also with the provisions of the Securities and Exchange
Board of India Act, 1992 2 and the rules and regulations made thereunder.
2
Act 15 of 1992

Public offer includes initial public offer (IPO) or further public offer (FPO) of
securities to the public by a company, or an offer for sale of securities (OFS) to the
public by an existing shareholder, through issue of a prospectus.
Students are advised to note; that Further Public Offer also known as Fellow-on
Public Offer, whereas OFS is sometimes called deemed Public Offer.
As per Section 23(2), a private company may issue securities;

a. By way of rights issue or bonus issue in accordance with the provisions of
the Act; or
b. Through private placement by complying with the provisions specified in
Summary of modes (for issue of securities)
Mode of Issue Public Company Private Company

Public Offer (including IPO, FPO or OFS) Yes No
Private Placement Yes Yes
Rights issue / Bonus Issue Yes Yes
Compliance with SEBI rules & Yes* No
regulations
*For a listed company or a company proposed to be listed.
Various modes of issue of securities available to a public company or a private
company are depicted in the following diagram for better understanding;
Issue of
securities
Public Private
Company Company
Prospectus/ Private Bonus Private

Right Issue
Public Offer Placement Issue Placement
IPO
Right Issue
FPO
Bonus
OFS Issue

Security is a wider term, not restricted to equity, preference, or debenture.

Meaning of Securities
As per section 2 (81), the term ‘securities’ means the securities as defined in
clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 3. The
definition given thereunder provides, “Securities” include;
(i) Shares, scrips, stocks, bonds, debentures, debenture stock or other
marketable securities of a like nature in or of any incorporated company or
other body corporate;
(ia) Derivative;
(ib) Units or any other instrument issued by any collective investment scheme to
the investors in such schemes;
(ic) Security receipt as defined in clause (zg) of section 2 of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 4.
(id) Units or any other such instrument issued to the investors under any mutual
fund scheme.
Explanation - For the removal of doubts, it is hereby declared that
“Securities” shall not include any unit linked insurance policy or scrips or any
such instrument or unit, by whatever name called, which provides a
combined benefit risk on the life of the persons and investment by such
persons and issued by an insurer referred to in clause (9) of section 2 of the
Insurance Act, 1938 5.
(ie) Any certificate or instrument (by whatever name called), issued to an investor
by any issuer being a special purpose distinct entity which possesses any
debt or receivable, including mortgage debt, assigned to such entity, and
acknowledging beneficial interest of such investor in such debt or receivable,
including mortgage debt, as the case may be;
(ii) Government securities;
(iia) Such other instruments as may be declared by the Central Government to
be securities; and
(iii) Rights or interests in securities.
3
Act 42 of 1956
4
Act 54 of 2002
5
Act 4 of 1938

To bring ease to doing business for corporates, Sub-section 3 and 4 to section

23 of the Act inserted vide, the Companies (Amendment) Act, 2020 6 (enforced
w.e.f 28th September 2020)
Prior to Amendments of 2020, Indian companies can access the overseas equity
markets only through depository receipts (e.g. American Depository Receipts
(ADRs) or Global Depository Receipts (GDRs) or by listing their debt securities
(such as, foreign currency convertible bonds, masala bonds, etc.) on foreign
markets.
Since more and more businesses are going global & capital raised from across the
border is cost effective, hence section 23(3) is inserted to open ways of overseas
direct listing for notified class of public companies by allowing them to issue
notified securities for the purpose of listing on permitted stock exchanges in
permissible foreign jurisdictions or such other jurisdictions as may be prescribed.
Note: How overseas direct listing is different from ADRs/GRDs?

In a direct listing, a domestic company can enlist itself with the stock exchanges
of other countries without an intermediary. Unlike American Depositary Receipts
(ADRs) and Global Depositary Receipts (GDRs), the Indian company can directly
offer their shares in foreign markets instead of giving them to a foreign depository
bank. Direct listing excludes intermediaries, decreases the overall transaction cost,
and increases transparency.
Section 23(4) of the Act empowers the Central Government to exempt any class
or classes of public companies from complying with the provisions of Chapter III
(Prospectus and Allotment of Securities), Chapter IV (Share Capital and
Debentures), section 89 (Declaration in respect of a beneficial interest in any
share), section 90 (Register of significant beneficial owners in a company) or
section 127 (Punishment for failure to distribute dividends) of the Act, by issuing
notification.
Illustration (MCQ)
Which of following shall be considered as securities for purpose of section 23 of the
Act;
(i) Unit linked insurance policy
6
Act 29 of 2020

(ii) Actionable claim regarding mortgaged debt
(iii) Securities issued by National Asset Reconstruction Ltd

Options
(a) (iii) only
(b) Both (i) and (iii) only

(c) Both (ii) and (iii) only
(d) None of the (i), (ii), and (iii)
Answer – (c) (Refer section 2(h) of the Securities Contracts (Regulation) Act, 1956 7)
3. REGULATION OF ISSUE AND TRANSFER OF

SECURITIES ETC. [SECTION 24]
Securities and Exchange Board of India is empower to administer those provisions
under chapter III and IV of the Act, which pertains to issue & transfer of securities
and non-payment of dividend; by listed companies or those companies which
intend to get their securities listed on any recognised stock exchange in India,
by making regulations in this behalf.
Additional Reading
Being capital market regulator, the power is conferred upon Securities and
Exchange Board of India under section 11, 11A, 11B and 11D of the Securities and
Exchange Board of India Act 1992 8
All other matters (including matters relating to prospectus, return of allotment,

redemption of preference shares) specifically provided in this Act, shall be administered
by the Central Government, Tribunal or the Registrar, as the case may be.
Statement – The powers to administer the matters pertaining to redemption of preference

share by listed company vested with the Securities and Exchange Board of India.
Answer – False (Refer Section 24(1)(a)
7
Act 42 of 1956
8
Act 15 of 1992

4. PROSPECTUS
Meaning
As per the definition given in Section 2 (70) of the Act, Prospectus means any
document described or issued as a prospectus, and includes a red herring
prospectus referred to in section 32, or shelf prospectus referred to in section
31, or any notice, circular, advertisement or other document inviting offers
from the public for the subscription or purchase of any securities of a body
corporate.
The definition of prospectus has two limbs (means part and includes part) with
four elements in totality, these four constituents can be appreciated though
diagram presented below:
Prospectus
means includes
Any document Any notice, circular,

Shelf Red herring
described or advertisement or other
prospectus prospectus
issued as a document inviting
(section 31) (section 32)
prospectus offers from the public
Out of four constituents of prospectus definition, first three are quite clear; but
the fourth one i.e. document inviting offer from the public (considered as
deemed prospectus or prospectus by implication) need to be decoded further
that too in context to section 25 and landmark judicial pronouncements
(elaborated later).
Other elements are also explained/elaborated at relevant place in this chapter.
DEEMED PROSPECTUS [SECTION 25] - THE DOCUMENTS CONTAINING

OFFER OF SECURITIES FOR SALE
Deemed Prospectus
Sub-section 1 provides, where a company allots or agrees to allot any of its
securities with a view that those securities (all or any part thereof) being offered

for sale to the public, any document by which the offer is made; shall deemed
to be a prospectus (issued by the company) for all purposes.
All the enactments and rules of law containing provisions pertaining to prospectus,
matters to be stated, liability for misstatement shall apply to such deemed
prospectus; subject to section 25(3) and 25(4).
The purpose of deeming provision is to protect gullible investors from various

fraudulent practices.
Presumption of view (intent to offer securities for sale to public) under sub-
section 1
As per sub-section 2, the allotment is presumed to have been made with a view
of offering them to the public where either of following conditions fulfilled;
a. Securities are offered to the public within six months of allotment, or
b. Where the full consideration has not been received by the company at the
date of offer to the public.
It means, in case if any of above two conditions met; then issuing document shall
deemed to be Prospectus under sub-section 1.
Sub-section 1 and 2 to section 25 are not exhaustive in nature, there may be

certain other situations when issuing document may construe as deemed
prospectus.
SEBI v Kunnamkulam Paper Mills Ltd 9
Where a rights issue is made to existing members with a right to renounce in
favour of others, if the number of such others exceeds fifty, it also becomes a
deemed prospectus.
Requirements in case of Deemed Prospectus

Matters to be stated additionally
As per Sub-section 3, following matters need to be stated (in the deemed
prospectus i.e. the document through which offer of securities to public is made
under sub-section 1) in addition to those required under section 26;
a. A statement of the net amount received or to be received as consideration
for the securities to which the offer relates.
9
(2013)178 Comp Cas 371 (Ker)

b. The time and place at which the underlying contract for allotment may be
inspected.
c. The persons making the offer were named in the prospectus as directors
of the company.
Signing of deemed prospectus (on behalf of company)
Further, as per Sub-section 4, it is sufficient, if the document (deemed
prospectus i.e. through which offer of securities to public is made under sub-
section 1) on behalf of the company is signed by its two directors.
Statement – The matters specified under section 25(3) need to be stated in substitution
of matters stated under section 26.
Answer – False [Section 25(3) provides three matters that need to be stated in
addition to matters required to be stated in prospectus under section 26.]
Additional Reading – For better understanding only

Since the provisions of the Act relating to prospectus and the penal provisions are
attracted only when the prospectus (including deemed prospectus) has been
issued. "Issued" means issued to the public.
Hence In context of ‘Invitation to Public’ ‘Inviting offer from the Public’ or ‘Offer
of securities for sale to Public’ two valid questions arise here:
1. What constitute as ‘Public’? Does only ‘Public at large’ constitute as Public?
The term public is not restricted to the public at large. It includes any section of
the public, it is immaterial howsoever such section is selected.
Public connotes persons not personally known to the promoter as distinguished
from his own friends, relatives, connections and acquaintances.
Re, South of England Natural Gas and Petroleum Co. Ltd 10
Facts – 3000 copies of a document which was offered for subscription of shares in
a company and which was headed “For Private Circulation only,” circulated to the
members of certain number of gas companies only.
Legal Question – Was this a prospectus? Should it contain the particulars required
by the Act?
10
(1911) 1 Ch. 573 | 104 LT 378

Decision – It was decided that though the offer was only to limited class, it was
not less than an offer to the public in any sense, because those persons from
limited class were nonetheless the public. Hence, the distribution of a document
entitled, “For Private Circulation only” offering the company shares was an offer to
the public and their document was a prospectus. Therefore, it must contain the
particulars required by the Act.
2. Whether a single private communication tantamount to issue; can it be
construe to a prospectus to attract the provisions of the Act?
The term "issue" is not satisfied by a single private communication. There must
be some measure of publicity, however modest. A private communication is not
thus open and does not construe to be a prospectus, hence not attracting the
provisions of the Act.
Nash Vs Lynde 11
Facts – Nash applied for certain shares in a company on the basis of a document
sent to him by Lynde, the managing director of the company. The document was
marked ‘strictly private and confidential’. The document did not contain all the
material facts required by the Act to be disclosed. Nash filed a suit for
compensation for loss suffered by him by reason of the Omissions.
Decision – Suit was dismissed.
Viscount Summer’s landmark dictum in this case is worth to consider here as

basis of above answer. “The public in the definition is of course a general word, no
particular number are prescribed. Anything from two to infinity may serve, perhaps
even one if he is intended to be the first of a series of subscribers but made further
proceedings needless by himself subscribing the whole. The point is that the offer
is such as to be opened to anyone who brings his money and applies in due from,
whether the prospectus was addressed to him on behalf of the company or not. A
private communication is not thus open and does not construe to be a
prospectus.”
Illustration (Q&A)
Company's prospectus was given to a solicitor of the company and he forwarded it
to one of his clients despite it was marked strictly private, who applied for share
11
(1929) AC 158 | 140 LT 146 (HL)

based upon same. Later filed suit for damages. Will this communication amount to
an issue to the public and whether the provisions of the Act are attracted?
Answer - No, this did not amount to an issue to the public and accordingly the
provisions of the Act relating to liability for omissions, etc. not attracted here.
(Refer Nash Vs Lynde 12)
MATTERS TO BE STATED IN PROSPECTUS [SECTION 26] – CONTENTS &

REQUIREMENTS AS TO PROSPECTUS
Requirements as regards to date, sign, and contents to be included [Sub-
section 1]
Prospectus shall be dated and signed and shall state such information and set
out such reports on financial information as may be specified by the Securities
and Exchange Board of India (SEBI) in consultation with the Central Government.
Proviso to sub-section 1 says the regulations made by SEBI in respect of such
financial information or reports on financial information shall apply until the SEBI
specifies the information and reports on financial information u/s 26(1).
A declaration shall be made affirming the compliance of the provisions of this
Act (the Companies Act 2013 13)
A statement shall also include to the effect that nothing in the prospectus is
contrary to the provisions of;
a. The Companies Act, 2013 14
b. Securities Contract (Regulation) Act, 1956 15
c. Securities and Exchange Board of India Act, 1992 16

d. Rules and Regulations made under above three statutes.
The provisions of Section 26(1) shall not apply [Sub-section 2]
a. If prospectus issued to existing members or debenture-holders of a

company;
12
(1929) AC 158 | 140 LT 146 (HL)
13
Act 18 of 2013
14
ibid
15
Act 42 of 1956
16
Act 15 of 1992

b. If prospectus issued relating to shares or debentures which are in all respects

uniform with shares or debentures previously issued and for the time being
dealt in or quoted on a recognised stock exchange.
Date of publication of prospectus [Explanation to Sub-section 3]
The date indicated in the prospectus shall be deemed to be the date of its
publication.
Filing of signed copy with Registrar [Sub-section 4]
A prospectus shall not be issued unless a signed copy of such prospectus has
been delivered to the Registrar for filing.
Such copy shall be signed by every person who is named as either director or
proposed director in such prospectus. Duly authorised attorney can sign in
representative capacity.
Example – Ms. Sarika, executive director of leading Fintech Company has to fly to
Davos to attend World Economic Forum meet.
While company secretary of the company intended to file a copy of prospectus

with registrar upcoming, Ms. Sarika authorised in writing, Mr. Gautam for signing
of such copy on her behalf.
Date of filing copy of prospectus with registrar is important in context of concept

of validity of prospectus for issue, discussed under section 26(8)
Conditions in regard to Experts’ statement [Sub-section 5]
A prospectus issued under section 26(1) shall not include a statement purporting
to be made by an expert, if any of following condition met;
a. If he is engaged or interested in the formation or promotion or management
of the company, or
b. If the expert has not given written consent to the issue of the prospectus, or
c. If he has withdrawn the consent before the delivery of a copy of the
prospectus to the Registrar for filing

A statement to that effect (non-existence of conditions, if expert’s statement is

included) shall also be included in the prospectus.
Purpose of sub-section 5 is to ensure independence of expert to protect the

financial interest of prospective investor who may invest in company after relaying
upon the statement of such expert.
Expert as per Section 2(38) of the Act, includes an engineer, a valuer, a Chartered
Accountant, a Company Secretary, a Cost Accountant and any other person who
has the power or authority to issue a certificate in pursuance of any law for the
time being in force.
Disclosure on the face of prospectus [Sub-section 6]

Prospectus issued under sub-section (1) shall, on the face of it, state/specify;
a. That a copy has been delivered for filing to the Registrar under sub-section
(4);
b. Documents required by this section to be attached to the copy so delivered
or refer to statements included in the prospectus which specify these
documents.
Validity of Prospectus for issue [Sub-section 8]
A prospectus is considered to be valid for issue, only if 90 days has not been
lapsed from the date on which a copy thereof is delivered to the Registrar under
section 25(4).
The date of issue is important for many reasons, one of them being the value of
securities keeps changing.
If 90 days have expired after filling of prospectus, it is better to send a fresh copy
of prospectus to registrar under section 26(4); to avoid the penalties imposed
under section 26(9)
Validity of Prospectus for issue [Sub-section 9]
If a prospectus is issued in contravention of the provisions of section 26 the

company and every person who is knowingly a party to the issue of such
prospectus shall be punishable with fine of ₹ 50,000 to ₹ 3,00,000.

Example - The Board of Directors of a Pharmaceutical Limited has allotted shares

to the public by issuing a prospectus that is not filed with the Registrar of
Companies.
In this regard, it is to be noted that a public company can issue securities to the
public only by issuing a prospectus, under section 23(1)(a) of the Act.
Further section 26(4) requires that no prospectus shall be issued unless, a duly
signed copy of the prospectus forwarded to Registrar for filing.
In the given case, the company has issued the prospectus in violation of the
provisions of section 26. Hence, company as well as the person who is knowingly
a party to this, will be punishable with penalty under section 26 (9) of the Act.
Statement – The copy of prospectus submitted with registrar for filling need to be duly
signed by majority of directors.
Answer – False
Under section 26(4) of the Act, the copy of prospectus submitted with registrar for filing
shall be signed by every person who is named as either director or proposed director
in such prospectus. Duly authorised attorney can sign in representative capacity.
VARIATION IN TERMS OF CONTRACT OR OBJECTS STATED IN

PROSPECTUS [SECTION 27]
Sub-section 1 provides, the terms of a contract referred to in the prospectus or

objects for which the prospectus has been issued can be varied, but only with
the authority of the company given by it in general meeting by way of special
resolution.
First proviso to sub-section 1 requires that prescribed details of the notice which has
to be given to the shareholders are to be published in newspapers (one in English
and one in vernacular language) circulating in the city where the registered office of
the company is situated indicating clearly the justification for such variation.
The second proviso to sub-section (1) also prescribes that such company is not
to use any amount raised by it through the prospectus for buying, trading or
otherwise dealing in equity shares of any other listed company.

Sub-section (2) provides that the dissenting shareholders (i.e. those who did not
agree to the variation) are to be given an exit offer by promoters or controlling
shareholders at such exit price and in such manner and conditions as may be
specified by SEBI by making regulations for this purpose.
Example – Ind-swift pharma limited after issue of prospectus, willing to make

variation in object of issue of prospectus (due to change in industry brought by
covid-19 among other dynamics of pharma industry). What is your piece of advice
to Ind-swift pharma limited?
In given case, Ind-swift should authorise the changes through special resolution
passed at general meeting and copy of notice that is given to shareholder for such
variation shall be published in newspaper along with justification of variation.
If any shareholder shows dissent then exit option shall be provided in accordance
with guideline issued in this regards by SEBI.
Once funds are raised through a given prospectus, the principle of “doctrine of
ultra vires” (mutatis mutandis) comes into play i.e., the company has to use the
funds strictly in accordance with the prospectus.
But if in any case variation need to made, then such deviations are required to be
pre-approved by the investors and ‘recall option’ needs to be given to the
dissenting investors. Deviation regarding use of proceeds of issue for buying,
trading or otherwise dealing in equity shares of any other listed company is not
permitted in any case.
Procedural Aspects
Rule 7 of the Companies (Prospectus and Allotment of Securities) Rules, 2014
Sub-rule 1, provides for Special Resolution to be passed through Postal Ballot
and Contents to be included in Notice.
Further Sub-rule 2, provides the advertisement of the notice (for getting the
resolution passed) shall be in Form PAS-1 and such advertisement shall be
published simultaneously with dispatch of Postal Ballot Notices to Shareholders.
According to Sub-rule 3, the notice shall also be placed on the website of the
company, if any.

Illustration (MCQ)
In case of variation in terms of contract or objects in prospectus, which of the
followings statement are not true;
(i) Ordinary resolution shall be passed at general meeting
(ii) Notice given to shareholder shall also be published in two newspapers
(iii) Amount so raised can be invested only in equity share of prescribed class of
companies.
Options
(a) (i) only
(b) Both (i) and (ii) only
(c) Both (i) and (iii) only
(d) Both (ii) and (iii) only
Answer – (c)
OFFER OF SALE OF SHARES BY CERTAIN MEMBERS OF COMPANY

[SECTION 28]
Sub-section 1 provides that, member or members of a company, in consultation
with board of directors, may offer whole or part of their holding of shares to
the public, in accordance with the provisions of the law for the time being in force.
Further sub-section 2 provides that the document by which the offer of sale to the
public is made shall be treated as prospectus issued by company. Hence, all
provisions apply accordingly.
At last sub-section 3 highlights the members' responsibility in the matter of sale
under sub-section 1. It provides, the members whether individual or bodies
corporate or both, whose shares are proposed to be offered to the public, shall
collectively to authorise the company to take all actions on their behalf for
carrying out the transaction. They also have to reimburse the company for all
expenses made by it on this matter.
Procedural Aspects
According to Rule 8 (1) the provisions of section 23 to 41 of this Act and rules

made thereunder shall be applicable to an offer of sale referred to in section 28

except for the provisions relating to;
a. minimum subscription
b. minimum application value
c. any statement to be made by the Board of directors in respect of the
utilization of money; and
d. information which cannot be compiled or gathered by the offer or, with
detailed justifications for not being able to comply with such provisions.
Further, Rules 8 (2) requires that the prospectus issued under section 28 shall
disclose the name of the person or persons or entity bearing the cost of making
the offer of sale along with reasons.
Illustration (Q&A)
In case of Super-Fix-it Limited, some of members of a company offer part of their
holding of shares to the public (in consultation with board of directors), wherein
company took all actions on their behalf for carrying out the transaction.
Company incur the expense of ` 3.2 lakh for carrying out such transactions, can
company recover the amount so incurred in full from such members?
Answer – Yes, members who offer whole or part of their holding of shares to the
public, in consultation with board of directors, shall authorise the company to take all
actions on their behalf for carrying out the transaction, and bound to reimburse the
company for all expenses made by it on this matter (Refer section 28(3).
PUBLIC OFFER OF SECURITIES TO BE IN DEMATERIALISED FORM

[SECTION 29]
Sub-section 1 has overriding effect to any other provision of this Act. It provides
that every company making a public offer and such other class or classes of
companies as may be prescribed, have to issue their securities only in
dematerialised form by complying with the provisions of the Depositories Act,
1996 17 and regulations made under it.
17
Act 22 of 1996

Sub-section 1A inserted in 2019, provides that in case of prescribed class/classes

of unlisted companies, the securities shall be held or transferred only in
dematerialised form by complying with the provisions of the Depositories Act,
1996 18 and regulations made under it.
Further sub-section 2 provides, any other company may;
a. Convert its securities into demateriaiised form;
b. Issue its securities in physical form in accordance with the provisions of this
Act;
c. Issue its securities in dematerialised form in accordance with the provisions
of the Depositories Act, 1996 19 and the regulations made thereunder.
Rule 9 (Dematerialisation of securities) and 9A (Issue of securities in dematerialised

form by unlisted public companies; inserted vide Companies (Prospectus and
Allotment of Securities) Third Amendment Rules, 2018) of Companies (Prospectus
and Allotment of Securities) Rules, 2014 is relevant for procedural aspects
pertaining to Public Offer of Securities to be in Dematerialised Form
ADVERTISEMENT OF PROSPECTUS [SECTION 30]

Where an advertisement of any prospectus of a company is published in any
manner, it shall be necessary to specify therein the contents of its memorandum
as regards the following:
a. Objects,
b. Liability of members and the amount of share capital of the company,
c. Names of the signatories to the memorandum,
d. Number of shares subscribed for by the signatories, and
e. Capital structure of the company.
18
ibid
19
ibid

SHELF PROSPECTUS [SECTION 31]

Meaning of Shelf Prospectus [explanation to section 31]
The expression “shelf prospectus” means a prospectus in respect of which the
securities or class of securities included therein are issued for subscription in one
or more issues over a certain period without the issue of a further prospectus.
Need of Shelf Prospectus
A company is required to issue a prospectus each time it accesses the capital
market. It leads to unnecessary repetition for a company which makes more than
one offer of securities in a year to mobile funds from the public. A way out is
shelf prospectus which remains valid (on the shelf) for a specified time period
during which offers for securities may be made by a company to the public without
going through the arduous exercise of issuing fresh prospectus every time.
Filing of shelf prospectus with the Registrar [Sub-section 1]
Shelf prospectus may be filled with the Registrar at the stage of first offer of
securities, by class or classes of companies as the Securities and Exchange Board
of India may provide by regulations in this behalf.
It has to indicate a period not exceeding one year as the period of validity of
such shelf prospectus.
The period of validity is to commence from the date of opening of the first offer
of securities under such prospectus.
In respect of any second or subsequent offer of such securities issued during
the period of validity of such prospectus, no further prospectus is required.
Filing of ‘Information Memorandum’ with the Shelf Prospectus [Sub-section 2]
A company filing a shelf prospectus shall be required to file an information
memorandum with the Registrar within the prescribed time, prior to the issue of a
second or subsequent offer of securities under the shelf prospectus containing;
a. All material facts relating to new charges created,
b. Changes in the financial position of the company as have occurred between
the first offer of securities or the previous offer of securities and the
succeeding offer of securities, and
c. Such other changes as may be prescribed,

Proviso to Sub-section 2, provides a safeguard (in case of changes) to

applicants who made payment in advance. It is provided that where a company
or any other person has received applications for the allotment of securities along
with advance payments of subscription before the making of any such change, the
company or other person shall intimate the changes to such applicants and if they
express a desire to withdraw their application, the company or other person shall
refund all the monies received as subscription within fifteen days thereof.
Procedural Aspects
The information memorandum shall be prepared in Form PAS-2.
It shall be filed with the Registrar along with the fee as provided in the Companies
(Registration Offices and Fees) Rules, 2014 within one month prior to the issue
of a second or subsequent offer of securities under the shelf prospectus.
Information Memorandum together with Shelf Prospectus is deemed

Prospectus [Sub-section 3]
Where an information memorandum is filed, every time an offer of securities is
made under sub-section (2), such memorandum together with the shelf
prospectus shall be deemed to be a prospectus.
Illustration (MCQ)
An applicant who made application for allotment along with advance payment of
subscription, if he expresses a desire to withdraw his application after changes
reported in information memorandum came to his knowledge. The company;
Options
a. May refund the monies at discretion of Board of Directors
b. Shall refund the monies after deducting the administrative charges within
fifteen days
c. Shall refund all the monies received as subscription within fifteen days
d. Shall refund the monies after deducting the administrative charges within 30
days

Answer – c [Refer proviso to section 31(2). It is provided that where a company or

any other person has received applications for the allotment of securities along
with advance payments of subscription before the making of any such change, the
company or other person shall intimate the changes to such applicants and if they
express a desire to withdraw their application, the company or other person shall
refund all the monies received as subscription within fifteen days thereof].
RED HERRING PROSPECTUS [SECTION 32]
Meaning of Red Herring Prospectus (explanation to section 32)
The expression "red herring" means a prospectus which does not include
complete particulars of the quantum or price of the securities.
Need of Red Herring Prospectus

Developments taking place in the financial markets from time to time allow
innovative methods of raising funds so as to avail the most of favourable market
conditions. Timing the issue and book building of issue are facilitated by the
concept of red herring prospectus whereby the price per security and number
of securities are left open to be decided post closure of the issue.
Timing of issue the Red Herring Prospectus [Sub-section 1]
A company proposing to make an offer of securities may issue a red herring
prospectus prior to the issue of a prospectus.
Filing of Red Herring Prospectus with the registrar [Sub-section 2]
A company proposing to issue a red herring prospectus shall file it with the
Registrar at least three days prior to the opening of the subscription list and
the offer.
Obligations under Red Herring Prospectus vis-à-vis Prospectus [Sub-section 3]
A red herring prospectus shall carry the same obligations as are applicable to a
prospectus and any variation between the red herring prospectus and a
prospectus shall be highlighted as variations in the prospectus.
Filing with Registrar and SEBI upon closing of Offer [Sub-section 4]
Upon the closing of the offer of securities under this section, the prospectus
stating therein the total capital raised, whether by way of debt or share capital,
and the closing price of the securities and any other details as are not included

in the red herring prospectus shall be filed with the Registrar and the Securities
and Exchange Board.
Book Building is actually a price discovery method. In this method, the company
doesn't fix up a particular price for the shares, but instead gives a price range.
An underwriter builds a book by accepting orders from fund managers, indicating
the number of shares they desire and the price they are willing to pay.
CONCEPT OF ABRIDGED PROSPECTUS - ISSUE OF APPLICATION FORMS

FOR SECURITIES [SECTION 33]
Meaning of Abridged Prospectus [Section 2(1)]
Abridged Prospectus means a memorandum containing such salient features of
a prospectus as may be specified by the Securities and Exchange Board by making
regulations in this behalf.
Need of Abridged Prospectus
In fact, ‘Abridged Prospectus’ is a summarized form of actual prospectus,
containing the salient features of a prospectus to cut the cost involved in the
publication of large number of prospectus which has to accompany the
application forms for shares or debentures in case of public offer.
Abridged Prospectus accompany the application form [Sub-section 1]
Section 33(1) provides that every application form for shares or debentures has to
be accompanied with the abridged prospectus.
Proviso to sub-section 1 provides exceptions, when the requirement of abridged

prospectus does not apply;
a. When application form is issued in connection with a bona fide invitation to

a person to enter into an underwriting agreement with respect to shares or
debentures:
b. In relation to shares or debentures which were not offered to the public; or
c. Where offer is made only to existing members of the company

Right to receive prospectus [Sub-section 2]
Sub-section 2 provides that a prospectus (full prospectus) is to be made available

to any person who request for it before the closing of the subscription list and the
offer.
Penalty [Sub-section 3]
A company who makes any default in complying with the provisions of section 33,
shall be liable to a penalty of fifty thousand rupees for each default.
5. MIS-STATEMENTS IN PROSPECTUS
A contract of shares in a company is a contract of Uberrimae fides (Latin), which
means ‘utmost good faith’. The legal doctrine of Uberrimae fides provides that all
parties to contract must deal in good faith, making a full declaration of all material
facts. The intending purchasers of shares are entitled to true and correct disclosures
of all the facts in the prospectus.
Hence, a prospectus must make all statements with scrupulous accuracy and not
state facts which are not strictly correct. Neither any information which the law
requires to be disclosed to the public be concealed or omitted to be stated from the
prospectus nor should the information given be false and misleading.
Mis- statements in prospectus is a serious offence which attracts the provisions of

section 34 (criminal liability) and / or section 35 (civil liability) of the Act. In this section
we will learn about misleading prospectus, remedies for misrepresentation in the
prospectus.
WHAT CONSTRUE AS MIS-STATEMENT AND MISLEADING PROSPECTUS

A prospectus is said to be misleading, if it includes any mis- statement. In common
parlance, mis-statement is the act of stating anything that is false (or not accurate).
A statement become false statement, if it produces a wrong impression of actual
facts. It could either be due to commission or omission or both.
As per section 34, a statement included in a prospectus shall be deemed to be untrue;
a. if the statement is misleading in the form and context in which it is included: or
b. where any inclusion or omission of any matter is likely to mislead

Some of landmark judicial pronouncements - only for reference and better

understanding
Mislead through false Statement (prima-facie of facts) - Henderson v. Lacon 20
It was stated in the prospectus, ‘the directors and their friends have subscribed a
large portion of the capital and they now offer to the public the remaining shares.’
Whereas, in actually each of director had subscribed only 10 shares. It was held
that such a statement is misleading one.
Misled by hiding truth through superficial statement - Rex v. Kylsant 21
In the prospectus, it is stated that the company had regularly paid dividends, in
actual, company has been incurring substantial losses during all those years.
Company used to write back some of the past provisions to the credit of the profit
and loss account. It was held that the prospectus did not disclose the true picture
of the company.
Misled through ambiguous statement - Smith v. Chadwick 22
The prospectus of a manufacturing company contain, ‘the present value of
turnover is £1million sterling per annum,’ the statement was true only if
production capacity is considered but untrue if it meant the present production
level (capacity in utilisation). It was held that, such a statement which director knew
may bear multiple meaning out of which any can be false to their knowledge,
considered to be furnishing of misleading statement.
EFFECT OF MISLEADING PROSPECTUS – REMEDIES OF MISREPRESENTATION

The fear of heavy liability and criminal sanctions have controlled the directors'
tendency of "using extravagant terms and flattering description".
But if the prospectus contains a misleading or false statement or omits to disclose a
material fact which amounts to misrepresentation, the aggrieved shareholder has the
remedies. The law allows the following remedies for misrepresentation:
20
C 16/276/H211 (1865 - Cause number: 1865 H211)
21
Harvard Law Review Vol. 45, No. 6 (Apr., 1932), pp. 1078-1083 (available at
https://doi.org/10.2307/1332145)
22
HL 18 Feb 1884

Remedies for
Misrepresentation in
Prospectus
Against Against the Against the persons

the Company & authorised to issue
Company others prospectus
Civil Liability Criminal Damages

Rescission Damages
(Compensation) Liability for Deceit
Remedy of Rescission, Damages and Deceit are not specified under this Act, they
are available under the Indian Contract Act 1872 23 read with relevant provisions of
Specific Relief Act 1963 24. Whereas Criminal and Civil Liability is provided under
section 34 and 35 respectively of this Act.
Since remedies specified above are alternative courses, hence all of these remedies
are not available simultaneously, whereas appropriate combination of these can
be claimed.
To illustrate, claim for compensation under section 35 (civil liability) of this Act
(being special statute where jurisdictional power is vested in NCLT) shall not be
moved simultaneously with claim for Damages (under general provisions).
RIGHT OF RESCISSION
When to seek rescission?
A person who has purchased shares from the company on the basis of the prospectus
containing untrue and misleading statement of material facts is entitled to apply to
the court for the rescission of the contract, under the relevant provisions of the Indian
Contract Act 1872 25.
Effect of rescission
The agreement to take up shares is voidable at the option of the subscriber to the
shares, it will remain valid unless he actually rescinds it.
23
Act 9 of 1872
24
Act 47 of 1963
25
Act 9 of 1872

If the court accepts his application for the repudiation of the contract, company will
remove his name from the register of members and return his money with interest
and other incidental cost.
Entitlement to compensation for any damages which he sustained through the non-
fulfilment of the contract arises under section 75 of the Indian Contract Act 1872 26.
Exceptions – When right of rescission is not available?
a. Right to rescind allotment of shares will not be available to the subsequent
purchasers of shares from the market.
b. A subscriber to the Memorandum of Association cannot also seek any relief, as
the company cannot be considered to be in existence at the time when he
appended his signatures to the Memorandum of Association. He cannot be
said to have been influenced by any statement in the prospectus.
Illustration (Q&A)
All the statements contained in a prospectus issued by a company were literally true.
It was also stated in the prospectus that the company had paid dividends for a
number of years but there was no disclosure regarding the fact that the dividends
were paid out of realised capital profits and not out of trading profits. An allottee of
shares wants to avoid the contract on the ground that the prospectus was false in
material particulars.
Answer – The non-disclosure of the fact that dividends were paid out of capital
profits is a concealment of material fact as a company is normally required to
distribute dividend only from trading or revenue profits and under exceptional
circumstances it can pay dividend out of capital profits. Hence, a material
misrepresentation has been made.
Accordingly, in the given case the allottee can avoid the contract of allotment of shares.
RIGHT OF ACTION FOR DAMAGES
When to evoke?
In the cases where mis- statement amounts to fraud, aggrieved investor also gets a
right of action for damages against the company. This right is available even after the
company has gone into liquidation.
26
ibid

Pre-requisite to claim for damages
a. Misrepresentation (fraudulent) was there in the prospectus and it is of material

fact
b. Person is intended to act upon it
c. Person suffered the damages as consequences of acting upon such fraudulent

misrepresentation.
CIVIL LIABILITY FOR MIS-STATEMENTS IN PROSPECTUS [SECTION 35]
Offence under section 35
Loss or damage to subscriber of securities, as a consequence of acting on basis of

inclusion or omission of any matter in the prospectus; which is misleading the
subscriber/s.
Who shall be held liable?
a. Company; and
b. Every person who is/has;
i. A director of the company at the time of the issue of the prospectus;
ii. Authorised himself to be named and is named in the prospectus as a

director of the company, or has agreed to become such director, either
immediately or after an interval of time;
iii. A promoter of the company;
iv. Authorised the issue of the prospectus; and
v. An expert referred to in sub-section (5) of section 26,
Liability for an offence under section 35
A person found guilty under section 35, in addition to any punishment under
section 36, a company and every other person shall also be liable to pay
compensation to every person who has sustained loss or damage.
Exception to liability for guilty/offence under section 35 [Sub-section 2]
Sub-section 2, provides the instances when a person shall not be held guilty under
section 35 of this Act, if he proves;

a. He withdrew his consent to be a director of company and prospectus

issued without his consent and authority.
b. He has given reasonable public notice to effect, that prospectus was issued
without his knowledge and consent.
c. He made the statement on the authority of an expert whom he believed to

be competent and that the expert had given his consent and had not
withdrawn it.
d. He had reasonable ground for believing the statement to be true and

that he did believe it to be true up to the time of allotment.
e. The statement was a correct copy of some extract from an official

document and that he had in fact believed.
Personal Liability when intend to defraud [Sub-section 3]
Every person referred under sub-section 1 shall be personally responsible,

without any limitation of liability;
− For all or any of the losses or damages that may have been incurred by any
person who subscribed to the securities on the basis of such prospectus;
Where it is proved that a prospectus has been issued with intent to defraud the
applicants for the securities of a company or any other person or for any fraudulent
purpose.
Illustration (Q&A)
A prospectus issued by a company contained certain mis-statements. On becoming
aware of the fact regarding mis-statements in the prospectus, one of the experts
Anilesh who had earlier given his consent, forthwith gave a reasonable public notice
stating that the prospectus was issued without his knowledge and consent. Is it
possible for Anilesh to escape liability for mis-statement in the prospectus?
Answer – Section 35 (2) of the Companies Act, 2013 states that no person shall be
liable under Sub-section (1) if he proves that the prospectus was issued without
his knowledge or consent, and that on becoming aware of its issue, he forthwith
gave a reasonable public notice that it was issued without his knowledge or
consent.

The case of Anilesh is covered under the above exception provided by Sub-section
(2) and therefore, he will escape liability for mis-statement in the prospectus.
CRIMINAL LIABILITY FOR MIS-STATEMENTS IN PROSPECTUS
[SECTION 34]
Offence under section 34?
Where a prospectus is issued, circulated or distributed that includes;
a. Any statement which is untrue or misleading in form or context in which it is
included or
b. Where any inclusion or omission of any matter is likely to mislead.
Who shall be held liable?
Every person who authorises the issue of such prospectus

Liability for an offence under section 34
Such persons found guilty under section 34 shall be liable for punishment under
section 447 of this Act,
Exception to liability for guilty/offence under section 34 [Proviso to section
34]
Proviso to section 34 provides the instances when a person shall not be held guilty
under section 34 of this Act, if he proves that;
a. Such mis-statement or omission was immaterial, or
b. He had reasonable grounds to believe, and did up to the time of issue of the
prospectus believe, that the statement was true or the inclusion or omission
was necessary.
Note
a. Loss from mis-statement is not essential, to held a person guilty under
section 34.
b. Liability for offence under section 34, is strict liability, hence it is immaterial
where the omission is intentional or unintentional, in both case person will
be held guilty under section 34 and liable for punishment under section 447
of this Act.

Summary of section 34 and 35.

Liability for Mistatement
Criminal Liability Civil Liabilty
Company, director, proposed director, promoter,

Every person who authorised for issue of prospectus
Expert, one who authorised for issue of prospectus
Punishable u/s 447 Pay compensation to Investors
Defenses Defenses
Believed on Issued without his

Immaterial Reasonable Withdrew its consent
consent u/s knowledge, Public
ground to believe to be a director
26(5) Notice
Illustration (Q&A)
An allottee of shares in a company brought action against a director in respect of
false statements made in the prospectus. The director contended that the statements
were prepared by the promoters and he simply relied on them. Is the director liable
under the circumstances?
Answer – Yes, the Director shall be held liable for the false statements made in
the prospectus under sections 34 and 35 of the Companies Act, 2013. Whereas
section 34 imposes a criminal punishment on every person who authorises the
issue of such prospectus, section 35 more particularly includes a director of the
company in the imposition of liability for such mis-statements.
Certain situations when a director will not incur any liability for mis-statements in
a prospectus are covered under exceptions provided by Section 35 (2) but no such
exception specifies that relying on the statements prepared by the promoters of
the company is a valid ground for a director to escape liability for mis-statement.
DAMAGES FOR DECEIT
When remedy of damages for deceit is available?
Persons responsible for the issue of prospectus can also be held liable in an action
for deceit, under general law as provided by section 19 of the Indian Contract Act.
This remedy shall be available even where the remedy by way of rescission as
against the company is lost either through latches or negligence or even if the
company goes into liquidation.

Prerequisite to claim damages for deceit is available

a. There was a fraudulent mis-statement related to some existing material facts.
b. He is original allottee and had seen the prospectus.
c. He has been actually deceived.
Peek v. Gurney
Gurney issued a fraudulent prospectus on behalf of a company. No shares were
purchased by Peek at that time. Several months afterwards, Peek purchased 2,000
shares of the company from the stock exchange. He brought an action against the
directors for deceit (on the basis of prospectus). Court held, the directors were not
liable as the shares were not purchased on the basis of prospectus.
6. PUNISHMENT FOR FRAUDULENTLY

INDUCING PERSONS TO INVEST MONEY
[SECTION 36]
Any person who, either knowingly or recklessly makes any statement, promise or
forecast which is false, deceptive or misleading, or deliberately conceals any
material facts, to induce another person to enter into, or to offer to enter into:
a. any agreement for, or with a view to, acquiring, disposing of, subscribing for,
or underwriting securities; or
b. any agreement, the purpose or the pretended purpose of which is to secure
a profit to any of the parties from the yield of securities or by reference to
fluctuations in the value of securities; or
c. any agreement for, or with a view to obtaining credit facilities from any bank
or financial institution,
shall be liable for action under section 447.
Example – A huge sums of money were collected under a document described as
"project overview" by NRIs but shares not allotted in the proposed joint venture
company instead the money was diverted to some off-shore companies controlled
by the accused persons. Prima-facie offence under section 36 made-out.

7. ACTION BY AFFECTED PERSONS [SECTION 37]

A suit may be filed or any other action may be taken under section 34 or section
35 or section 36 by:
a. Any person,
b. Group of persons or
c. Any association of persons
If affected by any misleading statement or the inclusion or omission of any
matter in the prospectus.
Illustration
M applies for equity shares of a company on the basis of a prospectus which contains
mis–statement. The shares are allotted to him, who afterwards transfers them to N.
Whether N can bring an action for a rescission on the ground of mis-statement
under section 37 of the Companies Act, 2013?
Answer – No. N cannot bring an action for rescission of the contract for buying
shares from M on the ground of mis-statement made in the prospectus. Section
37 of the Companies Act, 2013 does not become applicable in such a situation.
It is noteworthy that according to Section 37, a suit may be filed or any other
action may be taken under section 34 or section 35 or section 36 only by any
person, group of persons or any association of persons affected by any misleading
statement or the inclusion or omission of any matter in the prospectus. Therefore,
only M is eligible to file a suit.
Section 37 has paved way for class action

Class action suit is for a group of people filing a suit against a defendant who has
caused common harm to the entire group or class. This is not like a common
litigation method where one defendant files a case against another defendant
while both the parties are available in court. In the case of class action suit, the
class or the group of people filing the case need not be present in the court and
can be represented by one petitioner. The benefit of these type of suits is that if
several people have been injured by one defendant, each of the injured person
need not to file a case separately but all the people can file one single case
together against the defendant.

8. PUNISHMENT FOR PERSONATION FOR

ACQUISITION, ETC., OF SECURITIES
[SECTION 38]
The purpose of the section is to prevent allotment of shares in fictitious names.
Sub-section 1 provides, any person shall be liable for punishment under section
447, if:
a. He makes or abets the making of an application in a fictitious name to a
company for acquiring, or subscribing for, its securities; or
b. He makes or abets the making of multiple applications in different names or
different combinations of his name or surname for acquiring or subscribing for
its securities; or
c. otherwise induces, directly or indirectly a company to allot or register any
transfer of any securities to him or to any other person in a fictitious name.
Sub-section 2, provides that every company which issues a prospectus is required
to reproduce prominently the provisions of the sub- section (1) in the prospectus
and every form of application for securities.
Note:
A person who gets shares allotted in a fictitious name becomes liable as a
shareholder. Thus, where a person carried on business under an assumed name
and took shares in that name, his trustee in bankruptcy of the said person, could
not avoid liability.
Sub-section 3 provides, where a person has been convicted under the section, the
court may order disgorgement of any gain made by such person. The order may
also include seizure and disposal of securities which may be found in his
possession.
The amount received through disgorgement or disposal of securities under sub-
section (3), is to be credited to the Investor Education and Protection Fund. [Sub
section (4)]

9. PUNISHMENT FOR FRAUD [SECTION 447]

Amount and Fine Imprisonment
nature of fraud Minimum Maximum Minimum Maximum
Fraud involving less
than 10 lakh rupees
or 1% of turnover, Up to ` 50 Up to 5
- or/and -
whichever is lower lakh years
(public interest not
involved)
Fraud involving at
least 10 lakh rupees
Equal to 3 times of
or 1% of turnover,
amount amount of and 6 Months 10 Years
whichever is lower
of fraud fraud
(public interest not
involved)
Fraud in question Equal to 3 times of
involves public amount amount of and 3 Years 10 Years
interest of fraud fraud
Section 447 provides three explanations, read as:

(i) “fraud” in relation to affairs of a company or any body corporate, includes
any act, omission, concealment of any fact or abuse of position committed
by any person or any other person with the connivance in any manner, with
intent to deceive, to gain undue advantage from, or to injure the interests
of, the company or its shareholders or its creditors or any other person,
whether or not there is any wrongful gain or wrongful loss.
(ii) “wrongful gain” means the gain by unlawful means of property to which
the person gaining is not legally entitled.
(iii) “wrongful loss” means the loss by unlawful means of property to which
the person losing is legally entitled.

Fraud, in relation to affairs of a company or body coprate
Includes
Committed by With intent to
Any act, Whether or
Any person Deceive, not there is
Omission,
or Gain undue any
Concealment advantage,
of the facts, Any other Wrongful gain
person with the or or
and/or
connivance in Injure the
Abuse of Wrongful loss;
any manner; interests;
position;
of the company or
its shareholders or
its creditors or
any other person,
Illustration
Mr. Raju one of prospective investor under section 37 of this Act, sue the persons
who authorise the issue of prospectus for the fraudulent misstatements they made
in the prospectus. Mr. Raju also filed a complaint under section 420 of the IPC, 1860
and section 447 of this Act.
Mr. Angad one of the authorised persons, plead that Mr. Raju did not took any share,
hence he has not borne any sort of loss, therefore he cannot seek the remedies, for
what he is asking for and they are not punishable under section 447, because fraud
is not committed against Mr. Raju. Whether the persons who authorised the issue of
prospectus punishable under section 447?
Answer
In this case, the persons who authorised the issue of prospectus shall be
punishable under section 447 for the fraudulent misstatement, despite the fact
that Mr. Raju had not borne any loss. Because wrongful gain or loss is not essential
constituent of fraud under section 447.

10. ALLOTMENT OF SECURITIES BY COMPANY

[SECTION 39]
MEANING OF ALLOTMENT
Offers for shares are made on application forms supplied by the company. When
an application is accepted, it is an allotment
Hence, in general sense 'allotment' is neither more nor less than the acceptance
by the company of the offer to take shares.
In technical context, it is an appropriation out of the previously unappropriated
capital of a company.
Note
Where forfeited shares are re-issued, it is not the same thing as an allotment.
A valid allotment has to comply with the requirements of the Act and principles of
the law of contract relating to acceptance of offers.
Section 39 of the Act and the Companies (Prospectus and Allotment of Securities)
Rules, 2014 contains provisions in respect of allotment of securities when there is
a public offer.
MINIMUM SUBSCRIPTION IS A MUST [SUB-SECTION 1]

The first requisite of a valid allotment is that of minimum subscription.
Hence, when shares are offered to the public, the amount of minimum subscription
has to be stated in the prospectus.
No shares can be allotted unless:
a. At least so much amount (which is stated as minimum subscription) has been
subscribed and
b. The sums payable on application for the amount so stated have been paid
to and received by the company by cheque or other instrument from the
subscribers or investors at the time of making application.

Note:
As per the regulation 45(1) of the Securities and Exchange Board of India (Issue of
Capital and Disclosure Requirements) Regulations, 2018 27, the minimum
subscription is 90% of the entire issue.
Any means by which money can be remitted may be used, but remittances must
be cleared and actual cash received by the company before proceeding to
allotment. An application for shares, if not accompanied by any such payment,
does not constitute a valid offer.
QUANTUM OF AMOUNT PAYABLE ON APPLICATION [SUB-SECTION 2]

The amount payable on application shall not be less than:
a. 5% of the nominal amount of the security or
b. Such other percentage or amount, as may be specified by the Securities
and Exchange Board by making regulations in this behalf.
Here, it is important to note that as per the regulation 47(4) of the 28Securities and
Exchange Board of India (Issue of Capital and Disclosure Requirements)
Regulations, 2018, the minimum sum payable on application per specified security
shall be at least twenty five percent of the issue price.
Further, proviso to regulation 47(4) provides that in case of an offer for sale,
the full issue price for each specified security shall be payable at the time of
application.
Example - If listed company offer the shares with nominal value of ` 10 then
application money shall be at least ` 2.5 and if nominal value is ` 100 then shall
be at least ` 25.
CONSEQUENCES IF MINIMUM AMOUNT IS NOT SUBSCRIBED [SUB-SECTION
3]– RETURN OF APPLICATION MONEY
If the stated minimum amount has not been subscribed and the sum payable on
27
SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 are not a part of
syllabus at Intermediate Level. However, it is necessary to build the understanding of the
students.
28
SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 are not a part of
syllabus at Intermediate Level. However, it is necessary to build the understanding of the
students.

application is not received within a period of 30 days (or any other period as
prescribed by SEBI) from the date of issue of the prospectus, the amount received
from applicants shall be returned.
Time period for return of application money
As per rule 11(1) of the Companies (Prospectus and Allotment of Securities) Rules,
2014, such refund shall be made within a period of 15 days from the closure of
such issue.
Default in return of application money
As per rule 11(1) of the Companies (Prospectus and Allotment of Securities) Rules,
2014, in case of default in refund within that period, directors and other officers
responsible for default shall be jointly and severally liable to repay that money
with interest at the rate of 15% pa.
Source for return of application money
According to Rule 11 (2), the application money to be refunded shall be credited
only to the bank account from which the subscription was remitted.
Section 40(3) and Rule 11(2) of the Companies (Prospectus and Allotment of
Securities) Rules, 2014 are confirming provisions regarding return of application
money, in case where allotment is not done.
RETURN OF ALLOTMENT [SUB-SECTION 4]

Whenever a company having a share capital makes any allotment of securities,
it shall file with the Registrar a return of allotment in manner as prescribed in the
Companies (Prospectus and Allotment of Securities) Rules, 2014.
Time Limit for filing Return of Allotment
According to Rule 12 (1) of the Companies (Prospectus and Allotment of
Securities) Rules, 2014, the company shall file a return of allotment with Registrar
in Form PAS-3 within 30 days along with the fee as specified in the Companies
(Registration Offices and Fees) Rules, 2014.
Attachments to Form PAS-3
According to Rule 12 (2) of the Companies (Prospectus and Allotment of
Securities) Rules, 2014, lists of following particulars (duly certified by the signatory
of the Form PAS-3 for completeness and correctness) shall accompany:

a. A list of allottees stating their names, address, occupation, if any, and
b. Number of securities allotted to each of the allottees.

Additional attachments to Form PAS-3 – In case share issued for
consideration other than cash.
Rule 12 (3) of the Companies (Prospectus and Allotment of Securities) Rules, 2014,
provides, in the case of securities (not being bonus shares) allotted as fully or
partly paid up for consideration other than cash, then following documents shall
also be attached;
a. A copy of the contract, duly stamped, pursuant to which the securities have
been allotted
b. Any contract of sale if relating to a property or an asset, or a contract for
services or other consideration.
Further Rule 12 (4) states that where a contract referred above is not reduced to
writing, the company shall furnish complete particulars of the contract stamped
with the same stamp duty as would have been payable if the contract had been
reduced to writing and same shall deemed to be an instrument within the meaning
of the Indian Stamp Act, 1899.
Rule 12 (5), requires a report of a registered valuer in respect of valuation of the
consideration if either of rule 12(3) or 12(4) applicable.
Attachments to Form PAS-3 – In case share issued in pursuance of Section
62(1)(c)
states that in case the shares have been issued in pursuance of clause (c) of sub-
section (1) of section 62 by a company other than a listed company whose equity
shares or convertible preference shares are listed on any recognised stock
exchange, there shall be attached to Form PAS-3, the valuation report of the
registered valuer.
PUNISHMENT FOR DEFAULT [SUB-SECTION 5]
In case of any default under sub-section (3) or sub-section (4), the company and
its officer who is in default shall be liable to a penalty, for each default, of one
thousand rupees for each day during which such default continues or one lakh
rupees, whichever is less.

Illustration
After having received 80% of the minimum subscription as stated in the prospectus,
Raksha Detective Instruments Limited, before finalisation of the allotment, withdrew
50% of the said amount from the bank for the purchase of certain assets. Thereafter,
it started allotting the shares to the subscribers. Rashmi, one of the subscribers, was
allotted 1000 equity shares. She, however, refused to accept the allotment on the
ground that such allotment was violative of the provisions of the Companies Act,
2013.
Answer
According to the above example, Raksha Detective Instruments Limited has
received only 80% of the minimum subscription as stated in the prospectus. Since
minimum amount has not been received in full, the allotment is in contravention
of section 39 (1) of the Companies Act, 2013 which prohibits a company from
making any allotment of securities until it has received the amount of minimum
subscription stated in the prospectus. Further, under section 39 (3), such company
is required to refund the application money received (i.e. 80% of the minimum
subscription) to the applicants.
Therefore, in the present case, Rashmi is within her rights to refuse the allotment
of shares which has been illegally made by the company.
11. SECURITIES TO BE DEALT WITH IN STOCK

EXCHANGES [SECTION 40]
FILING OF AN APPLICATION WITH RECOGNISED STOCK EXCHANGE
[SUB-SECTION 1]
Before making public offer, every company shall make an application to one or
more recognised stock exchange or exchanges and obtain permission for the
securities to be dealt with in such stock exchange or exchanges.
PROSPECTUS TO STATE NAME OF STOCK EXCHANGE [SUB-SECTION 2]
Name or names of the stock exchange in which the securities shall be dealt with,
must be stated in the prospectus.

MAINTAINING OF SEPARATE BANK ACCOUNT [SUB-SECTION 3]

All monies received on application from the public for subscription to the
securities shall be kept in a separate bank account in a scheduled bank and shall
not be utilised for any purpose other than:
a. For adjustment against allotment of securities where the securities have
been permitted to be dealt with in the stock exchange or stock exchanges
specified in the prospectus; or
b. For the repayment of monies within the time specified by the Securities
and Exchange Board, received from applicants in pursuance of the
prospectus, where the company is for any other reason unable to allot
securities.
Note: Section 40(3) and Rule 11(2) of the Companies (Prospectus and Allotment
of Securities) Rules, 2014 are confirming provisions regarding return of
application money; in case where allotment is not done.
Rule 11(2) of the Companies (Prospectus and Allotment of Securities) Rules, 2014
is already discussed before in the chapter.
CONDITION PURPORTING TO WAIVE COMPLIANCE SHALL BE VOID
[SUB-SECTION 4]
Any condition purporting to require or bind any applicant for securities to waive
compliance with any of the requirements of this section shall be void.
DEFAULT IN COMPLYING WITH PROVISIONS [SUB-SECTION 5]
If a default is made in complying with the provisions of this section, the company
shall be punishable with a fine which shall not be less than five lakh rupees but
which may extend to fifty lakh rupees and every officer of the company who is in
default shall be punishable with fine which shall not be less than fifty thousand
rupees but which may extend to three lakh rupees.
Penalty provisions provided under sub-section 5 can be summarized as:
Defaulter Minimum Fine Maximum Fine

Company 5,00,000 50,00,000
Defaulting Officer 50,000 3,00,000

PAYMENT OF COMMISSION [SUB-SECTION 6]

A company may pay commission to any person in connection with the subscription
to its securities subject to rule 13 of the Companies (Prospectus and Allotment of
Securities) Rules, 2014.
Note- No commission shall be paid to any underwriter on securities, which are not
offered to the public for subscription.
Authorisation and Source
The payment of such commission shall be authorized in the company’s Articles of

Association. The commission may be paid out of;
a. proceeds of the issue, or
b. the profit of the company, or
c. both
Rate of commission
Security Rate
Should not exceed;
5% of the price at which the shares are issued
Shares
Or
Any less rate/amount authorised by articles
Should not exceed;
2.5% of the price at which the debentures are issued
Debentures
Or
Any less rate/amount authorised by articles
Hence students are advised to note;

Maximum rate of commission can be 5% and 2.5% in case of shares and
debentures respectively subject to rate authorised by article.
Example – Ind-swift Pharma Labs Limited issued the shares to raise capital. Article
of Ind-swift authorised payment of commission at rate of 2%. Since rate of
commission should not exceed 5% of the price at which the shares are issued or

any less rate/amount authorised by articles Hence, cap for payment of commission
under section 40(6) of the Act is 2%.
Disclosure of the particulars in prospectus regarding underwriting
The prospectus of the company shall disclose the following particulars:
a. the name of the underwriters;

b. the rate and amount of the commission payable to the underwriter; and
c. the number of securities which is to be underwritten or subscribed by the
underwriter absolutely or conditionally.
Copy of payment of commission to be delivered to Registrar
A copy of the contract for the payment of commission is delivered to the Registrar
at the time of delivery of the prospectus for filling.
Illustration Q&A
The Board of Directors of a company decide to pay 5% of the issue price of shares
as underwriting commission to the underwriters. However, the Articles of Association
of the company permit only 3% commission. The Board of Directors further decide
to pay the commission out of the proceeds of the share capital. Are the decisions
taken by the Board of Directors valid under the Companies Act, 2013?
Answer – Under Rule 13 of the Companies (Prospectus and Allotment of
Securities) Rules, 2014 the rate of commission paid or agreed to be paid shall not
exceed, in case of shares, five percent (5%) of the price at which the shares are
issued or a rate authorised by the articles, whichever is less.
The same rule allows the commission to be paid out of proceeds of the issue or
the profit of the company or both.
Therefore, the decision of the Board of Directors to pay 5% commission to the
underwriters is invalid since the same cannot exceed the rate which is permitted
by the Articles. However, the decision to pay commission out of the proceeds of
the share issue is valid provided it is paid at the rate authorised by the Articles.

12. GLOBAL DEPOSITORY RECEIPT [SECTION 41]

A global depository receipt is a general name for a depository receipt where a
certificate issued by a depository bank, which purchases shares of foreign
companies, creates a security on a local exchange backed by those shares.
GDR as per section 2(44) of this Act means any instrument in the form of a
depository receipt, by whatever name called , created by a foreign depository
outside India & authorized by a company making an issue of such depository
receipts.
Section 41 provides, company may issue depository receipts in any foreign

country after passing a special resolution in its general meeting and subject to
such conditions as may be prescribed in the Companies (Issue of Global
Depository Receipts) Rules, 2014 (as further amended in 2020).
HOW GDR OPERATES?
MANNER AND FORM OF DEPOSITORY RECEIPTS

The depository receipts can be issued by way of public offering or private
placement or in any other manner prevalent in the concerned jurisdiction and may
be listed or traded on the listing or trading platform in the concerned jurisdiction.
The depository receipts may be issued against issue of new shares or may be
sponsored against shares held by shareholders of the company in accordance with

such conditions as the Central Government or Reserve Bank of India may prescribe
or specify from time to time.
The underlying shares shall be allotted in the name of the overseas depository
bank and against such shares, the depository receipts shall be issued by the
overseas depository bank.
VOTING RIGHT
A holder of depository receipts may become a member of the company and shall
be entitled to vote as such only on conversion of the depository receipts into
underlying shares after following the procedure provided in the Scheme and the
provisions of this Act.
Until the conversion of depository receipts, the overseas depository shall be
entitled to vote on behalf of the holders of depository receipts in accordance with
the provisions of the agreement entered into between the depository, holders of
depository receipts and the company in this regard.
13. PRIVATE PLACEMENT [SECTION 42]

Provisions relating to the ‘private placement’ are contained in Part II of Chapter III
of the Act, which consist of only one section i.e. section 42 – Issue of shares on
private placement basis.
A company may make private placement of securities subject to provisions of
section 42 of this Act in supplement with those stated under rule 14 of the
Companies (Prospectus and Allotment of securities) Rules, 2014.
MEANING OF PRIVATE PLACEMENT [EXPLANATION I TO SECTION 42(3)]
Private placement means any offer or invitation to subscribe or issue of securities
to a select group of persons by a company (other than by way of public offer)
through private placement offer-cum-application, which satisfies the conditions
specified in section 42.
OFFER TO BE MADE ONLY TO A SELECT GROUP OF PERSONS [SUB-SECTION 2]
A private placement shall be made only to a select group of not more than two
hundred (200) persons in a financial year, who have been identified by the Board,
after passing as special resolution in this regard.

Note:
1. These select group of persons is referred to as "identified persons"
2. While computing threshold limit of 200, following shall be excluded;
a. qualified institutional buyers and,
b. employees of the company being offered securities under a scheme of
employees stock option under section 62(1)(b)
3. As per Explanation II to sub-section 3, the term "qualified institutional
buyer" means the qualified institutional buyer as defined in the Securities
and Exchange Board of India (Issue of Capital and Disclosure Requirements)
Regulations, 2009.
4. Section 42(2) originally contains ‘fifty (50) or such higher number as may
be prescribed’. Since Rule 14 (2) of the Companies (Prospectus and
Allotment of Securities) Rules, 2014 (as amended through Companies
(Prospectus and Allotment of Securities) Second Amendment Rules, 2018)
prescribed ‘an offer or invitation to subscribe securities under private
placement shall not be made to persons more than two hundred (200)
in the aggregate in a financial year’, hence limit of identified persons
under section 42(2) shall be read as two hundred (200).
5. The aforesaid restrictions would be reckoned individually for each kind of
security that is equity share, preference share or debenture.
6. Non-banking financial companies (NBFCs) which are registered with the
Reserve Bank of India; and housing finance companies (HFCs) which are
registered with the National Housing Bank; if they are complying with any
regulations made by the Reserve Bank of India or the National Housing Bank in
respect of offer or invitation to be issued on private placement basis, then need
not to comply with rule 14(2) stated above.
PRIVATE PLACEMENT SHALL BE DEEMED TO BE AN OFFER TO THE PUBLIC

[EXPLANATION III TO SECTION 42(3) READ WITH SUB-SECTION 11 TO
SECTION 42)]
As per explanation III to section 42(3), if a company, listed or unlisted, makes an
offer to allot or invites subscription, or allots, or enters into an agreement to allot,
securities to more than 200 identified persons, whether the payment for the

securities has been received or not or whether the company intends to list its
securities or not on any recognised stock exchange in or outside India, the same
shall be deemed to be an offer to the public and provisions contained in section
23 to 41 shall apply.
Further section 42(11) provides, in such case all the provisions of this Act and the
Securities Contracts (Regulation) Act, 1956 and the Securities and Exchange Board
of India Act, 1992 shall be applicable.
Though penalty under sub-section 9 and 10 to section 42 of this Act, still can be
imposed.
MANNER OF ISSUING PRIVATE PLACEMENT OFFER AND APPLICATION [SUB-
SECTION 3]
A company making private placement shall issue private placement offer and
application to identified persons (whose names and addresses are recorded by
the company) in the form and manner prescribed below.
Note: Private placement offer and application shall not carry any right of
renunciation.
Resolution for the Private Placement Offers

requires prior approval of the shareholders of the company, by a special
resolution for each of the private placement offers or invitations. The
explanatory statement annexed to the notice for shareholders' approval, must
disclose the following;
a. Particulars of the offer including date of passing of Board resolution;
b. Kinds of securities offered and the price at which security is being offered;
c. Basis or justification for the price (including premium, if any) at which the
offer or invitation is being made;
d. Name and address of valuer who performed valuation;
e. Amount which the company intends to raise by way of such securities;
f. Material terms of raising such securities, proposed time schedule, purposes
or objects of offer, contribution being made by the promoters or directors
either as part of the offer or separately in furtherance of objects; principle
terms of assets charged as securities.

Students are advised to take note of certain exceptions above rule;

Board resolution under section 179(3)(c) shall be adequate in case of offer or
invitation for non-convertible debentures, where the proposed amount to be
raised does not exceed the limit as specified in section 180(1)(c). But if amount
is above the said limit, it shall be sufficient if the company passes a previous
special resolution only once in a year for all the offers or invitations for such
debentures during the year.
Even for issue of securities to QIBs, it shall be sufficient to pass a previous special
resolution only once in a year for all the offers or invitations for all the allotments
to such buyers during the year.
Filing of Resolution with Registrar

Copy of resolutions passed above shall be moved to registrar prior to issue of
private placement offer cum application letter.
Note: Vide Companies (Prospectus and Allotment of Securities) Amendment

Rules, 2022 the principal rules of 2014 further amended to insert a proviso to Rule
14(1) which deals with Private Placement.
The proviso states that when a company makes an offer or invitation to subscribe
to securities, no offer or invitation of any securities shall be made to a body
corporate incorporated in, or a national of, a country which shares a land border
with India, unless such body corporate or the national, as the case may be, have
obtained Government approval under the FEMA 29 Rules, 2019 and attached the
same with the private placement offer cum application letter.
This means that companies will now have to obtain government approval under
the FEMA Rules before inviting subscription to securities or offering securities to
any entity from a country that shares a land border with India i.e. China, Bhutan,
Nepal, Pakistan, Bangladesh, and Myanmar.
Applicable Application Form

provides a private placement offer cum application letter shall be;
29
FEM (Non-debt Instruments) Rules, 2019

a. Issued in form PAS-4
b. Serially numbered
c. Addressed specifically to the person to whom the offer is made
d. Sent either in writing or in electronic mode
e. Sent within thirty days of recording the name of such person pursuant to
section 42 (3).
Note:
1. No person other than the person so addressed in offer-cum-application
letter, allowed to apply through such application form.
2. Any application not conforming to this condition shall be treated as invalid.
Maintaining Complete Records

requires the company to maintain a complete record of private placement offers
in Form PAS-5.
MANNER OF SUBSCRIBING TO THE PRIVATE PLACEMENT ISSUE
[SUB-SECTION 4]
Person who is identified and provided with private placement application cum
letter, if willing to subscribe securities in the private placement, then may apply in
through same letter along with subscription money.
Note:
1. Subscription money shall be paid either by cheque or demand draft or other
banking channel, but not by cash.
2. Rule 14(5) of the Companies (Prospectus and Allotment of Securities) Rules,
2014, Payment shall be made from the bank account of the person
subscribing to such securities and the company shall keep the record of the
bank account from where such payment for subscription has been received.
3. First proviso to rule 14(5) state above, provides that; in case of joint holders,
monies payable on subscription to securities shall be paid from the bank
account of the person whose name appears first in the application.

4. Company shall not utilise monies raised through private placement unless
allotment is made and the return of allotment is filed with the Registrar in
accordance with sub-section (8) of Section 42.
Illustration Q&A
Ruhi and her brother Sohit were offered jointly 1000 equity shares of ` 100 each by
Soumya Software Private Limited under the issue of shares on private placement
basis. Offer-cum-application letter addressed to both containing their names as “Ms.
Ruhi, Mr. Sohit”. From whose account the company is required to take subscription
money for 1000 equity shares?
Answer – According to the first Proviso of Rule 14 (5) of the Companies
(Prospectus and Allotment of Securities) Rules, 2014, monies payable on
subscription to securities to be held by joint holders shall be paid from the bank
account of the person whose name appears first in the application. Since Ruhi’s
name appears first in the application, therefore the subscription of ` 1,00,000 shall
be payable by her from her account. It is obligatory for the company to ensure
that the money is paid from her bank account and not from the bank account of
her brother Sohit.
LIMIT ON FRESH OFFER [SUB-SECTION 5]
No fresh offer or invitation under this section shall be made unless the allotments
with respect to any offer or invitation made earlier have been completed or that
offer or invitation has been withdrawn or abandoned by the company.
Proviso to sub-section 5 read as, subject to the maximum number of identified
persons (i.e. 200), a company may, at any time, make more than one issue of
securities to such class of identified persons as may be prescribed.
TIME LIMIT FOR ALLOTMENT OF SECURITIES [SUB-SECTION 6]
A company making an offer or invitation under this section shall allot its securities
within sixty days from the date of receipt of the application money.
1. If company fails to make allotment within 60 days, then repayment of the

application money to the subscribers shall be made within fifteen days from
the expiry of sixty days
2. If the company further fails to repay the application money within the 60
days, then it shall be liable to repay that money with interest at the rate of
twelve percent per annum from the expiry of the sixtieth day.

It is provided that the monies received on application under this section shall be
kept in a separate bank account in a scheduled bank and shall not be utilised for
any purpose other than;
a. For adjustment against allotment of securities; or
b. For the repayment of monies where the company is unable to allot securities.
PROHIBITION ON PUBLIC ADVERTISEMENT [SUB-SECTION 7]
No company shall release any public advertisements or utilise any media,
marketing or distribution channels or agents to inform the public at large about
issue under section 42.
FILING OF RETURN OF ALLOTMENT [SUB-SECTION 8]
Section 42(8) read with Rule 14 (6) of the Companies (Prospectus and Allotment
of Securities) Rules, 2014 provides, a return of allotment in form PAS-3 (along-with
the fee as provided in the Companies (Registration Offices and Fees) Rules, 2014)
shall be filed with the Registrar within fifteen days from the date of the allotment
under section 42, with a complete list of all the allottees containing;
a. the full name, address, Permanent Account Number and E-mail ID of such
security holder;
b. the class of security held;
c. the date of allotment of security;
d. the number of securities held, nominal value and amount paid on such
securities, and particulars of consideration received if the securities were
issued for consideration other than cash.
DEFAULT IN FILING THE RETURN OF ALLOTMENT [SUB-SECTION 9]
For defaults in filing the return of allotment, the company, its promoters and
directors shall be liable to a penalty for each default of one thousand rupees for
each day during which such default continues but not exceeding twenty-five lakh
rupees.
Example – An allotment of security under private placement (section 42) was
completed on 9th November 2022. Return of allotment in Form PAS-3 filed on 28th
November 2022. Therefore, a penalty of ` 4000 shall be imposed on company, its
promoter and directors.

PUNISHMENT FOR CONTRAVENING THE PRIVATE PLACEMENT

PROVISIONS [SUB-SECTION 10]
For making offer or accepting money in contravention to section 42, liability will
be:
Liable Nature of Description
penalty
Promoters and Fine Amount raised through the private placement
Directors or
two crore rupees,
whichever is lower
Company Refund All monies along-with interest (as specified in
sub-section 6) to subscribers within a period
of thirty days of the order
SUMMARY
♦ Securities can be offered to public at large (public offer) or through private
placement. However, a private company is prohibited from resorting to
public offer.
♦ SEBI has power to deal with matters relating to listed or proposed to be
listed securities. Central Government (through MCA represented by Regional
Directors and ROCs) has power to deal with matters relating to unlisted
securities.
♦ Prospectus, deemed prospectus, abridged prospectus, red-herring
prospectus, shelf prospectus, information memorandum need to comply
with the minimum information requirements as prescribed in the Companies
Act, 2013 and the applicable Rules.
♦ Existing holders of securities could offload their stake through required
compliances for an offer for sale of securities to the public (OFS route).
♦ Fraudulent omission or commission in the prospectus attracts civil as well as
criminal liability.
♦ Issue of securities (shares, debentures or hybrid securities) through public
offer is to be made only in demat form by the companies which are not
exempted.

♦ Provision related to timelines, pre-requisites for allotment and listing

wherever applicable needs to strictly adhered to avoid any penal provision.
♦ Private placements have somewhat diluted disclosure requirements as public
exposure is not there.
TEST YOUR KNOWLEDGE

1. Trident Limited is in process of making private placement of securities. It
received application money on 2nd March 2023. It shall allot its securities by
_________, if failed then repay application money to the subscribers by ________,
else liable to repay that money with interest at the rate of _____________.
(a) 1st April, 16th April, and 12% respectively
(b) 1st May, 16th May, and 12% respectively
(c) 1st April, 16th April, and 6% respectively
(d) 16th April, 1st May, and 12% respectively

2. Modern Furniture Limited, issued a document containing offer of securities for
sale that is considered as deemed prospectus under section 25, which requires
such document must contains certain matters/disclosures in addition to those
required under section 26. Which of following are correct requirements;
i. A statement of the net amount received or to be received as consideration
for the securities to which the offer relates
ii. The persons making the offer were named in the prospectus as promoters
of the company.
iii. The time and place at which the underlying contract for allotment may be
inspected.
(a) i or ii only
(b) i or iii only

(c) ii or iii only
(d) All of i, ii and iii

3. Section 40 of the Companies Act, 2013 requires every company shall make an
application to one or more recognised stock exchange or exchanges before
making public offer. Madhav Casting Limited filed an application to three
exchanges for the securities to be dealt with in such stock exchanges, it received
permission from couple of them and proceed with public issue. There will be:
(a) No penalty, as application has been filed
(b) Penalty on Madhav Casting Limited ranging from ` 5 lakh to ` 50 lakh
(c) Penalty on Madhav Casting Limited ranging from ` 5 lakh to ` 50 lakh and
every officer of the company who is in default ranging from ` 50 thousand
to ` 3 lakh
(d) Penalty on Madhav Casting Limited ranging from ` 5 lakh to ` 50 lakh and
every officer of the company who is in default ranging from ` 50 thousand
to ` 3 lakh and/or Imprisonment upto one year.
4. Rig exploration and refinery limited (RERL) decided to raise capital through issue
of a shelf prospectus. Company secretary explains the requirement to board that
RERL shall be required to file an information memorandum with the Registrar
within______________, prior to the issue of a second or subsequent offer of securities
under the shelf prospectus.
(a) 15 days
(b) 21 days
(c) 30 days
(d) 1 month
5. Modern Furniture decided to raise capital by issue for which prospectus need to
be issued. The copy of prospectus submitted with registrar for filling need to be
duly signed by:
(a) Any two directors including managing directors

(b) Majority of directors
(c) Majority of directors including proposed directors
(d) Every director or proposed director

1. Explain various instances which make the allotment of securities as irregular
allotment under the Companies Act, 2013.
2. What is a Shelf-Prospectus? State the important provisions relating to the

issuance of Shelf-Prospectus under the provisions of the Companies Act, 2013
and the Companies (Prospectus and Allotment of securities) Rules, 2014.
3. The Board of Directors of Chandra Mechanical Toys Limited proposes to issue

a prospectus inviting offers from the public for subscribing to the equity shares
of the Company. State the reports which shall be included in the prospectus
for the purposes of providing financial information under the provisions of the
4. Unique Builders Limited decides to pay 2.5 percent of the value of debentures
as underwriting commission to the underwriters but the Articles of the
company authorize only 2.0 percent underwriting commission on debentures.
The company further decides to pay the underwriting commission in the form
of flats. Examine the validity of the above arrangements under the provisions
of the Companies Act, 2013.
5. PQR Bakers Limited wants to raise funds for its upcoming project. Accordingly,
it has issued private placement offer letters for issuing equity shares to 55
persons, of which four are qualified institutional buyers and remaining are
individuals. Before the completion of allotment of equity shares under this
offer letter, company issued another private placement offer letter to another
155 persons in their individual names for issue of its debentures.
Being a public company is it possible for PQR Bakers Limited to issue securities
under a private placement offer? By doing so, whether the company is in
compliance with provisions relating to private placement or should these offers
be treated as public offers? What if the offer for debentures is given after
allotment of equity shares but within the same financial year?
6. How does the Companies Act, 2013 regulate and restrict the following matters
in respect of a company going for public issue of shares:
(i) Minimum Amount stated in the Prospectus; and
(ii) Application Money payable on shares.

7. Examine the validity of the following statement with reference to the

provisions of the Companies Act, 2013.
The Articles of Association of X Limited contained a provision that the
underwriting commission may be paid up to 4% of the issue price of the shares.
However, the Board of Directors have decided to pay the underwriting
commission of 5% to Deal & Co., the underwriters."
ANSWERS
1. (b) 1st May, 16th May, and 12% respectively
2. (b) i or iii only
3. (c) Penalty on Madhav Casting Limited ranging from ` 5 lakh to

` 50 lakh and every officer of the company who is in default
ranging from ` 50 thousand to ` 3 lakh.
4. (d) 1 month
5. (d) Every director or proposed director

1. Irregular allotment: The Companies Act, 2013 does not specifically provide
for the term “Irregular Allotment” of securities. Hence, we have to examine
the requirements of a proper issue of securities and consider the
consequences of non- fulfillment of those requirements.
In broad terms, an allotment of shares is deemed to be irregular when it has
been made by a company in violation of Sections 23, 26, 39 or 40. Irregular
allotment therefore arises in the following instances:
1. Where a company does not issue a prospectus in a public offer as
required by section 23; or
2. Where the prospectus issued by the company does not include any of
the matters required to be included therein under section 26 (1), or the
information given is misleading, faulty and incorrect; or

3. Where the prospectus has not been filed with the Registrar for filing
under section 26 (4); or
4. The minimum subscription as specified in the prospectus has not been
received in terms of section 39; or
5. The minimum amount receivable on application is less than 25% of the

nominal value of the securities offered or lower than the amount
prescribed by SEBI in this behalf; or
6. In case of a public issue, approval for listing has not been obtained
from one or more of the recognized stock exchanges under section 40
2. As per explanation to section 31, the expression “shelf prospectus” means
a prospectus in respect of which the securities or class of securities included
therein are issued for subscription in one or more issues over a certain
period without the issue of a further prospectus.
A company is required to issue a prospectus each time it accesses the capital
market. It leads to unnecessary repetition for a company which makes more
than one offer of securities in a year to mobile funds from the public. A
way out is shelf prospectus which remains valid (on the shelf) a specified
time period during which offers for securities may be made by a company
to the public without going through the arduous exercise of issuing fresh
prospectus every time.
1. Filing of shelf prospectus with the Registrar
Shelf prospectus may be filled with the Registrar at the stage of first
offer of securities, by class or classes of companies as the Securities
and Exchange Board may provide by regulations in this behalf.
It has to indicate a period not exceeding one year as the period of
validity of such shelf prospectus.
The period of validity is to commence from the date of opening of
the first offer of securities under such prospectus.
In respect of any second or subsequent offer of such securities issued
during the period of validity of such prospectus, no further
prospectus is required.

2. Filing of ‘Information Memorandum’ with the Shelf Prospectus
A company filing a shelf prospectus shall be required to file an

information memorandum with the Registrar within the prescribed
time, prior to the issue of a second or subsequent offer of securities
under the shelf prospectus containing;
a. All material facts relating to new charges created,
b. Changes in the financial position of the company as have
occurred between the first offer of securities or the previous offer
of securities and the succeeding offer of securities, and
c. Such other changes as may be prescribed,
The information memorandum shall be prepared in Form PAS-2 and filed

with the Registrar along with the fee as provided in the Companies
(Registration Offices and Fees) Rules, 2014 within one month prior to
the issue of a second or subsequent offer of securities under the shelf
prospectus.
3. Safeguard (in case of changes) to applicants who made payment
in advance.
It is provided that where a company or any other person has received
applications for the allotment of securities along with advance
payments of subscription before the making of any such change, the
company or other person shall intimate the changes to such applicants
and if they express a desire to withdraw their application, the company
or other person shall refund all the monies received as subscription
within fifteen days thereof.
4. Information Memorandum together with Shelf Prospectus is

deemed Prospectus
Where an information memorandum is filed, every time an offer of
securities is made under sub-section (2), such memorandum together
with the shelf prospectus shall be deemed to be a prospectus.
3. As per section 26(1) of the Companies Act, 2013, every prospectus issued by
or on behalf of a public company either with reference to its formation or
subsequently, or by or on behalf of any person who is or has been engaged

or interested in the formation of a public company, shall be dated and signed

and shall state such information and set out such reports on financial
information as may be specified by the Securities and Exchange Board in
consultation with the Central Government.
It is provided that until the Securities and Exchange Board specifies the
information and reports on financial information under this sub-section, the
regulations made by the Securities and Exchange Board under the Securities
and Exchange Board of India Act, 1992, in respect of such financial
information or reports on financial information shall apply.
According to clause (c) of Section 26 (1), the prospectus shall make a
declaration about the compliance of the provisions of the Companies Act,
2013 and a statement to the effect that nothing in the prospectus is contrary
to the provisions of this Act, the Securities Contracts (Regulation) Act, 1956
and the Securities and Exchange Board of India Act, 1992 and the rules and
regulations made thereunder.
Accordingly, the Board of Directors of Chandra Mechanical Toys Limited
which proposes to issue the prospectus shall provide such reports on
financial information as may be specified by the Securities and Exchange
Board in consultation with the Central Government to comply with the above
stated provisions and make a declaration about such compliance.
4. Section 40 (6) of the Companies Act 2013, provides that a company may pay
commission to any person in connection with the subscription to its
securities, subject to a number of conditions which are prescribed under the
Companies (Prospectus and Allotment of Securities) Rules, 2014. In relation to
the case given, the conditions applicable under the above Rules are as under:
(a) The payment of such commission shall be authorized in the company’s
articles of association;
(b) The commission may be paid out of proceeds of the issue or the profit
of the company or both;
(c) The rate of commission in case of debentures, shall not exceed two
and a half per cent (2.5%) of the price at which the debentures are
issued, or as specified in the company’s articles, whichever is less.
Thus, the underwriting commission in case of debentures is limited to 2.5%.

In view of the above, the decision of Unique Builders Limited to pay

underwriting commission exceeding 2% as prescribed in the Articles, is
invalid.
The company may pay the underwriting commission in the form of flats since
there is no prohibition on payment of underwriting commission in kind.
Further, in case of Booth v New Africander Gold Mining Co., it was held that
underwriting commission may be paid in cash or in kind or in lump sum or
by way of a percentage.
5. According to section 42 of the Companies Act, 2013 any private or public

company may make private placement through issue of a private placement
offer letter.
However, the offer shall be made to the persons not exceeding fifty or such
higher number as may be prescribed, in a financial year. For counting
number of persons, Qualified Institutional Buyers (QIBs) and employees of
the company being offered securities under a scheme of employees’ stock
option will not be considered.
Further, Rule 14 (2) of the Companies (Prospectus and Allotment of Securities)

Rules, 2014 prescribes maximum of 200 persons who can be offered
securities under the private placement in a financial year, though this limit
should be counted separately for each type of security.
It is to be noted that if a company makes an offer or invitation to more than

the prescribed number of persons, it shall be deemed to be an offer to the
public and accordingly, it shall be governed by the provisions relating to
prospectus.
Also, a company is not permitted to make fresh offer under this section if
the allotment with respect to any offer made earlier has not been completed
or otherwise, that offer has been withdrawn or abandoned by the company.
This provision is applicable even if the issue is of different kind of security.
Any offer or invitation not in compliance with the provisions of this section
shall be treated as a public offer and all provisions will apply accordingly.
In the given case PQR Bakers Limited, though a public company but the
private placement provisions allow even a public company to raise funds
through this route. The company has given offer to 55 persons out of which

4 are qualified institutional buyers and hence, the offer is given effectively
to only 51 persons which is well within the limit of 200 persons. From this
point of view, the company complies the private placement provisions.
However, as per the question, the company has given another private
placement offer of debentures before completing the allotment in respect
of first offer and therefore, the second offer does not comply with the
provisions of section 42. Hence, the offers given by the company will be
treated as public offer.
In case the company gives offer for debentures in the same financial year
after allotment of equity shares is complete then both the offers can well be
treated as private placement offers.
6. The Companies Act, 2013 by virtue of the provisions as contained in Section
39 (1) and (2) regulates and restricts the minimum amount stated in the
prospectus and the application money payable in a public issue of shares as
under:
Minimum amount stated in a prospectus
No Allotment shall be made of any securities of a company offered to the
public for subscription; unless; -
(i) the amount stated in the prospectus as the minimum amount has been
subscribed; and
(ii) the sums payable on application for such amount has been paid to and
received by the company.
Application money
Section 39 (2) provides that the amount payable on application on each
security shall not be less than 5% of the nominal amount of such security or
such amount as SEBI may prescribe by making any regulations in this
behalf.
Further section 39 (3) provides that if the stated minimum amount is not
received by the company within 30 days of the date of issue of the
prospectus or such time as prescribed by SEBI, the company will be required
to refund the application money received within such time and manner as
may be prescribed.

Rule 11 (1) of the Companies (Prospectus and Allotment of Securities) Rules,

2014 mentions that if the stated minimum amount has not been subscribed
and the sum payable on application is not received within the period
specified therein, then the application money shall be repaid within a period
of fifteen days from the closure of the issue and if any such money is not so
repaid within such period, the directors of the company who are officers in
default shall jointly and severally be liable to repay that money with interest
at the rate of fifteen percent per annum.
In case of any default, the company and its officer who is in default shall be
liable to a penalty, for each default, of one thousand rupees for each day
during which such default continues or one lakh rupees, whichever is less.
7. Section 40 (6) of the Companies Act 2013, provides that a company may pay
commission to any person in connection with the subscription to its
securities, subject to the conditions prescribed under the Companies
(Prospectus and Allotment of Securities) Rules, 2014. Rule 13 states that the
rate of commission paid or agreed to be paid shall not exceed, in case of
shares, five percent (5%) of the price at which the shares are issued or a rate
authorised by the articles, whichever is less.
In the given problem, the Articles of X Ltd. have prescribed 4% underwriting
commission but the directors decided to pay 5% underwriting commission.
Therefore, the decision of the Board of Directors to pay 5% underwriting
commission to the underwriters (i.e. Deal & Co.), is invalid.

CHAPTER a
4
SHARE CAPITAL
AND DEBENTURES
LEARNING OUTCOMES

 Know about the Kinds of Share Capital
 Explain the basic requirements for issue of Share Certificates,
Voting Rights and Variation of Shareholders’ Rights
 Explain Calls on Unpaid Shares
 Know about the Time Period permitted for delivery of
Certificates of Securities
 Understand the application of Securities Premium Amount
 Identify prohibition on issue of Shares at a Discount
 Understand the issue of Sweat Equity Shares, Issue and
Redemption of Preference Shares and creation of Capital
Redemption Reserve Account
 Know about the Transfer and Transmission of Securities,
Refusal to Register and Appeal against Refusal

 Explain the concepts relating to the Alteration of Share

Capital and Notice to Registrar thereof
 Understand the concept relating to Further issue of Share
Capital
 Know about the issue of Bonus Shares, Reduction of Share
Capital, Buy-Back of Shares and applicable restrictions
thereon
 Know about issue of Debentures and creation of Debenture
Redemption Reserve Account
 Identify the Punishments and penalties for various offences
including impersonation.

SHARE CAPITAL AND DEBENTURES 4.3
a
CHAPTER OVERVIEW
W
This chapter explains the provisions contained in Chapter IV (comprising Section

43 to 72) of the Companies Act 2013 (hereinafter referred to as the Act or this Act)
regarding the ‘Share Capital and Debentures’, along with relevant procedural
aspects explained in the Companies (Share Capital and Debentures) Rules, 2014.
Share Capital and Debentures

(Sections 43-72)
Concepts relating to Shares

Concepts relating to Debentures
(Sections 43-70)
(Section 71)
1. INTRODUCTION
Chapter IV Consists of sections 43 to 72 as well as the Companies (Share
Capital and Debentures) Rules, 2014.
Finance, the lifeblood for running the affairs of a company, can be raised, inter-alia,
by issuing shares and debentures. In fact, shares and debentures are financial
instruments which help in arranging funds for the company. Under the Companies
Act, 2013, they are jointly referred to as “securities”.
Shares represent ownership interest in a company with entrepreneurial risks and
rewards whereas debentures depict lenders’ interest in the company with limited
risks and returns.
Sometimes, after the issue of capital, a company may either alter or reduce the
share capital depending upon the exigencies of the situation. The company has to
follow the requisite provisions for alteration or reduction of share capital.

Both the shares and debentures are presented in the Balance Sheet on the liabilities
side of the issuer company and on the assets side of the investor and lender
respectively.
Legal provisions relating to these instruments are covered under Chapter IV of the
Companies Act, 2013 (comprising sections 43 to 72) and the Companies (Share
Capital & Debentures) Rules, 2014 as amended from time to time along with
endorsement in the company formation documents or approved at the suitable
company forum, wherever necessary.
2. SHARE CAPITAL-TYPES
WHAT ARE SHARE AND STOCK?
Share – Definition & Description
Section 2(84) of the Act defines share as a share in the share capital of a company
and includes stock.
Capital of a company is termed as share capital, which is divided into units; having
a certain face value. Each such unit is termed as share.
New London & Brazilian Bank v. Brockle Bank 1
A share is not a sum of money..., but is an interest measured in a sum of money,

and made up of various rights, contained in the contract, including the right to a
sum of money of a more or less amount.
Around two decade later, J. Farwell in landmark case of Borland’s Trustee v Steel
Brothers & Co Ltd2 place his trust in the opinion stated above, and observe that
share is the interest of a shareholder in the company measured by a sum of money,
for the purpose of liability in the first place and of interest in the second, and also
consists of a series of mutual covenants entered into by all the shareholders inter
se in accordance with the provisions of the Companies Act and the Articles of
Association.
1
(1882) 21 Ch D 302 (F)
2
(1901) 1 Ch 279

a
Example 1 - Sun Bakers Limited has authorised share capital of ` 50.00 lakh. The
face value of each unit of capital or ‘share’ is ` 10. In this case, it can be said that
the company has 5.00 lakh shares of ` 10 each. When these shares (either in part
or whole) are allotted to various persons, they, on the date of allotment, become
shareholders of the company.
Note: Company limited by share or those which having share capital has to quote
in their memorandum - The share capital of the capital is _ _ _ _ _ rupees, divided
into _ _ _ _ _ shares of _ _ _ rupees each.
Stock - Description
The definition of ‘share’ states that the term ‘share’ includes ‘stock’. If a company
undertakes to aggregate the fully paid up shares of various members as per their
requests and merge those shares into one fund, then such fund is called ‘stock’. In
more simple words we can say that ‘stock’ is a collection or bundle of fully paid-
up shares.
Section 61 (1) (c) of the Act, empower a limited company having a share capital to
convert all or any of its fully paid-up shares into stock, and reconvert that stock
into fully paid-up shares of any denomination.
Students are advised to take note of - What make stock different?

Stock is stated in lump sum whereas a ‘share’ being the smallest unit is having face
value. Originally shares are issued to the shareholders while in case of stock, the
fully paid-up shares of the members are converted into ‘stock’ afterwards. Thus,
‘stock’ is not issued originally but is obtained by conversion of fully paid-up shares.
KINDS OF SHARE CAPITAL [SECTION 43]

Broadly, there are two kinds of share capital of a company limited by shares; Equity
share capital and Preference share capital. Equity Share capital can be further
segregated into two categories based upon rights. Following diagram depicts kinds
of share capital;

Kinds of share capital
Equity share capital Preference share capital
with differential carries preferential right

rights as to w.r.t. payment of dividend
with voting rights and repayment of capital at
dividend, voting or
otherwise time of winding up
Preference Share Capital [explanation II to section 43]

Preference share capital is that part of issued share capital of any company limited
by shares which carries preferential right in respect to;
a. Payment of dividend, may be absolute amount or at fixed rate (which may

either be free of or subject to income-tax); and
b. Repayment of capital, in the case of winding up or repayment of capital.
This preference exists only up to amount paid up or deemed to have been
paid up on the shares, unless there is an agreement in contrary to this.
Example 2 – Ind-swift Pharma Labs Limited and Panacea Biotec Limited issued
preference share.
Ind-swift Pharma provides that the preferential dividend may be a fixed amount
say ` 5,00,000 in one year, payable to preference shareholders before anything is
paid to the ordinary shareholders.
Whereas the Panacea Biotec provides that the amount payable as preferential
dividend may be calculated at a fixed rate @ 8 percent of the nominal value of
each share.

a
Note:
1. Nothing contained in this Act shall affect the rights of the preference
shareholders who are entitled to participate in the proceeds of winding up before
the commencement of this Act.
2. Preference shareholders may also participate in equity pool post the
preferential entitlements.
But to find out their rights of participation we must look within the four corners of
the articles of association and the terms of the issue.
If the right to participate in the surplus is not specified in the terms of the issue,
preference shares are presumed to be not participating. This was affirmed by the
House of Lords in Scottish Insurance Corpn Ltd vs. Wilsons & Clyde Coal Co Ltd 3
3. Preference shares are always presumed to be cumulative and the accumulation
of dividend can be excluded only by a clear provision in the articles of association 4
Illustration – Q&A
Can a company have only preference share capital?
Answer – It may be noted that while a company may have only equity share capital
but it cannot have only preference share capital. This is because preference
shareholders have certain ‘preferential rights’ over the equity shareholders.
Thus, in the absence of equity share capital, there cannot be preferential share capital5
Equity Share Capital [Section 43(a) read with explanation I to section 43]
Shares capital which are not preference shares capital are termed as equity shares
capital. Equity share capital are further classified as;
a. Equity share with voting right (Plain vanilla, because equitable/same voting
rights) or
b. Equity share with differential rights with respect to dividend or voting rights
or otherwise in accordance with Rule 4 of the Companies (Share capital and
Debenture) Rules, 2014.
3
1949 AC 462 HL
4
Staples v Eastman Photographic Materials Co (1896)
5
Bihar State Financial Corporation vs. CIT Bihar (1976)

Equity shares are often referred as to ordinary share and sometime as common
share
Equity Shares with Differential Rights [Rule 4 of the Companies (Share

capital and Debenture) Rules, 2014]
I. Conditions to issue shares with differential rights
As per sub-rule 1, A company limited by shares may issue equity shares with
differential rights as to dividend, voting or otherwise, if it complies with the
following conditions:
a. The articles of association of the company authorizes the issue of these
shares.
b. Approval of the shareholders is obtained by passing of ordinary resolution
at the general meeting. A listed public company is required to pass the
resolution through postal ballot
c. The voting power in respect of shares with differential rights of the company
shall not exceed Seventy Four 6 percent of total voting power at any point of
time
d. The company has not defaulted in filing annual accounts and annual
returns for the 3 financial years preceding the year in which it was decided
to issue such shares
e. The company has not defaulted in the payment of declared dividend,
interest, or coupon; redemption of preference shares or debenture; or
repayment of matured deposits.
f. The company has not defaulted in the
1. Payment of dividend on preference shares, or
2. Payment of interest or Repayment of any term loan from a Public
Financial Institution (PFI) or State-level Financial Institution (SFI) or
Scheduled Bank.
3. Repayment of any term loan from a PFI or SFI or Scheduled Bank.
4. Statutory dues relating to its employees
5. Crediting the amount in Investor Education and Protection Fund
6
W.e.f. 16th August 2019 through G.S.R. 574(E) (Note - Earlier limit was 26%)

a
Note:
A company may issue equity shares with differential rights upon expiry of five
years from the end of the financial year in which default mentioned in point f
stated above, was made good7
g. the company has not been penalized by Court or Tribunal during the last
three years of any offence under
1. Reserve Bank of India Act, 1934 8,
2. Securities and Exchange Board of India Act, 1992 9,
3. Securities Contracts Regulation Act, 1956 10,
4. Foreign Exchange Management Act, 1999 11 or
5. Any other special Act, under which such companies being regulated by
sectoral regulators.
Note:
1. Equity shares with differential rights issued by any company under the
provisions of the Companies Act, 1956 12 and the rules made thereunder, shall
continue to be regulated under such provisions and rules. 13
2. Here it is also worth noting that; before the amendment made in year 2000,
to the Companies Act 195614, the shares with differential voting rights were
not permitted to be issued. Though such differential voting rights existed
prior to the enactment of the Companies Act 1956 15.
II. Contents of Explanatory statement (annexed to notice)

Sub-Rule 2 provides the explanatory statement annexed to the notice of the
general meeting or of a postal ballot shall contains various matters like particulars
7
Inserted w.e.f. 19th July 2016 though G.S.R. 704(E) - Companies (Share Capital and
Debentures) Third Amendment Rules, 2016
8
Act 2 of 1934
9
Act 15 of 1992
10
Act 42 of 1956
11
Act 42 of 1999
12
Act 1 of 1956
13
W.e.f 18th June 2014, inserted though G.S.R. 413.(E). - Companies (Share Capital and
Debentures) Amendment Rules, 2014 after Rule 4(6).
14
Supra note 15
15
ibid

of the issue including its size, details of differential rights, etc.
III. Prohibition on Conversion

Sub-Rule 3 prohibit the conversion of existing equity share capital with voting rights
into equity share capital carrying differential voting rights and vice versa.
IV. Disclosure in the Board’s Report

Sub-Rule 4 requires, the Board of Directors to disclose the specified particulars, in
the Board’s Report for the financial year in which the issue of equity shares with
differential rights was completed.
V. Rights to the holders of the equity shares with differential rights
Sub-rule 5 states that subject to the differential rights, the holders of the equity
shares with differential rights shall enjoy all other rights such as bonus shares, rights
shares, etc., which the holders of equity shares are entitled to.
VI. Particulars of shares to be maintained in the register of members
Sub-rule 6 provides that where a company issues equity shares with differential
rights, the Register of Members maintained under section 88 shall contain all
the relevant particulars of the shares so issued along with details of the
shareholders.
Section 43 shall not apply to:

1. Specified IFSC Public Company, where memorandum of association or
articles of association of such company provides for it. 16
2. Private company, where memorandum or articles of association of the
private company so provides; however, this exemption shall be available to
only that private company which has not committed a default in filing its
financial statements under section 137 or annual return under section 92
with the Registrar.17
16
GSR 8 (E), dated 4th January, 2017
17
GSR 464 (E), dated 5th June, 2015 as amended by GSR 583 (E), dated 13 th June, 2017

a
3. CERTIFICATE OF SHARES [SECTION 46]

PRIMA FACIE EVIDENCE OF TITLE
Shares Issued and held in physical form
As per sub-section 1, a certificate specifying the shares held by any person, shall
be prima facie evidence of the title of the person to such shares if issued;
a. Under the common seal if any of the company or
b. Signed by two directors or
c. Signed by a director and the Company Secretary, wherever the company has
appointed a Company Secretary
Note:
1. Since w.e.f. 29-05-2015 though Companies Amendment Act 2015,

requirement to have common seal is optional for companies, hence physical
share certificate issued under sign of two director or of one director along
with company secretary is valid.
2. If the composition of the Board permits of it, at least one of the aforesaid two
directors shall be a person other than the managing or whole-time director
3. A director shall be deemed to have signed the share certificate if his signature
is printed thereon as a facsimile signature by means of any machine,
equipment or other mechanical means such as engraving in metal or
lithography, or digitally signed, but not by means of a rubber stamp, provided
that the director shall be personally responsible for permitting the affixation
of his signature thus and the safe custody of any machine, equipment or other
material used for the purpose.
Shares held in Depository Form
As per sub-section 4, where a share is held in depository form, the record of the
depository is the prima facie evidence of the interest of the beneficial owner.

Requirement regarding securities issued in Dematerialised form, can be referred in

Rule 9 and Rule 9A of the Companies (Prospectus and Allotment of Securities) Rules,
2014.
Rule 9A was inserted by the Companies (Prospectus and Allotment of Securities)

Third Amendment Rules, 2018, w.e.f. 2-10-2018 and requires every unlisted public
company to issue the securities only in dematerialised form and also facilitate
dematerialisation of all its existing securities.
ISSUE OF RENEWED/DUPLICATE SHARE CERTIFICATE [SUB-SECTION 2

READ WITH RULE 6 OF THE COMPANIES (SHARES AND DEBENTURES)
RULES, 2014]
Issue of renewed certificate
A case wherein originally issued share certificate has been defaced, mutilated or
torn, a renewed share certificate in replacement shall be issued, in lieu of surrender
of such original certificate, to the company.
Note:
1. A company may replace all the existing certificates by new certificates upon
sub-division or consolidation of shares or merger or demerger or any
reconstitution without requiring old certificates to be surrendered
2. On renewed certificate it shall be stated that it is “Issued in lieu of share

certificate No..... sub-divided/replaced/on consolidation”
3. Company may charge such a fee as board may think fit, but not exceeding
` 50 per certificate; and no fee shall be payable pursuant to scheme of
arrangement sanctioned by the High Court or Central Government.
Issue of duplicate certificate
A case wherein share certificate originally issue has been lost or destroyed, a share
certificate in duplicate may be issued if board is consented for the same based
upon evidences produced.

a

1. Company may charge fees as the Board thinks fit, not exceeding rupees fifty
per certificate
2. On the face of duplicate certificate, it shall be stated prominently that it is
“duplicate issued in lieu of share certificate No......” and the word “duplicate”
shall be stamped or printed prominently
3. In case unlisted companies, the duplicate share certificates shall be issued
within a period of three months and in case of listed companies such
certificate shall be issued within fifteen days, from the date of submission of
complete documents with the company respectively.
Record of renewed and duplicate certificate to be maintained

Particulars of every renewed and duplicate share certificates maintained in Form
SH 2 with cross reference to register of members, in shape of register.
Such register shall be kept at registered officer or any other place where register
of members in custody of company secretary or such other person as may be
authorised by the Board.
All entries made in such register shall be authenticated by the company secretary
or such other person as may be authorised by the Board.
MANNER OF ISSUE OF CERTIFICATES/DUPLICATE CERTIFICATES
Sub-section 3 overrule the articles of a company, and say the issue of a certificate
of shares or the duplicate thereof, the particulars to be entered in the register of
members and other matters shall be in manner and form as prescribed in rule 5, 6,
and 7 of the Companies (Shares and Debentures) Rules, 2014.
Rule 5 of the Companies (Shares and Debentures) Rules, 2014 applies, where
shares are not in demat form
Share certificate is in vogue in case of shares which are held in the physical
form, not in the demat form (under the depository mode). Hence provisions
contained in rule 5 of the Companies (Shares and Debentures) Rules, 2014 pertaining
to share certificate applicable where shares are not in demat form.

Pre-requisites for issue of share certificate

Share Certificate shall be issued on surrender of letter of allotment or fractional
coupons of requisite value (save in cases of issues against letters of acceptance or
of renunciation, or in cases of issue of bonus shares); in pursuance of a resolution
passed by the Board.
Form of share certificate
Certificate of share shall be in Form SH 1 or as near thereto as possible and shall
specify;
a. The name(s) of the person(s) in whose favor the certificate is issued,
b. The shares to which it relates and
c. The amount paid-up thereon.
Recording of particulars stated in share certificate
The particulars of every share certificate issued in accordance with sub-rule (1) shall
be entered in the Register of Members maintained in accordance with the
provisions of section 88 along with the name(s) of person(s) to whom it has been
issued, indicating the date of issue.
Maintenance of share certificate forms and related books and documents
(Rule 7 of the Companies (Shares and Debentures) Rules, 2014)
All blank forms to be used for issue of share certificates shall be printed and the
printing shall be done only on the authority of a resolution of the Board and these
shall be consecutively machine-numbered. Such forms shall be kept in the custody
of the secretary or such other person as the Board may authorise for the purpose.
All books pertain to record of share certificates shall be preserved in good order
not less than thirty years and in case of disputed cases, shall be preserved
permanently.
All certificates surrendered to a company shall immediately be defaced by stamping
or printing the word “cancelled” in bold letters and may be destroyed after the
expiry of three years from the date on which they are surrendered, under the
authority of a resolution of the Board and in the presence of a person duly
appointed by the Board in this behalf.

a
Note:
1. Share Certificate is not a negotiable instrument.
2. Company shall issue only one share certificate in all those cases where shares
are held by more than one person jointly with others and delivery of share
certificate to any one of them will amount to delivery to all of them.
PUNISHMENT FOR ISSUING DUPLICATE CERTIFICATE OF SHARES WITH

INTENT TO DEFRAUD [Sub-section 5]
If a company with intent to defraud issues a duplicate certificate of shares, the
punishment shall be as specified in table;
Liable Minimum Fine Maximum Fine

Higher of:
Five times the face Ten times the face
Company value of the shares value of such shares
involved or
Rupees ten crores
And
Liable for action under section 447
Every officer of the Note – Provisions of Section 447 already
company who is in default explained as separate topic under chapter 3 of
this module.
Example 3 – It is observed that Golden Apple Transport Limited issued share

certificates in duplicate with intend to defraud. The total shares in regard to which
such certificates are issued are nearly 12,00,000. Face value of each share is ` 10.
The maximum fine that can be imposed on company shall be ` 12,00,00,000.
4. VOTING RIGHTS [SECTION 47]

VOTING RIGHTS OF MEMBERS HOLDING EQUITY SHARE CAPITAL [SUB-
SECTION 1]
Subject to the provisions of section 43, section 50 (2) and section 188 (1)
a. Every member of a company limited by shares and holding equity share
capital therein, shall have a right to vote on every resolution placed before
the company; and

b. His voting right on a poll shall be in proportion to his share in the paid-up
equity share capital of the company. But in case of Nidhi Company, no
member shall exercise voting rights on poll in excess of five per cent, of
total voting rights of equity shareholders. 18
Note:
1. As per section 2(93) Voting right means the right of a member of a company
to vote in any meeting of the company or by means of postal ballot.
2. Section 106 specify provisions regarding restriction on voting rights.
3. Section 43 has overriding effect on section 47, hence holders of equity share
capital with differential rights will exercise voting right as per clauses of article
of association or terms of issue; rather on proportional basis.
VOTING RIGHTS OF MEMBERS HOLDING PREFERENCE SHARE CAPITAL

[SUB-SECTION 2]
Every member of a company limited by shares who is holding any preference share
capital shall, in respect of such capital, have a right to vote on resolution;
a. Placed before the company which directly affect the rights attached to his
preference shares, and
b. For the winding up of the company, or for the repayment or reduction of
its equity or preference share capital.
Note:
Voting right of preference share holder, on a poll shall be in proportion to his share
in the paid-up preference share capital of the company.
Second Proviso to section 47 (2) empowers preference shareholder with right to
vote on all the resolutions placed before the company, in case where the dividend
in respect of his class of preference shares has not been paid for a period of two
years or more.
First Proviso to section 47 (2), provides that in case of resolutions wherein both equity
shareholders and preference shareholders are entitled to vote, the proportion of the
voting rights of equity shareholders to the voting rights of the preference
shareholders shall be in the same proportion as the paid-up capital in respect of the
equity shares bears to the paid-up capital in respect of the preference shares.
18
Notification No. GSR 465 (E), dated 5th June, 2015.

a
Summary of section 47
Voting Rights
Preference Shares (In

Equity Shares proportion of paid-up
capital)
On every resolution Dividend not Directly

placed before the paid for 2 years Winding up affecting
company or more interest
Equity shares
Normal having Differential
Rights
In proportion As defined in
of paid-up Articles/ Terms
capital of issue
Example 4 – Indswift Pharma Labs Limited raised the capital of 300 crore through
issue of single series of 8% preference share apart from 1200 crore ordinary shares.
Indswift last paid dividend to such preference share holder, for 2019-20.
Preference shareholder w.e.f 1 st April 2022 assume the right to vote on any
resolution placed before company. But till 31 st March 2022 they can vote only on
that resolution which directly affect the rights attached to his preference shares or
involve matter of the winding up of the company, or for the repayment or reduction
of its equity or preference share capital.
The proportion of voting right of equity shareholders to the voting rights of the
preference shareholders shall be 4:1.

Section 47 shall not apply to;

1. A Specified IFSC Public Company, where memorandum of association or
articles of association of such company provides for it. 19
2. A private company, where memorandum or articles of association of the
private company so provides, however, this exemption shall be avaible to only
that private company which has not committed a default in filing its financial
statements under section 137 or annual return under section 92 with the
Registrar.20
5. VARIATION OF SHAREHOLDERS’ RIGHTS

[SECTION 48]
A shareholder who was given the right to purchase the shares of the company on
a pre-emptive basis was held to constitute a special class distinguishing him from
other shareholders who did not have any such right, and consequently, his right
was not permitted to be taken away without his consent.21 If it is proposed to
change the rights of any class, certain procedure has to be followed.
Section 48 allows the variation, if three conditions (First two stated by sub-section
1, while third and last one by sub-section 2) has been met.
First - There should be a provision in the memorandum or articles of the
company entitling it to vary such class rights, in absence of same; the terms of
issue of the shares of that class not prohibiting such a variation.
Second - The holders of at-least 75% of the issued shares of that class must have
given their consent in writing or pass a special resolution sanctioning the
variation at a separate class meeting.
Proviso to sub-section 1, provides if variation by one class of shareholders affects
the rights of any other class of shareholders, the consent of three-fourths of such
other class of shareholders shall also be obtained and the provisions of this
section shall apply to such variation.
19
20
GSR 464 (E), dated 5th June, 2015 as amended by GSR 583 (E), dated 13 th June, 2017
21
Cumbrian Newspapers Group Ltd v Cumberland Sf Westmorland Herald Newspaper &
Printing Co Ltd (1987) 2 Comp LJ39.

a
Third - The holders of at least 10 per cent of the shares of that class who did not
consent to or vote in favour of the resolution may apply to the Tribunal and then
variation shall not take effect unless and until it is confirmed by the Tribunal.
Procedural Aspects for confirmation from tribunal

An application should be made within 21 days of the date of consent or resolution.
It can be made by one (or more of their number) as they may appoint in writing;
on behalf of the shareholders entitled to make the application
Sub-section 3 provides, the decision of the Tribunal have binding effect upon
shareholders of the class. Further sub-section 4 requires the company to file a
copy of the order with the Registrar within 30 days of the date of the order.
Example 5 – A resolution sanctioning the variation has been moved on 1 st

November 2022, the application with tribunal shall be filled by 22nd November
2022. Further if tribunal pass its order on 4 th January 2023, then copy of order shall
be filed with registrar by 6 th March 2023.
Illustration - MCQ
DBS Chemicals Limited issue ordinary share of different classes. DBS planned to vary
rights of one the class wherein there were only 105 holders. 100 out of 105 holders
own 0.5% shares of that class, whereas each of remaining 5 holders hold 10% shares
of that class. Presuming 100 holder who own 0.5% shares already signed/authorised
the consent letter sanctioning the variation, how many holders out of such 5 need to
authorise the said letter to approve the variation.
Options;
a. 0
b. 1
c. 3
d. 5
Answer – c. (Refer section 48(1)
The holders of at-least 75% of the issued shares of that class must have given
their consent in writing or pass a special resolution sanctioning the variation at a
separate class meeting.
Mind it is 75% of issued shares’ holders not 75% of holders.

Crux of some of landmark judgements – to better understand the ‘variation’

New issue of preference shares ranking pari-passu with the existing shares does
not amount to variation so as to require the consent of preference shareholders.22
Cancellation of shares and reduction of capital also do not amount to variation of
class rights.23
6. CALLS ON SHARE [SECTION 49 TO SECTION 51]

The liability of a shareholder to pay the full value of the shares held by him, which
is currently partly paid-up is enforced by making "calls" for payment.
It is worth noting here that every shareholder is under a statutory liability to pay
the full amount of his shares as Section 10(2) declares that "all money payable by
any member to the company under the memorandum or articles shall be a debt
due from him to the company".
But the liability to pay this debt arises only when a valid call has been made. Section
49 lay down the principle of uniformity, whereas section 50 deals with calls in
advance and section 51 contains the provisions regarding dividend rights on paid-
up amount.
CALL SHALL BE ON UNIFORM BASIS [SECTION 49]

Calls shall be made on a uniform basis on all shares that are falling under the same
class.
Note:
1. Usually share with same nominal value are considered as same class, but
shares of the same nominal value on which different sums have been paid
shall not be deemed, for this purpose, to fall under the same class.
2. A shareholder on whom a regular call for payment has been served may
choose to pay only a part of the sum due.
22
White v Bristol Aeroplane Co Ltd (1953) 2 WLR 144.
23
Essar Steel Ltd, re, (2005) 59 SCL457 (Guj)

a
Here it is important to consider the debt (of calls made) is not an entire and
indivisible debt, therefore, the company may be bound to accept the
amount tendered by the shareholder
3. How much to call on partly-paid share?
This will be the decision of board, subject to clauses to Article and terms of issue.
Example 6 – Prism Glass Limited issued three series of equity shares, all carry the
nominal value of ` 100, and the paid-up value for each series is 100, 80 and 55
respectively.
All will be considered as different class of shares. Since for first class share is fully paid-
up, no call can be made, whereas in case of remaining two classes call can be made.
Where a shareholder paid the first two calls after a great delay and neglected to pay
the third call and the directors, being annoyed, and called upon him to pay the whole
amount due. In your opinion is call valid?
Answer - A call can’t be made on some of the members only, unless they constitute
a separate class of shareholders, hence such a call shall be invalid. 24
CALLS-IN-ADVANCE [SECTION 50]
As per Section 50, a company may, if so authorised by its articles, accept from any
member the whole or a part of the amount remaining unpaid on any shares held
by him, although no part of that amount has been called up.
Note
1. Such advance payment will not entitle the member to more voting rights as
compared with other members until all have been called upon to pay.
2. Interest can be paid on such advance, if permitted by article. Here it is
worth nothing that, where the rate of interest is permitted by the articles on
such advance payment, same could be varied by shareholders in general
meeting. To illustrate; a rate 6 percent may increase to 10% by
shareholders.25
24
Galloway v Halle Concerts Society, (1915) 2 Ch 233
25
CIT v Manipal Industries Ltd, (1997) 12 SCL 15 (ITAT).

Example 7 - Coriander Masale Limited has issued 10,00,000 equity shares of ` 10

each on which ` 6 per share has been called till allotment and the first and final call
of ` 4 is yet to be made. Reena holds 10,000 shares on which she has paid whole
of ` 10 per share. In the upcoming extra-ordinary general meeting of the company
she wants to exercise her voting rights as the owner of fully paid-up shares.
However, the company cannot permit her as she does not have voting right in
respect of the ‘advance amount’ paid by her in respect of first and final call. The
restriction will continue till the amount is duly called up by the company.
Moon Star Machineries Limited is authorised by its articles to accept the whole or any
part of the amount of remaining unpaid calls from any member even if no part of
that amount has been called up by it. ‘Anand’, a shareholder, deposits in advance the
remaining amount due on his partly paid-up shares without any calls being made by
the company. Advise the company about the validity of accepting money in advance.
Answer - In view of the authorisation given by the Articles, Moon Star Machineries
Limited is permitted to accept the advance amount received on unpaid calls from
Anand. In other words, this is a valid transaction.
PAYMENT OF DIVIDEND IN PROPORTION TO PAID-UP AMOUNT

[SECTION 51]
The company if so authorised by article, may be permitted to pay dividends in
proportion to the amount paid-up on each share.
The Board of Directors of a company may decide to pay dividends on pro rata basis
if all the equity shares of the company are not equally paid-up. However, in the
case of preference shares, dividend is always paid at a fixed rate.
7. ISSUE OF SHARES AT A PREMIUM OR

DISCOUNT [SECTION 52 & SECTION 53]
ISSUE OF SHARES AT A PREMIUM & APPLICATION OF PREMIUM
[SECTION 52]
Since there is no restriction imposed by the Act on the sale of shares at a premium,
hence if the market exists, a company may issue its shares at a price higher than
their face/nominal value. But the Act does regulate the disbursement of the amount
collected as premium through section 52.

a
Note:
1. The power to issue shares at premium need not be specifically provided by

AOA.
2. SEBI guidelines have to be observed by listed entities, as regulations indicate

when an issue has to be at par and when premium is chargeable.
When a company issues shares at a price higher than their face value, the shares
are said to be issued at premium and the differential amount is termed as premium.
Example 8 - A share having face value of ` 10 is issued at a price of ` 14. The

amount over and above the face value of ` 10 i.e. ` 4 is called premium.
Practical Insight
Lloyds Luxuries IPO opens on Sep 28, 2022, and closes on Sep 30, 2022. The date
of listing on NSE SME was October 11, 2022 (Tuesday). Fixed issue price against the
Face Value of ₹ 10 per share is ₹ 40 per share. Hence, premium charges is ₹30 per
share.
Transfer of premium to Securities Premium Account [Sub-section1]

Sub-section 1 lay-down following principles that shall be observed in regards to
premium;
a. Premium may be received in cash or in kind.
b. The amount of premium so received, whether in cash or kind, shall be carried
to a separate account to be known as the Securities Premium Account.
c. The amount to the credit of share premium account has to be maintained
with the same sanctity as paid-up share capital
d. It can be reduced only in the manner of paid-up share capital can be

reduced under this act. Liberty is, however, given to use the fund in the sub-
section 2 and 3.
Note:
1. The amount to the credit of the share premium account has to be shown as
a separate item in the Balance-sheet under Schedule III, Part B of the Act and
if it was disposed of either wholly or partly, then disclosure shall be made
‘how it was disposed’?

2. The DCA was of opinion that the amount of premium can’t be treated as a
free reserve as it is in the nature of a capital reserve. 26
3. A reduction of the premium account was allowed under a scheme which
experts had approved as fair, just and proper.27
Application of Premium received on Issue of Shares [sub-section 2 & 3]

Sub-section 2 allow the companies to apply securities premium account for;
a. Issue of fully paid bonus shares;
b. Writing off the preliminary expenses;
c. Writing off the issue expenses (expenses including commission paid or
discount allowed on any issue of shares or debentures);
d. Premium payable on the redemption (of any preference shares or of any
debentures); or
e. Buy-back (purchase of its own shares or other securities under section 68).
Sub-section 3 has overriding effect over sub-section 1 and 2. It restricts the
application of Securities Premium Account in case of;
Such class of companies, as may be prescribed and whose financial statement
comply with the accounting standards prescribed for such class of companies under
Section 133
For the purpose of;
a. Issue of fully paid bonus shares;
b. Writing off the issue expenses (expenses including commission paid or
discount allowed on any issue of shares);
c. Buy-back (purchase of its own shares or other securities under section 68).
PROHIBITION ON ISSUE OF SHARES AT DISCOUNT [SECTION 53]
Where the issue price is lower than the face value of the shares, such issue of shares
is regarded as being issued at discount and the differential amount is known as
discount.
26
Circular No 3/77 of 15-4-1977
27
Zee Tele Films Ltd, re, (2005) 124 Comp Cas 102 (Bom).

a
Example 9 - A share having face value of ` 100 is issued at a lower price of ` 95. The
differential amount of ` 5 is known as discount which is being allowed by the company.
Though title of section used the word prohibited, but indeed issue of share at
discount is not fully prohibited, it is only restricted especially after the enactment
of the Companies (Amendment) Act, 2017 (effective from 09th February 2018).
Sub-section 1, except the issue of ‘Sweat Equity Shares’ under section 54 of this
Act, a company shall not issue shares at discount.
Further, sub-section 2, provides any share issued at discount by company is void.
Sub-section 2A, is overriding provision (to sub-section 1 and 2) inserted though
Companies (Amendment) Act, 2017 empowers the company to issue shares at
discount to its creditors as result of converting their debt on company into
shares as a result of;
a. Statutory resolution plan or
b. Debt restructuring scheme

In accordance with any guidelines or directions or regulations specified by the
Reserve Bank of India under the Reserve Bank of India Act, 1934 or the Banking
(Regulation) Act, 1949.
Sub-section 3 provides the penalties that can be imposed where any company fails to
comply with the provisions of Section 53;
Liable Penalty
Every officer who is Upto an amount equal to the amount raised through the
in default issue of shares at a discount or five lakh rupees, whichever
is less
Company Refund all monies received with interest at the rate of twelve
percent per annum from the date of issue of such shares
Note:
It is to be noted that the restrictions mentioned in Sections 52 and 53 shall apply
only in respect of issue of shares (either equity or preference shares) but not to the
issue of any debt related products like bonds or debentures whose pricing is mostly
governed by YTM (yield to maturity) considerations.

8. ISSUE OF SWEAT EQUITY SHARES [SECTION 54]

MEANING OF ‘SWEAT EQUITY SHARES’ [SECTION 2(88)]
The term ‘sweat equity shares’ means such equity shares as are issued by a
company to its directors or employees at a discount or for consideration, other
than cash, for providing their know-how or making available rights in the nature
of intellectual property rights or value additions, by whatever name called.
Hence one can say, sweat equity shares are issued to keep the employees of a
company motivated by making them partner in the growth of the company. Mind
it, Sweat equity shares is a different concept from Employee stock option in multiple
ways.
Section 54 lists out the conditions that shall be fulfilled by company prior to issue
of sweat equity share apart from designates these at equal footing to equity shares.
STATUS OF SWEAT EQUITY SHARES AND HOLDER THEREOF [SECTION
54(2)]
Sub-section 2 provides;
a. The rights, limitations, restrictions and provisions as are for the time being
applicable to equity shares shall be applicable to the sweat equity shares
issued under section 54 of the Act
b. The holders of sweat equity shares shall rank pari-passu with other equity
shareholders.
Pari-passu is a Latin phrase that means "on equal footing"
CONDITIONS FOR ISSUE OF SWEAT EQUITY SHARES [SECTION 54(1)]

According to Section 54 (1), a company may issue sweat equity shares if all of the
following conditions are fulfilled;
a. Share of that class must be already issued
b. Issue is authorised by a special resolution passed by the company;
c. Resolution specifies the details regarding the number of shares, the current
market price, consideration, if any, and the class or classes of directors or
employees to whom such equity shares are to be issued;
d. The issue of sweat equity shares must be in accordance with
regulations/rules as state in table;

a
Company Applicable Provisions/Regulations

Listed on Recognised Stock Regulations made by the Securities and Exchange
Exchange Board in this behalf
Rule 8 of the Companies (Share and Debentures)
Other than above
Rules, 2014
Illustration – T&F
A company that incorporated and commenced the business on 9th Nov 2022, can
issue sweat equity share only after 8 th Nov 2023.
Answer - False. Currently there is no condition prescribed by section 54 (1)

regarding age of company.
Clause c to section 54(1) omitted by the Companies (Amendment) Act, 2017 w.e.f
7th May 2018 “not less than one year has, at the date of such issue, elapsed since
the date on which the company had commenced business”.
SOME OF THE IMPORTANT PROVISIONS CONTAINED IN RULE 8 OF THE

COMPANIES (SHARE AND DEBENTURES) RULES, 2014
Meaning of Employee (Explanation I to sub-rule 1)
Employee means
a. a permanent employee of the company who has been working in India or

outside India; or
b. a director of the company, whether a whole-time director or not; or
c. an employee or a director as defined above, either of subsidiary or holding

company of concerned company; in India or outside India
Meaning of ‘Value additions (Explanation II to sub-rule 1)
The expression ‘Value additions’ means;
a. Actual or anticipated economic benefits derived or to be derived by the

company from an expert or a professional

b. For providing know-how or making available rights in the nature of

intellectual property rights,
c. By such person to whom sweat equity is being issued

d. For which the consideration is not paid or included in the normal
remuneration payable under the contract of employment (in the case of an
employee).
Validity of Special Resolution (Sub-rule 3)
The special resolution authorising the issue of sweat equity shares shall be valid for
making the allotment within a period of not more than twelve months from the date
of passing.
Limit on issue of Sweat Equity Shares (Sub-rule 4)
During a year, the maximum amount/limit for which sweat equity shares can be
issued is higher of;
a. Fifteen percent of the existing paid up equity share capital or
b. Shares of the issue value of rupees five crore.
The issuance of sweat equity shares (cumulative, including all previous issues, if any)
shall not exceed twenty five percent, of the paid-up equity capital of the Company
at any time. This limit for Startup companies is fifty percent of paid up capital upto ten
years from the date of its incorporation or registration.
Lock-in Period [Sub-rule 5]
Sweat equity shares issued to directors or employees shall be locked in/non-
transferable for a period of three years from the date of allotment.
Valuation of Sweat Equity Shares [Sub-rule 6]
Sweat equity shares to be issued shall be valued at a price determined by a

registered valuer as the fair price giving justification for such valuation.
Quoted market prices in an active market are the best evidence of fair value and
should be used, where they exist, to measure the financial instrument.

a
Valuation of IPR/know-how/value additions [Sub-rule 7]
The valuation of intellectual property rights or of know how or value additions for
which sweat equity shares are to be issued, shall be carried out by a registered valuer,
who shall provide a proper report addressed to the Board of directors with
justification for such valuation.
Treatment of non-cash consideration [Sub-rule 9]
Where the sweat equity shares are issued for a non-cash consideration on the basis of
a valuation report in respect thereof obtained from the registered valuer, such non-
cash consideration shall be treated in the following manner in the books of account of
the company:
Form of Non-cash consideration Treatment
Depreciable or amortizable asset Carried to the balance sheet
Other than above Shall be recorded as expense
Disclosure in the Directors’ Report [Sub-rule 13]
The Board of Directors shall, inter alia, disclose in the Directors' Report for the year in
which such shares are issued, the specified details of issue of sweat equity shares.
Maintenance of Register [Sub-rule 14]
The company shall maintain a Register of Sweat Equity Shares in Form No. SH. 3. It
shall be maintained at the registered office of the company or such other place as the
Board may decide.

9. ISSUE AND REDEMPTION OF PREFERENCE

SHARES [SECTION 55]
Following diagram depicts the types of preference shares:
On the basis of Cumulative

payment of
dividend Non-cumulative
On the basis of Participatory

participation in
surplus Non-participatory
Types of
Convertible
Preference
Shares (mandatorily or optionally)
On the basis of
conversion (partially or fully)
Non-convertible
Redeemable
On the basis of
redemption Irredeemable
(cannot be issued)
PROHIBITION ON ISSUE OF IRREDEEMABLE PREFERENCE SHARES [SUB-

SECTION 1]
A company limited by shares shall not issue any preference shares which are
irredeemable.
It worth noting that the amendment of 1988 to the Companies Act 1956, abolished
the category of irredeemable preference shares.
ISSUE AND REDEMPTION OF REDEEMABLE PREFERENCE SHARE [SUB-
SECTION 2]
From the sub-section 1, it can be constructed reasonably that only redeemable
preference shares can be issued by company limited by shares, sub-section 2

a
provides for conditions as applicable to the issue and redemption of redeemable

preference shares.
Authorised by Article of Association
A company limited by shares may issue redeemable preference shares only if so
authorised by its articles.
Example 10 – Medanta Healthcare Limited is planning to raise the capital through
issue of preference share. It article is silent about this. Board of Directors are of
opinion that redeemable share can be issued.
Since in the given case article is silent, not authorise the issue of preference shares
expressly, hence Medanta Healthcare Limited can’t issue preference share. They
may alter the article of association.
Maximum Tenor of redeemable Preference Shares and exception thereto
Sub-section 2 also provides preference shares shall be redeemed within a period
not exceeding twenty years from the date of their issue subject to such
conditions as are prescribed in Rule 9 of the Companies (Share Capital and
Debentures) Rules, 2014.
These conditions laid-down by sub-rule 1 are;
a. A special resolution in the general meeting of the company shall be passed
b. At the time of such issue of preference shares, the company should not have
subsisting default in the;
i. Redemption of preference shares or
ii. Payment of dividend due on any preference shares.
Sub-rule 2 and 3 enumerates the matters to be specified in resolution and
explanatory statement to be annexed to the notice of such general meeting in
which resolution has to be passed respectively.
Sub-rule 4 requires a company that issues preference shares, to maintain a Register
of Members under Section 88, which shall contain the particulars in respect of such
preference shareholder(s).
Further sub-rule 5 provides that if company wish to list its preference shares on a
recognized stock exchange, shall issue such shares in accordance with the
regulations made by the SEBI in this behalf.

Exception to maximum tenor limit of twenty years (First proviso to section

55(2) read with explanation to section 55 and Rule 9 of the Companies (Share
Capital and Debentures) Rules, 2014).
For infrastructure projects specified in schedule VI of this Act, a company may issue
preference shares for a period exceeding twenty years but not exceeding thirty
years subject to the redemption of at least 10% of such preference shares annually,
beginning from 21st year onwards or earlier, on proportionate basis, at the option
of preferential shareholders.
Redemption of Preference Shares [Second proviso to section 55(2)]
Second proviso to section 55(2) provide conditions for redemption and payment
of premium on redemption, if any
a. Preference shares shall be redeemed out of;
1. Profits of the company which would otherwise be available for dividend
or
2. Proceeds of a fresh issue of shares made for the purposes of such
redemption.
b. Shares to be redeemed shall be fully paid.
c. Where such shares are proposed to be redeemed out of the profits of the
company;
1. A sum equal to the nominal amount of the shares to be redeemed, out
of such profits (profit & free reserves, which otherwise is available for
dividend), shall be transferred to a reserve, called Capital Redemption
Reserve
2. The amount to the credit of Capital Redemption Reserve has to be
maintained with the same sanctity as paid-up share capital
3. Capital Redemption Reserve can be reduced only in the manner of
paid-up share capital can be reduced under this Act.
For the purpose of this section

1. Redemption of preference shares is not taken as reduction of the company's
authorised share capital.
2. The company may issue new shares up to the nominal amount of the shares
redeemed and the capital shall not be deemed to have been increased.

a
Example 11 - During the current financial year, the Board of Directors of Vintee
Lifestyles Garments Limited is to undertake redemption of 20,000 preference shares
of ` 100 each at a premium of ` 20 per share. It is made out by the Accounts
Department that the profits are sufficient to meet the ensuing liability arising out
of redemption of preference shares at premium. In this case, the amount that needs
to be transferred to Capital Redemption Reserve account out of profits which are
otherwise available for dividend, is ` 20,00,000 being the sum equal to the nominal
amount of the preference shares to be redeemed. There is no need to transfer to
CRR account any amount paid towards premium.
d. Source of premium, if any; payable at redemption of preference shares
In case of such class of companies, as may be prescribed and whose financial
statement comply with the accounting standards prescribed for such class of
companies under section 133, the premium, if any, payable on redemption shall be
provided for out of the profits of the company, before the shares are redeemed.
Provided also that premium, if any, payable on redemption of any preference shares
issued on or before the commencement of this Act by any such company shall be
provided for out of the profits of the company or out of the company’s securities
premium account, before such shares are redeemed.
In a case not falling under above scenario, the premium, if any, payable on
redemption shall be provided for out of the profits of the company or out of the
company’s securities premium account, before such shares are redeemed.
Summary of above provisions are tabled below;
Category Source Timing (Shall be

provided)
Such class of companies, Out of the profits of the before such shares are
as may be prescribed company redeemed
and whose financial
statement comply with
the accounting
standards prescribed for
such class of companies
under section 133

Premium payable on Out of the profits of the

redemption of any company or out of the
preference shares issued company‘s securities
on or before the premium account
commencement of this
Act
Any other case
Issue of further Redeemable Preference Shares (if a Company is unable to

redeem existing preference shares or pay dividend) [Sub-section 3]
Where a company is not in a position to redeem any preference shares or to pay
dividend on such preference shares (called unredeemed preference shares) in
accordance with the terms of issue; then such company may issue further
redeemable preference shares to the holder of unredeemed preference shares;
equal to the amount due, including the dividend thereon; with the consent of the
holders of three-fourth in value of such unredeemed preference shares, and
approval of the tribunal on a petition made by it in this behalf.
In this way the unredeemed preference shares shall be deemed to have been
redeemed.
Where a company is not in a position to redeem any

preference shares or to pay dividend on such
preference shares (called unredeemed preference
shares) in accordance with the terms of issue;
Then such company may issue further redeemable

preference shares to the holder of unredeemed
preference shares;
Equal to the amount due, including the dividend

thereon;
With the consent of the holders of three-fourth in

value of such unredeemed preference shares, and
approval of the tribunal on a petition made by it in this
behalf.
In this way the unredeemed preference shares shall be

deemed to have been redeemed.

a
Note:
In regards to preference shares held by shareholder who have not consented to the
issue of further redeemable preference shares, the tribunal shall order the
redemption forthwith; while giving approval under section 55(3)
Example 12 – Bell Homes Furnisher Limited (BHFL) unable to redeem the

preference shares as they become due. Hence BHFL decided to issue further
preference share against unredeemed preference shares. Holder holding 93% of
such unredeemed preference shares in value, gave their consent; tribunal also
assented to issue of further preference shares. The 18 holders who own remaining
7% seek redemption of shares held by them.
In this case while giving approval under section 55(3), tribunal shall order the
redemption forthwith of shares (7% in value) held by dissenting 18 holders.
Utilisation of CRR Account [Sub-section 4]
The capital redemption reserve account may be applied in paying up unissued
shares of the company to be issued to the members as fully paid bonus shares.
10. TRANSFER AND TRANSMISSION OF

SECURITIES AND THE ALLIED PROVISIONS
[SECTION 56 TO SECTION 59]
The procedures and formalities for the transfer of the securities as laid down by
sections 56-59 are largely applicable to securities that are in other form than demat
form.
TRANSFER AND TRANSMISSION OF SECURITIES OR INTEREST OF
MEMBER IN COMPANY [SECTION 56]
Requirement for Registering the Transfer of Securities [Sub-section 1]
Except, where the transfer is between persons both of whose names are entered
as holders of beneficial interest in the records of a depository
A company shall register a transfer of;
a. securities of the company, or

b. the interest of a member in the company in the case of a company having no

share capital,
Only if, following conditions fulfilled prior to such registration;
a. The instrument of transfer must be executed both by the transferor and
the transferee.
b. The instrument must specify the name, address and occupation, if any, of
the transferee.
c. The instrument of transfer should be duly stamped and dated.
d. The instrument of transfer should be in the prescribed form. As per Rule 11

(1) of the Companies (Share Capital and Debentures) Rules, 2014, Form No.
SH-4 is to be used, in case securities are held in physical form
e. The instrument should be delivered to the company along with the

certificate relating to the shares transferred within 60 days from the date
of execution. If the share certificate is not in existence, the letter of allotment
of securities should be filed.
The proviso to Section 56(1) says that where the instrument of transfer has been
lost or it has not been delivered within the prescribed period (i.e. 60 days from
the date of Execution), the company may register the transfer on such terms as to
indemnity as the Board may think fit.
Transfer of partly paid Shares on an application of transferor alone (Sub -

section 3 read with rule 11 (3) of the Companies (Share Capital and
Debentures) Rules, 2014
Where an application is made by the transferor alone and relates to partly paid
shares, a company shall not register a transfer of partly paid shares, unless the
company has given a notice in Form No. SH-5 to the transferee and the transferee
has given no objection to the transfer within two weeks from the date of receipt
of notice.
Example 13 - Himanshu has received a notice from Chaitanya Progressive Books
Private Limited on 7th August, 2023 intimating that Shefali has submitted a transfer
deed duly signed by her for transfer of 500 partly paid shares (` 6 paid-up out of
Face Value of ` 10 per share) in his name.
Himanshu as transferee must raise his objection to the proposed transfer of partly
paid shares latest by 21 st August, 2023.

a
Exemptions28 in case of government companies/securities

Government Company, which has not committed a default in filing its financial
statements under section 137 or Annual Return under section 92 with the Registrar
given.
Full exemption from conditions laid-down by section 56(1) in respect to transfer

of securities held by nominees of the Government.
Partial exemption in respect to transfer of bonds issued by a Government
company. Only an intimation by the transferee specifying his name, address and
occupation, if any, has been delivered to the company along with the certificate
relating to the bond; and if no such certificate is in existence, along with the letter
of allotment of the bond. There is no requirement of proper instrument of transfer,
to be duly stamped and executed by or on behalf of the transferor and by or on
behalf of the transferee.
Power to Register Transmission not affected by section 56 (1) (Sub-section 2)
The power of company to register transmission shall not be affected by the
conditions imposed by Section 56 (1) for registration of transfer.
Hence company is empowered to register transmission of right, if it receives an
intimation from any person to whom such right has been transmitted. There is no
need for submission of instrument of transfer in case of transmission.
Transmission (vis-à-vis transfer).
The word 'transmission' means devolution of title to securities otherwise than by
transfer, for example, devolution by death, succession, inheritance, bankruptcy,
marriage, etc. On registration of the transmission of securities, the person entitled
to transmission of securities becomes the holder and is entitled to all rights and
subject to all liabilities arising therefrom.
While transfer of shares is brought about by delivery of a proper instrument of
transfer (viz, transfer deed) duly stamped and executed, transmission of shares is
done by forwarding the necessary documents (such as a notarised copy of death
certificate) to the company.
28
In terms of Notification No. GSR 463 (E), dated 5th June, 2015

Few cases of transmission for better understanding - In the following cases

(mind it this list is not exhaustive, only illustrative), transmission of shares shall take
place;
1. Death: When a shareholder expires, his shares need to be transmitted to his
legal representative.
2. Insolvency: When a shareholder becomes insolvent, his shares are to be
transmitted to his Official Receiver.
3. Lunacy: When a shareholder becomes lunatic, his shares are to be
transmitted to his administrator appointed by the Court.
Transfer of Security of the Deceased Person by his Legal Representative [Sub-

section 5]
The transfer of any security (or other interest in company) made by legal
representative of a deceased person, shall be valid as if such legal representative is
holder at the time of the execution of the instrument of transfer; even if, in actual
such legal representative is not a registered holder.
This sub-section is basically bringing ease to legal heir with deeming effect of being
holder of security or other interest in company of a deceased person.
Example 14 - Richa Daniel, after having obtained succession certificate, succeeded

to 7,000 shares of ` 100 each allotted to her late father Alexender Daniel by Speed
Software Limited. To pay off the debt of her cousin Stesley, she wants to transfer
whole of the 7,000 shares to her on the basis of a duly stamped instrument of
transfer which has been signed by her as well as Stesley. Accordingly, she has
delivered the required documents to the company for transfer of shares.
In terms of Section 56 (5), the company, on receipt of duly stamped instrument of
transfer along with requisite share certificates and succession certificate, shall
transfer the shares in favour of Stesley. Thus, even though Richa Daniel, the legal
representative of Alexender Daniel, is not a holder of 7,000 shares as per the
Register of Members of the company, the transfer effected by her in favour of her
cousin Stesley is a valid transfer as if she had been the holder of securities at the
time of executing the transfer deed.
Note - As an alternative, Richa Daniel may choose to get herself registered as
holder of the 7,000 shares in which case, she will make an application to Speed
Software Limited. Such application shall be accompanied with share certificates and

a
succession certificate. There is no need to submit instrument of transfer or transfer

deed in such a case of transmission. This is so because transfer deed cannot be
signed by the deceased person as transferor.
On receipt of these documents, the company will scrutinize them and if found in
order, it shall proceed to enter the name of Richa Daniel in the Register of Members.
Consequently, the name of the deceased person i.e. Alexender Daniel shall be
deleted. Further, new share certificates will be issued in the name of Richa Daniel,
the legal representative of Alexender Daniel.
Time Period for Delivery of certificates [sub-section 4]
Every company shall, unless prohibited by any provision of law or any order of
Court, Tribunal or other authority, deliver the certificates of all securities allotted,
transferred or transmitted;
Particulars Time Period for delivering the Certificates

In the case of subscribers to the Within a period of two months from the date
memorandum. of incorporation.
In the case of any allotment of Within a period of two months from the date
any of its shares by a company. of allotment.
In the case of a transfer of Within a period of one month from the date of
securities. receipt of the instrument of transfer by the
company
In the case of a transmission of Within a period of one month from the date of
securities. receipt of the intimation of transmission by
the company
In the case of any allotment of Within a period of six months from the date of
debenture. allotment.
In the case of all securities by Within a period of sixty days after

specified IFSC public and private incorporation, allotment, transfer or
company 29
transmission.
29

Note:
In case where the securities are dealt with in a depository, the company shall
intimate the details of allotment of securities to depository immediately on
allotment of such securities. (Proviso to sub-section 4)
Example 15 – A request for transfer of shares has been received by Ind-swift

Pharma Labs Limited in form SH-4 along with instrument of transfer on
25th November 2022. The company shall deliver the certificate to that effect by 24 th
December 2022.
Penalty [Sub-section 6]
Liable Default Penalty

In complying with the provisions
Company and every officer of
of sub-sections (1) to (5) to ` 50,000
the company who is in default
section 56
Liability of Depository [Sub-section 7]

Where any depository or depository participant, with an intention to defraud a
person, has transferred shares, it shall be liable under Section 447 along with the
liability mentioned under the Depositories Act, 1996 30.
Note:
1. With the dematerialisation process becoming a necessity in case of unlisted
public companies i.e. they are required to dematerialise all of their securities as per
Rule 9A of the Companies (Prospectus and Allotment of Securities) Rules, 2014, the
chances of forgery are very thin or almost negligible.
2. The provisions contained in Section 447 which describe ‘punishment for fraud’
are stated in the earlier Chapter 3 relating to ‘Prospectus and Allotment of
Securities’.
30
Act 22 of 1996

a
PUNISHMENT FOR PERSONATION OF SHAREHOLDER [SECTION 57]

If any person deceitfully personates;
a. as an owner of any security or
b. interest in a company, or
c. as an owner of any share warrant or coupon issued in pursuance of this Act,
And, thereby obtains or attempts to obtain any such security or interest or any such
share warrant or coupon, or receives or attempts to receive any money due to any such
owner,
Such person shall be punishable with;
a. Imprisonment for a term which shall not be less than one year but which may
extend to three years and
b. Fine which shall not be less than one lakh rupees but which may extend to five
lakh rupees.
Penalty Minimum Maximum up to

Imprisonment One year Three years
And
Fine One Lakh Five lakh
Note:
Personation for acquisition of securities is offence under section 38 punishable under
section 447. Mind it section 447 is general provision.
Gravity of offence committed by personation under section 38 and section 57 may be
considered while imposing penalty out of range provided.
It is worth noting, offence of cheating by personation under section 416 of Indian Penal
Code, 1860 is punishable under section 419 of code, with punishment of either
description which may extend upto three year or with fine or with both.
Student may refer section 38 and section 447, both covered under chapter 3 of this
module.

Additional Reading on Forged Transfer

A forged transfer is a ‘nullity’ and is not legally binding. Forged transfer takes place
when a company effects transfer of shares on the basis of an instrument of transfer
containing forged signatures of transferor. Is it possible for a transferee of ‘forged
transfer’ to acquire ownership of shares contained in the instrument of transfer?
The answer is ‘NO’. At the same time, the transferor who is the real owner continues
to be the shareholder and accordingly, the company can be forced by him to delete
the name of the transferee and to restore his name as owner of shares in the
Register of Members.
What will happen if the transferee of ‘forged transfer’ transfers the shares to
another buyer who does not know about the forgery and the company also
registers the transfer in the name of new buyer and endorses the share certificates.
In fact, the company cannot deny the ownership rights of new genuine buyer but
it can also not deny the ownership rights of original shareholder because ‘forged
transfer’ is void ab-initio and therefore, the company has to restore his name. While
restoring the name of the original shareholder, the company may be asked to
compensate the new genuine buyer who exercised good faith in purchasing the
shares. As a remedy, the company may get itself indemnified by the first transferee
who used the forged instrument of transfer to get the shares transferred in his
name.
REFUSAL OF REGISTRATION AND APPEAL AGAINST REFUSAL [SECTION

58]
Shares are movable property, hence can be transferred by the shareholders in the
manner prescribed by the Articles. The right to transfer shares is absolute in nature
and inherently vested with the ownership of the shares. In no case Articles can take
away the rights of members to transfer shares in absolute, by making shares non-
transferable.
Shares of a public company are freely transferable, whereas a private company is

required under section 2(68)(i) to restrict the right of the members to transfer the
shares. The articles of association of private companies contain certain kind of
restrictions on the transferability of shares. Generally, the restriction put by a private
company is that of pre-emption whereby the members are required to offer their
shares first to the existing members of the company before offering them to the
outsiders.

a
Section 58 contains the procedure which needs to be followed by a company while

refusing to register the transfer of securities. It also contains process of filing appeal
against such refusal.
Notice of Refusal to be sent [Sub-section 1]
If a private company limited by shares refuses to register the transfer of, or the
transmission by operation of law of the right to any securities or interest of a
member in the company, then the company shall;
Send notice of refusal to the transferor and the transferee or to the person giving
intimation of such transmission and stating reasons thereto,
Within a period of thirty days from the date on which the instrument of transfer,
or the intimation of such transmission, was delivered to the company.
Securities/other interest in Public Company [sub-section 2]
The securities or other interest of any member in a public company are freely
transferable.
Any contract or arrangement between two or more persons in respect of transfer

of securities shall be enforceable as a contract.
Appeal to Tribunal against Refusal [Sub-section 3]
The transferee may appeal to the Tribunal against the refusal by private company
to register the transfer or transmission, within a period of;
a. Thirty days from the date of receipt of the notice or
b. Sixty days from the date on which the instrument of transfer or the
intimation of transmission, was delivered to the company, in case no notice
has been sent by the company.
Example 16 – An application has been received by Private Company for transfer of

share on 25 th Nov 2022. The transferee didn’t get any response from company,
hence may advance an appeal to the tribunal by 24th January 2023.
Appeal to Tribunal against Refusal by a Public Company without sufficient

cause [Sub-section 4]
If a public company without sufficient cause refuses to register the transfer of

securities within a period of thirty days from the date on which the instrument of

transfer or the intimation of transmission, is delivered to the company, the

transferee may appeal to the tribunal, within, within a period of
a. Sixty days of such refusal or
b. Ninety days of the delivery of the instrument of transfer or intimation of

transmission, where no intimation has been received from the company.
Example 17 – An application has been received by Public Company for transfer of

share on 25 th Nov 2022. The transferee didn’t get any response from company,
hence may advance an appeal to the tribunal by 23 rd February 2023.
Order of Tribunal [Sub-section 5]
The Tribunal, while dealing with an appeal may, after hearing the parties, either
dismiss the appeal, or by order direct;
a. Transfer or transmission shall be registered by the company and the

company shall comply with such order within a period of ten days of the
receipt of the order; or
b. Direct rectification of the register and also direct the company to pay
damages, if any, sustained by any party aggrieved.
Contravention of the Order of the Tribunal [Sub-section 6]
If a person contravenes the order of the Tribunal, he shall be punishable with

imprisonment for a term not less than one year but may extend to three
years and with fine not less than one lakh rupees which may extend to five lakh
rupees.
Summary of penalty
Penalty Minimum Maximum up to
Imprisonment One year Three years
And
Fine One Lakh Five lakh

a
Summary of section 58
Refusal to transfer
Private company Public company
Can't refuse without sufficient

Send notice of refusal with cause
reasons
Appeal to Tribunal in 30/60 Appeal to Tribunal in 60/90

days days
Tribunal will either dismiss appeal or order:

1. Transfer within 10 days
2. Rectification of Register
In case of contravention of order:

Fine and impriosnment
Illustration – T&F
Notice of refusal to register transfer of shares by private company shall be sent
only to the transferee within 30 days, stating reasons of refusal therein.
Answer – False, notice of refusal shall be given to both transferee and transferor
under section 58(1).
RECTIFICATION OF REGISTER OF MEMBERS [SECTION 59]
It is the duty of the company to keep the register up to date so as to give at all
times the accurate and correct position as to particulars of shareholding, because
If a person's name appears in the register of members, he is presumed to be the
shareholder or member, even if, in fact, he is not so. Contrarily, if a person's name
is absent from the register, apparently he is not a member, although he may have
done everything to entitle him to become one.
Section 59 entrust right to appeal with aggrieved person, apart from vesting power
in tribunal to order for rectification of register of members.
Appeal by Aggrieved Person [Sub-section 1]
An aggrieved person, member of company or company may appeal to tribunal
or to a competent court (outside India, specified by the Central Government by

notification, in respect of foreign members or debenture holders residing outside

India), for rectification of the register if without sufficient cause,
a. the name of any person is entered in the register of members of a company,
or
b. the name of any person is omitted, after having been entered in the register,
or
c. if a default is made, or unnecessary delay takes place in entering in the
register, the fact of any person having become or ceased to be a member.
Note:
The words "unnecessary delay" have not been defined in the Act and, therefore, it
becomes a question of evidence to be decided on the facts of each case. A failure
to register a transfer within one month of the application, which was contrary to
the listing agreement, was held to be an unreasonable delay.
Every shareholder has an interest in the proper maintenance of the company's
register of members. Any member can make an application without showing any
injury or prejudice to him. Personal grievance is not necessary for locus standi.
Order of the Tribunal [Sub-section 2]
Tribunal may, after hearing the parties to the appeal either dismiss the appeal or
by order;
a. Direct that the transfer or transmission shall be registered by the company

within a period of ten days of the receipt of the order, or
b. Direct rectification of the records of the depository or the register and in the
latter case, direct the company to pay damages, if any, sustained by the party
aggrieved.
Example 18 – After hearing both parties of appeal over removal of name of
applicant from register of member without sufficient cause, tribunal pass an order
to reinstate the name in register with payment of damages to holder as well cost
of litigation. Company has to pay damages as ordered apart from rectification of
the register.
Rights of holder is protected [Sub-section 3]
Sub-section 3 protects the right of a holder of securities, to transfer such securities.
Further, any person acquiring such securities shall be entitled to voting rights

a
unless the voting rights have been suspended by an order of the

Tribunal.
Transfer of Securities contravenes certain Acts and Direction of Tribunal [Sub-

Section 4]
Tribunal may, on an application (made by the depository, depository participant,

company, the holder of the securities or the Securities and Exchange Board), direct
any company or a depository to set right the contravention and rectify its
register or records concerned, where the transfer of securities is in contravention
of any of the provisions of the;
a. The Securities Contracts (Regulation) Act, 1956
b. The Securities and Exchange Board of India Act, 1992
c. The Companies Act, 2013 or
d. Any other law for the time being in force
11. ALTERATION OF SHARE CAPITAL

[SECTIONS 61-70]
Bonus Issue
(section 63)
Rights Issue Reduction
(section 62) (section 66)
Power to limited Alteration

Buy back
companies of Share
(Section 68)
(section 61) Capital

Definition:
1. Authorised Capital or Nominal Capital
Section 2(8) defines the term authorised capital or nominal capital to mean such
capital as is authorised by the memorandum of a company to be the maximum
amount of share capital of the company.
2. Called-up Capital
Section 2(15) states that the term called-up capital means such part of the capital,
which has been called for payment.
POWER OF LIMITED COMPANY TO ALTER ITS SHARE CAPITAL [SECTION

61]
A limited company with a share capital can alter the capital clause of its
memorandum of association in any of the following ways, provided authority to
alter is given by the articles.
a. It may increase its authorised capital by such amount as it thinks expedient.
b. Consolidate and divide the whole or any part of its share capital into shares
of larger amount.
c. Convert all and any of its fully paid up shares into stock or vice-versa into
any denomination.
d. Sub-divide the whole or any part of its share capital into shares of smaller
amount.
The proportion between the amount paid and unpaid (if any) on each reduced
share shall be the same as it was in the case of the share from which the
reduced share is derived.
e. Cancel those shares which have not been taken up and reduce its capital
accordingly.
Example 19 – A share with face value of ` 100, on which ` 80 is paid up, can be
split into 10 shares of ` 10 nominal value each, with ` 8 being paid up.
Note:
Any of the above things can be done by the company by passing a resolution at
a general meeting.

a
Approval of the National Company Law Tribunal requires only in the case wherein
consolidation and division [suggested in point (b)] results in changes in the voting
percentage of shareholders.
Within 30 days of alteration, a notice must be given in Form SH-7 to the Registrar
who will record the same and make necessary alteration in the company's
memorandum. (Section 64 read with Rule 15 of the Companies (Share Capital and
Debentures) Rules, 2014).
Further subsection 2 provides that the cancellation of shares shall not be deemed
to be a reduction of share capital. Mind it, reduction of capital covered under
FURTHER ISSUE OF SHARE CAPITAL – RIGHTS ISSUE; PREFERENTIAL
ALLOTMENT [SECTION 62]
A rights issue involves pre-emptive subscription rights to buy additional securities
in a company offered to the company’s existing security holders. It is a non-dilutive
prorata way to raise capital.
Example 20 - If a company announces ‘1:10 rights issue’, it means an existing
shareholder can buy one extra share for every ten shares held by him/her. Usually
the price at which the new shares are issued by way of rights issue is less than the
prevailing market price of the stock to encourage subscription.
Practical Insight
Right Issue by Suzlon Energy Limited (October 2022)
Suzlon Energy Limited (SEL) is among the world's leading renewable energy
solutions provider in India operating in wind energy segment.
To part finance its needs for repayment/prepayment of certain borrowings
(` 900.00 crore) and general corporate purposes (` 283.50 crore), SEL is offering a
rights issue of 240 crore equity shares (Face Value ` 2) each at a price of ` 5 per
share (Current Market Price of Share was ` 8.47) to mobilize ` 200.00 crore.
The company is offering the right shares in the ratio of 5 shares for every 21 shares
held as of the record date of October 04, 2022. Rights entitlements can be
renounced up till Oct 14, 2022 (Current Market Price of Rights Entitlement was
` 1.32).

The issue opens for subscription on October 11, 2022, and will close on October
20, 2022.
Only 50% amount (i.e. ` 2.50 per share) is to be paid on application and the balance
on one or more calls by the company from time to time.
Post allotment, shares will be listed on BSE and NSE.
SEL is proposed to spend ` 16.50 crore for this Right Issue process.
Class of companies Power to Right Issue Applicable Provisions

Listed companies or Provisions of the Securities and
companies intended Exchange Board of India Act,
to get its securities 23(1)(c) 1992 and the rules and
listed regulations made thereunder
Public companies
not covered above Provisions of this Act and rules
Private companies made thereunder
23(2)(a)
not covered above
Offering of issue of further Shares [Sub-section 1]
Issue of Further
Shares
To existing equity
To employees To any person
shareholders
Employee Stock For cash or non-
Right Issue
Option cash considerations
u/s 62(1)(a)
u/s 62(1)(b) u/s 62(1)(c)
(Special Resolution +
(Special Resolution) (Special Resolution)
Offer through notice)

a
Whenever a company having a share capital, proposes to increase its subscribed

capital by the issue of further shares, such shares shall be offered;
a. To persons who are holders of equity shares (existing on date of such offer),
1. in proportion to the paid-up capital on those shares held by them;
2. by sending a letter of offer in form of notice, such notice shall specify;

i. Specify the number of shares to be offered
ii. Specify the time period within which the offer must be accepted.
The time period should not be less than 15 days or such lesser
number of days as may be prescribed but not exceeding 30 days
from the date of the offer
Note – Rule 12A inserted in the Companies (Share Capital and

Debentures) Rules, 2014, that provides the time period within which the
offer shall be made for acceptance shall be not less than seven days
from the date of offer 31
iii. Specify, if the offer is not accepted within the specified time, it shall be
deemed to have been declined.
iv. Confirm the right to renounce all or any of shares to existing holders,
in favour of some other person; unless article otherwise provided.
Note:
1. If offer declined by existing holder, then at intimation of such decline
or after expiry of the specified time given to him for exercise the right,
the Board of Directors may dispose of them (such shares, in regard to
which offer is declined) in such manner which is not dis-advantageous
to the shareholders and the company.
2. While determining/checking proportion, then as nearly as the
circumstances admits shall be acceptable.
31
G.S.R. 113(E) dated 11th Feb 2021

3. In case of a Private Company 32 and Specified IFSC Public Company 33,

any shorter time periods to accept the offer may be provided, if ninety
percent of the members have given their consent in writing or in
electronic mode for such shorter period
b. To employees under a scheme of employees’ stock option, subject to:
1. Special resolution passed by company, and
2. Conditions as may be prescribed in Rule 12 of the Companies (Share

Capital and Debentures) Rules, 2014.
Note:
1. The term ‘employees’ stock option’ means the option given to the
directors, officers or employees of a company or of its holding company
or subsidiary company or companies, if any, which gives such directors,
officers or employees, the benefit or right to purchase, or to subscribe
for, the shares of the company at a future date at a pre-determined
price (Section 2(37)
2. Instead of special resolution, ordinary resolution will be sufficient, in

following cases;
a. Private company which has not defaulted in filing its financial

statements under Section 137 or Annual Return under Section 92. 34
b. Specified IFSC Public Company.35
3. In case of a listed company, conditions prescribed by SEBI (Share

Based Employee Benefits) Regulations, 2014 shall be observed.
c. To any persons, if so authorised by a special resolution even if they are not

within the two categories mentioned above.
32
GSR 464 (E), dated 5th June, 2015 as amended by GSR 583 (E), dated 13th June, 2017
33
34
35

a
Note:
1. Where further shares are offered through manner specified in point iii
above, then such offer can be for cash or for a consideration other
than cash.
2. Further, in case of non-cash consideration, price to be determined by
valuation report of a registered valuer subject to such conditions as
may be prescribed in Rule 13 of the Companies (Share Capital and
Debentures) Rules, 2014.
Example 21 - A company, listed at Bombay Stock Exchange, intends to offer its

further shares to the non-members. The existing members of the company consider
such offer as invalid in view of the provisions contained in Section 62 (1) (a).
However, the company is not prohibited in absolute terms while offering new
shares to the non-members. It can do so after passing a special resolution as
required in Section 62 (1) (c). Thus, new shares of a company limited by shares may
be issued to non-members under certain circumstances.
Illustration– Q&A
What shall be length of period specified by notice of offer of further issue for giving
acceptance?
Answer – Notice of offer of further shares shall specify the time period within
which the offer must be accepted. The time period should not be less than 15 days
or such lesser number of days as may be prescribed but not exceeding 30 days
from the date of the offer
Note – Rule 12A inserted in the Companies (Share Capital and Debentures) Rules,
2014, provides the time period within which the offer shall be made for acceptance
shall be not less than seven days from the date of offer.
Dispatch of Notice to the existing Shareholders [sub-section 2]
Notice referred in sub-section (1) shall be dispatched through registered post or

speed post or through electronic mode or courier or any other mode having proof
of delivery to all the existing shareholders at least three days before the opening
of the issue.

In case of a Private Company 36 any shorter length (less than 3 days) of notice
period shall also be acceptable, if ninety percent of the members have given their
consent in writing or in electronic mode for such shorter period.
Example 22 – Notice of right issue dispatch to holders at their registered e-mail ID

in two days advance to opening of issue. Out of 4230 members 3075 member
holding 94% of shares acknowledges the mail and consented to shorter length of
notice. Despite the mode of dispatching notice and furnishing consent by members
to shorter length is valid, the notice stands invalid because at-least 90% of
members shall give their consent to shorter length of notice; where as in given case
nearly 72.70% (3075 out of 4230) given consent. Here number of members is to be
considered not their holding.
Exception – Section 62 shall not be applicable on conversion of debenture or
loan into equity shares [Sub-section 3]
Conversion of debenture (pursuant to conditions of issue) or loan (pursuant to

conditions of grant of loan) into equity shares leads to increase in the subscribed
capital of a company.
Sub-section 3 states section 62 shall not be applicable to such increase in
subscribed capital provided;
a. Those terms and conditions under which such conversion took place,
b. Must be approved by company in general meeting through special

resolution,
c. Prior to issue of debenture and grant of loan.
Compulsorily conversion of Debentures/Loan from government into Shares
[Sub-section 4, 5 and 6]
Sub-section 4 empowers the government to direct by order;
a. Conversion of debentures (issued to government) or loans (issued by

government) to company, either full or in part thereof into shares of such
company,
b. If that Government considers it necessary in the public interest so to do,
36

a
c. on such terms and conditions as appear to the Government to be

reasonable in the circumstances of the case,
d. even if terms of the issue of such debentures or the raising of such loans
do not providing for an option for such conversion.
Proviso to sub-section 4 provides remedy to company against hostile

conversion.
Where the terms and conditions of such conversion are not acceptable to the
company, it may appeal to the Tribunal, within sixty days from the date of
communication of such order.
Tribunal after hearing the company and the Government shall pass such order as it
deems fit.
Sub-section 5 requires, government shall consider following while determining

the terms and conditions of conversion;
a. the financial position of the company,
b. the terms of issue of debentures or loans, as the case may be,
c. the rate of interest payable on such debentures or loans, and
d. such other matters as it may consider necessary.
Sub-section 6 states pursuant to order of government for conversion of debenture
and loan into equity shares, under sub-section 4, the authorised share capital of
such company shall stand increased by an amount equal to the amount of the
value of shares which such debentures or loans or part thereof has been converted
into and memorandum shall stand altered.
Section 62 shall not apply to Nidhi Company. While complying with such exception,
the Nidhi Companies shall ensure that the interests of their shareholders are
protected.37
ISSUE OF BONUS SHARES [SECTION 63]

The term bonus share is not defined anywhere in the Companies Act 2013. However,
the characteristics of bonus shares along with condition and manner of issue of fully
paid-up bonus share by a company to its member highlighted by section 63.
37
GSR 465 (E), dated 5th June, 2015

In commercial parlance, the bonus shares are shares issued proportionately by a

company to its current shareholders as fully paid-up shares free of cost.
Example 23 – If a company decided to issue bonus share in ratio of 1:2 (one for
every two shares held), then the holder of 100 shares of a company will get 50
bonus share without making any payment. There his holding of shares will now be
150 instead of 100.
Status of Bonus Shares from lens of the Judiciary
Hon’ble Supreme Court in case of Standard Chartered Bank v Custodian 38
Bonus share is an accretion. A bonus share is issued when the company capitalises
its profits by transferring an amount equal to the face value of the share from its
reserve to the nominal capital.
In other words, the undistributed profit of the company is retained by the company
under the head of capital against the issue of further shares to its shareholders.
Bonus shares have, therefore, been described as a distribution of capitalised
undivided profit.
In the case of issue of bonus share there is an increase in the capital of the company
by transferring of an amount from its reserve to the capital account and thereby
resulting in additional shares being issued to the shareholders.
A bonus share is a property which comes into existence with an identity and value
of its own and capable of being bought and sold as such.
Sources for issue of Bonus Share [Sub-section 1]

A company may issue fully paid-up bonus shares to its members out of;
a. its free reserves (other than revaluation reserve);
b. the securities premium account; or
c. the capital redemption reserve account.
38
(2000) 6 SCC 427

a
Bonus shares shall not be issued by capitalising reserves created by the revaluation
of assets [Proviso to section 63(1)]
Bonus shares may be issued from Bonus shares shall not be issued from
Free Reserves Revaluation Reserve
Securities Premium Reserve
Capital Redemption Reserve
Pre-requisites for issue of bonus shares [Sub-section 2]

No company may capitalise its profits or reserves for the purpose of issuing fully
paid-up bonus shares, if;
a. it is authorised by its Articles,
b. it has on the recommendation of the Board, been authorised in the general
meeting of the company;
c. it has not defaulted in payment of interest or principal in respect of fixed

deposits or debt securities issued by it;
d. it has not defaulted in respect of the payment of statutory dues of the
employees, such as, contribution to provident fund, gratuity and bonus;
e. the partly paid-up shares, if any outstanding on the date of allotment, are
made fully paid-up;
f. it complies with such conditions as prescribed by Rule 14 of the Companies
(Share capital and debenture) Rules, 2014, that a company which has once
announced the decision of its Board recommending a bonus issue, shall not
subsequently withdraw the same.
Note:
1. The bonus shares shall not be issued in lieu of dividend (Sub-section 3 to
section 63)
2. Proviso to sub-section 5 to section 123 of this act carries confirmatory
provisions to those contained in section 63.
According to the proviso to Section 123(5) of the Act, it is permissible for a

company to capitalise its profits or reserves for the purpose of issuing fully paid
up bonus shares or paying up any amount for the time being unpaid on any
shares held by the members of the company.
Illustration – True/False
Bonus share can be issued to partly paid shares in proportion to paid-up value.
Answer – False, Bonus shares can only be issued against fully paid, the partly paid-
up shares, if any outstanding on the date of allotment, are made fully paid-up.
NOTICE TO BE GIVEN TO REGISTRAR FOR ALTERATION OF SHARE

CAPITAL [SECTION 64]
As and when, there is an alteration (including increase and decrease) of share
capital, the company concerned shall notify the registrar. The provisions in this
respect are contained in Section 64.
Filing of Prescribed Notice [sub-section 1]
Company shall file a notice in the Form No. SH-7 as per Rule 15 of the Companies
(Share Capital and Debentures) Rules, 2014 with the Registrar, along with an
altered memorandum; within thirty days of alteration (including increase or
decrease) to its capital in case of;
a. Alternation of capital in manner specified in section 61 (1),
b. Order made by the Government under section 62(4) read with 62(6) has the
effect of increasing authorised capital of a company; or
c. Redemption of any redeemable preference shares,
Penalty for Default in Filing of Notice [Sub-section 2]
Where any company fails to file notice as manner prescribed in sub-section 1 then
such company and every officer who is in default shall be liable to a penalty of five
hundred rupees for each day during which such default continues, subject to a
maximum of five lakh rupees in case of a company and one lakh rupees in case of
an officer who is in default.

a
Summary of penalty
Liable Penalty
Company Five hundred rupees for each day during which such default
continues, subject to a maximum of five lakh rupees
Every officer who Five hundred rupees for each day during which such default
is in default continues, subject to a maximum of one lakh rupees
REDUCTION OF SHARE CAPITAL [SECTION 66]
Conservation of capital is one of the main principles of company law, because any
reduction of capital diminishes the fund; out of which creditor and other debt
holders are to be paid, therefore it adversely impact them. But sometimes it may
become necessary for the company to bring about a reduction in its capital.
Therefore, closely fenced power is given by Section 66.
Reduction of Share Capital by Special Resolution to be confirmed by Tribunal

[Sub-section 1]
A company being ‘company limited by shares’ or ‘company limited by

guarantee and having a share capital’ may reduce the share capital in any
manner and in particular manners as state below -
a. Extinguish or reduce the liability on any of its shares in respect of the share
capital not paid-up; or
b. Cancel any paid-up share capital which is lost or is unrepresented by any

available assets; or
c. Pay off any paid-up share capital which is in excess of the wants of the
company
a. Subject to Passing a special resolution; and
b. Alter its memorandum by reducing the amount of its share capital and
of its shares accordingly; and
c. Repayment of any deposits accepted by it, either before or after the

commencement of this Act, or the interest payable thereon shall not be
in arrear.

Example 24 - In respect of a share of ` 10, a company has called only ` 7 per share
and the same has been paid by all the shareholders. The company decides not to
call remaining ` 3 per share and reduces its shareholders’ liability. If done, the
company is said to have reduced its share of ` 10 to
` 7 as fully paid-up share.
Issue of Notice by the Tribunal [Sub-section 2]
The Tribunal shall give notice of every application made to it;
a. to the Central Government (power delegated to Regional Directors)

b. to the Registrar and
c. to the Securities and Exchange Board, in the case of listed companies, and
d. the creditors of the company
Tribunal shall consider the representations (if any) made by them within a period
of three months from the date of receipt of the notice.
Note:
1. Where no representation has been received within the said period of three
months, it shall be presumed that they have no objection to the reduction.
2. Considering representations is statutorily required, not admitting it in full.
Example 25 – An application for reduction of capital received by NCLT on 22 nd

November 2022 from a unlisted company, he send a notice of such application to
concerned RD, RoC as well as to creditor on 28 th November 2022. Notice to RD and
RoC sent in registered post which reached to them on 1 st December 2022. Hence
in given case RD and RoC can make representation till 28 th Feb 2023. If any
representation made thereafter, Tribunal is not bound to consider that.
Order of Tribunal [Sub-section 3]
The Tribunal may make an order confirming the reduction of share capital on
such terms and conditions as it deems fit only if it is satisfied that -
a. The debt or claim of every creditor of the company has been either
i. Discharged or
ii. Determined or

a
iii. Has been secured or
iv. His consent is obtained.

b. The accounting treatment, proposed by the company for such reduction is
in conformity with the accounting standards specified in Section 133 or any
other provision of this Act.
How tribunal determine that, ‘whether accounting treatment, proposed by the

company for such reduction is in conformity with the accounting standards
specified in Section 133 or not’?
While making an application, a certificate to that effect by the company’s auditor

has been filed with the Tribunal.
Publication of Order of Confirmation of Tribunal [Sub-Section 4]

The order of confirmation of the reduction of share capital by the Tribunal shall be
published by the company in such manner as the Tribunal may direct.
Delivery of Certified Copy of Order of Tribunal to Registrar [Sub-section 5]
Within thirty days of the receipt of the copy of the order, the company shall
deliver; to the Registrar, a certified copy of the tribunal order and minutes
(containing special resolution) approved by the Tribunal showing;
a. the amount of share capital;
b. the number of shares into which it is to be divided;
c. the amount of each share; and
d. the amount, if any, at the date of registration deemed to be paid-up on each
share,
Registrar on receipt, shall register the same and issue a certificate to that effect.
Exemption to Buy-Back [Sub-section 6]
Nothing in this section shall apply to buy-back of its own securities by a company
under Section 68.
No Liability of Members [Sub-Section 7]
A member (whether in past or present) shall be liable to pay the amount (call or
contribution) maximum upto difference (if any) between the amount deemed to
have been paid on his shares and the nominal value of the reduced shares.

‘Deemed to have been paid’ here signify reduced amount against the amount that
have been actually paid on the share.
In case where Creditor is entitled to object but was not included in the list
of Creditors [Sub-section 8]
If a reduction of share capital took place; and where a creditor is entitled to object
to a reduction of share capital, but his name and interest (his debt or claim on
company) not entered on the list of creditors, either because of:
a. His ignorance of the proceedings for reduction or
b. Nature of his interest (debt or claim)
Then in respect of his interest, company commits a default, within the meaning
of section 6 of the Insolvency and Bankruptcy Code, 2016.
Action to make claim of creditor good (Remedy available to such unpaid
creditor)
If company is running its operation
a. Every person, who was a member of the company on the date of the
registration of the order for reduction by the Registrar,
b. Shall be liable to contribute to the payment of such debt or claim,

c. But not exceeding the amount which he would have been liable to
contribute if the company had commenced winding up on the day
immediately before the said date.
If company is wound up
The Tribunal may, on the application of any such creditor and proof of his
ignorance as aforesaid, if it thinks fit,
a. Settle a list of persons so liable to contribute, and
b. Make and enforce calls and orders on the contributories settled on the list,
as if they were ordinary contributories in a winding up.
Example 26 – Name and Interest of Mr. Nilanjan Iyer, a creditor of Modern

Furniture Limited has been kept outside the list of creditor while company went
into reduction of its capital; later when Mr. Iyer came to know about this he wish
to take legal action against company under IBC 2016, as limitation period is not

a
expired yet. Mr. Iyer entitled to do so, exclusion of his name construe as offence
under IBC as well.
Note: Period of limitation is a maximum period set by statute within which a legal
action can be brought or a right enforced. The Limitation Act 1963 governing the
provisions regarding period of limitation.
Rights of Contributories not affected [Sub-section 9]

Sub-section 9 is overriding provision that prevent the rights of contributories
inter-se. Nothing in sub-section 8 shall affect the rights of the contributories
among themselves.
Liability of Officers [Sub-section 10]
Officer of the company shall be liable for punishment under section 447, if he:
a. Knowingly conceals the name of any creditor entitled to object to the
reduction or abets or is privy to any such concealment; or
b. Knowingly misrepresents the nature or amount of the debt or claim of any
creditor or abets or is privy to any such misrepresentation.
Note:
1. Abet means to encourage or incite another to commit a crime
2. Privy signify a coparticipant; one who has an interest in a matter
3. The provisions contained in Section 447 which describe ‘punishment for
fraud’ are stated in the earlier Chapter 3 relating to ‘Prospectus and
Allotment of Securities’.
RESTRICTION ON PURCHASE BY COMPANY OR GIVING OF LOANS BY IT

FOR PURCHASE OF ITS SHARES [SECTION 67]
Conservation of capital is one of the main principles of company law, because the
share capital of a company is the only security on which the creditors rely.
Therefore, a company cannot buy its own shares because reduction of capital,
results in diminishing of the fund out of which creditor are to be paid; hence
adversely affect the creditors. However, this restriction is not absolute.

Reduction according to the applicable Provisions [Sub-section 1]
‘Company limited by shares’ or ‘company by guarantee that having a share capital’

shall not buy its own shares unless the consequent reduction of share capital is
effected under the provisions of this Act.
Restriction on giving Loan, Guarantee or provision of Security, etc. [Sub-

section 2]
Public company shall not give any financial assistance;
a. Whether directly or indirectly and whether by means of a loan, guarantee, the

provision of security or otherwise
b. For the purpose of, or in connection with, a purchase or subscription made

or to be made, by any person of or for any shares in the company or in its
holding company.
Exceptions [Sub-section 3]
Company may provide the financial assistance, in following case;
a. Lending of money by a banking company in the ordinary course of its

business;
Note:
1. The words "lending in the ordinary course of business" are not defined
2. Banks have to make loans in the ordinary course of their business and they
can hardly supervise the purpose for which the borrower uses the loan
money. Hence if a borrower from a bank uses the money for purchasing
the bank's shares, the bank and its officers will be protected from liability.
3. An English court held that where money is given for the very purpose of
purchasing the bank's shares that would not be lending in the ordinary
course of business, then the provision would said to be violated.
b. The provision of money for the purchase of fully paid shares in the company
or its holding company by trustees for and on behalf of the company's
employees in accordance with any scheme (Employee share schemes)
approved by company through special resolution with such requirements

a
as may be prescribed in Rule 16 of the Companies (Share Capital and

Debentures) Rules, 2014,
Note:
1. In case the shares of the company are listed - Such purchase of shares shall
be made only through a recognized stock exchange and not by way of private
offers or arrangements.
2. Where shares of a company are not listed - the valuation at which shares are
to be purchased shall be made by a registered valuer.
3. The value of shares to be purchased or subscribed in the aggregate shall
not exceed five percent of the aggregate of paid up capital and free reserves
of the company;
4. Disclosures in respect of voting rights not exercised directly by the
employees in respect of shares to which the scheme relates shall be made in the
Board’s report for the relevant financial year, namely:
(a) Names of the employees who have not exercised the voting rights
directly;
(b) Reasons for not voting directly;
(c) Name of the person who is exercising such voting rights;
(d) Number of shares held by or in favour of, such employees and the
percentage of such shares to the total paid up share capital of the
company;
(e) Date of the general meeting in which such voting power was exercised;
(f) Resolutions on which votes have been cast by persons holding such
voting power;
(g) Percentage of such voting power to the total voting power on each
resolution;
(h) Whether the votes were cast in favour of or against the resolution.
c. Lending money by a company to its employees (other than its directors or key
managerial personnel), not exceeding six month salary of the employees to
enable them to buy or subscribe fully paid shares in the company or its holding
company and to hold them by way of beneficial ownership.

Redemption of Preference Shares Permitted [Sub-section 4]
Nothing in Section 67 shall affect the right of a company to redeem any preference
shares issued under this Act or under any previous company law.
Punishment for Contravention [Sub-section 5]
If a company contravenes the provisions of this section, the punishment shall be;
Liable Penalty
Company Fine which shall not be less than one lakh rupees but may
extend to twenty-five lakh rupees
Every officer of Imprisonment for a and Fine which shall not be less
the company term which may than one lakh rupees but may
who is in default extend to three years extend to twenty-five lakh
rupees.
1. Section 67 shall not apply to private companies 39 (if not defaulted in filing
its financial statements under Section 137 and Annual Return under Section
92) and Specified IFSC Public Company 40 in whose case all of following 3
condition fulfilled;
a. in whose share capital no other body corporate has invested any

money;
b. if the borrowings of such a company from banks or financial institutions
or anybody corporate is less than twice its paid-up share capital or fifty
crore rupees, whichever is lower; and
c. such a company is not in default in repayment of such borrowings
subsisting at the time of making transactions under this section.
39
40

a
2. Section 67 (1) shall not apply to Nidhi Companies, when shares are
purchased by the company from a member on his ceasing to be a depositor
or borrower and it shall not be considered as reduction of capital under
Section 66 of the Companies Act, 2013. While complying with such exception,
the Nidhi Companies shall ensure that the interests of their shareholders are
protected.41
POWER OF COMPANY TO PURCHASE ITS OWN SECURITIES [SECTION 68] -

BUY BACK OF SECURITIES
Buy back is the re-acquisition by a company of its own securities. It is a way of
returning money to its investors. Section 68 contains provisions which describe the
power of a company to purchase its own securities subject to the applicable
conditions.
Sources of Funds for Buy-Back of Shares [Sub-section 1]
A company may purchase its own shares or other specified securities. The purchase
should be made out of its:
a. Free reserves; or
b. Securities premium account; or
c. Proceeds of the issue of any shares or other specified securities.
However, buy-back of shares or other specified securities cannot be made out of
the proceeds of earlier issued shares or other specified securities of same kind.
Specified securities includes employees’ stock option or other securities as may be

notified by the Central Government from time to time (Explanation I to section 68)
Conditions for Buy-Back [Sub-section 2]

A company may purchase its own shares or other specified securities, if met with
following conditions, namely;
a. The buy-back is authorised by its articles;
b. A special resolution authorising the buy-back is passed in general meeting
of the company;
41
GSR 465 (E), dated 5th June, 2015

A special resolution is not necessary where:

1. The buy-back is, not exceeding ten percent of the total paid-up equity
capital and free reserves of the company; and
2. Such buy-back has been authorised by the Board resolution passed at its
meeting;
c. The amount involved in buy-back should not be more 25% of the aggregate
of paid-up capital and free reserves of the company; further in case of
buyback of equity shares, the maximum limit is 25% of its total paid-up
equity capital in any financial year.
d. After the buyback, the ratio between the debts (secured and unsecured)
owed by the company should not be more than twice the paid-up capital
and free resources of the company (Central Government may prescribe a
higher ratio for a class or classes of companies).
e. Shares or other specified securities for buy-back shall be fully paid-up;
f. The buy-back should be in accordance with the Rule 17 of the Companies
(Share Capital and Debentures), Rules, 2014; but in case of listed shares or
other specified securities should be in accordance with regulations made by
the Securities and Exchange Board of India in this behalf.
No offer of buy-back shall be made within one year reckoned from the date of the
closure of the preceding offer of buy back [Proviso to section 68(2)]
Free reserves includes securities premium account (Explanation II to section 68)
Illustration – MCQ
Buy-back with board resolution is allowed, if amount involved is
a. Not exceeding twenty five percent of the total paid-up equity capital and free
reserves of the company
b. Not exceeding twenty five percent of the total paid-up equity capital
c. Not exceeding ten percent of the total paid-up equity capital and free reserves
of the company
d. Not exceeding ten percent of the total paid-up equity capital
Answer– c [refer Section 68(2)]

a
Procedure before Buy-Back [Sub-section 3]

The notice of the meeting at which special resolution is proposed to be passed shall
be accompanied by an explanatory statement stating -
a. a full and complete disclosure of all the material facts;
b. the necessity for the buy-back;
c. the class of shares or securities intended to be purchased under the buy back;
d. the amount to be invested under the buy-back; and
e. the time limit for completion of buy-back.
Rule 17(1) of the Companies (Share Capital and Debentures), Rules, 2014 specify
list of 14 matters, regarding which particulars shall be stated in explanatory
statement.
Securities to be purchased under ‘Buy-Back’ [Sub-section 5]
The buy-back may be from;
a. the existing shareholders or security holders on a proportionate basis; or
b. the open market; or
c. the securities issued to employees of the company pursuant to a scheme of
stock option or sweat equity.
Declaration of Solvency [Sub-section 6]
A declaration of solvency has to be filed, before the resolution for buying back is
implemented; with the Registrar and also with SEBI, if such shares of such company
are listed on any stock exchange.
Declaration of solvency has to be on a Form SH-9 and verified by an affidavit,
stating that the Board of directors has made a full inquiry into the affairs of the
company and have found that it is capable of meeting all its liabilities and will not
be rendered insolvent for a period of 12 months from the date of the declaration.
It has to be signed by at least two directors of the company, one of whom should
be the managing director, if any.
Example 27 – Form SH-9 filed by a listed company, Rainbow Sports Limited with
registrar as well as SEBI stating Board of directors has made a full inquiry into the
affairs of the company and have found that it is capable of meeting all its liabilities
and will not be rendered insolvent for a period of 6 months from the date of the

declaration. Declaration was duly signed by 3 directors, none of them being MD, as
MD is out of country to attend FIFA world cup event in Qatar (being one of the
sponsors).
There are two lacuna in compliance to sub-section 6, first being declaration shall
be for period of 12 months; secondly if managing director is appointed then he
shall sign the declaration of solvency.
Time limit for Completion of Buy-Back [Sub-section 4]
Every buy-back shall be completed within twelve months from the date of passing
the special resolution or board resolution authorising the buy-back.
Time Check Points and Procedural aspects of Buy-Back

The company before the buy-back of shares, file with the Registrar a letter of
offer in Form No. SH.8, along with the fee. The letter of offer shall be dispatched
to the shareholders or security holders immediately after filing the same with the
Registrar of Companies but not later than twenty days from its filing with the
Registrar of Companies.
The offer for buy-back shall remain open for a period of not less than fifteen
days and not exceeding thirty days from the date of dispatch of the letter of
offer, but where all members of a company agree, the offer for buy-back may
remain open for a period less than fifteen days.
In case the number of shares or other specified securities offered by the
shareholders or security holders is more than the total number of shares or
securities to be bought back by the company, the acceptance per shareholder
shall be on proportionate basis out of the total shares offered for being bought
back.
The company shall complete the verifications of the offers received within
fifteen days from the date of closure of the offer and the shares or other
securities lodged shall be deemed to be accepted unless a communication of
rejection is made within twenty one days from the date of closure of the offer.
The company shall make payment within seven days of verification process
and make payment in cash to those shareholders or security holders whose
securities have been accepted. Company will return the share certificates to the
shareholders or security holders whose securities have not been accepted at all
or the balance of securities in case of part acceptance.

a
Extinguishment of Securities [Sub-section 7]
Where a company buy’s back its own securities or other specified securities, it shall
extinguish and physically destroy the shares or securities so bought-back within
seven days of the last date of completion of buy-back.
Cooling Period – No fresh Issue [Sub-section 8]

Where a company completes a buy-back of its shares or other specified securities,
it shall not make further issue of same kind of shares or other specified securities
within a period of six months.
It may, however, make a bonus issue and discharge its existing obligations such as
conversion of warrants, stock option schemes, sweat equity or conversion of
preference shares or debentures into equity shares.
Note: This restriction applies only to the type of securities bought back. The
company is free to issue other types of security.
Register of Buy Back [Sub-section 9]

The company, shall maintain a register of shares or other securities which have
been bought-back in Form No. SH.10 containing details of;
a. Shares or securities so bought,
b. Consideration paid for the shares or securities bought-back,
c. Date of cancellation of shares or securities,
d. Date of extinguishing and physically destroying the shares or securities and
e. Such other particulars as may be prescribed.
Note:
1. This register shall be maintained at the registered office in the custody of the
secretary of the company or any other person authorized by the board in this
behalf.
2. The entries in the register shall be authenticated by the secretary of the
company or by any other person authorized by the Board for the purpose.

Filing of Return of Buy-back [Sub-section 10]
A return of buy-back in Form No. SH.11 along with the fee shall be filled with;
a. The Registrar and also SEBI, if shares of company are listed on any recognised
stock exchange
b. Containing such particulars relating to the buy-back

c. Within thirty days of such completion.
Note: Along with return, a certificate in Form No. SH.15 signed by two directors of
the company including the managing director, if any, certifying that the buy-back
of securities has been made in compliance with the provisions of the Act and the
rules made thereunder.
Penalty for Default [Sub-section 11]
If a company makes default in complying with the provisions of this section or any
regulations made by Securities Exchange Board of India specified for the purposes
of section 68(2)(f), the company shall be punishable with fine which shall not be
less than one lakh rupees but which may extend to three lakh rupees and every
officer of the company who is in default shall be punishable with fine which shall
not be less than one lakh rupees but which may extend to three lakh rupees.
Summary of punishment
Liable Minimum Fine Maximum Fine
Company One lakh rupee Upto three lakh

rupee
Every officer of the company who is in default
Illustration – True and False
Passing an ordinary resolution is sufficient where the buy-back is, not exceeding ten
percent of the total paid-up equity capital and free reserves of the company.
Answer - False, such buy-back has to be authorised by the Board resolution passed
at its meeting.

a
TRANSFER OF CERTAIN SUMS TO CAPITAL REDEMPTION RESERVE

ACCOUNT [SECTION 69]
Section 69 requires certain amount to be transferred to the capital redemption

reserve (CRR) account in case a company buys back its own shares.
Amount to be transferred to CRR Account [Sub-section 1]

Where a company purchases its own shares out of free reserves or securities
premium account, then;
a. Sum equal to the nominal value of the share so purchased shall be
transferred to the capital redemption reserve account; and
b. Details of such transfer shall be disclosed in the balance sheet.
Application of CRR Account [Section 2]
The capital redemption reserve account may be applied by the company, in paying
up unissued shares of the company to be issued to members of the company as
fully paid bonus shares.
Similar use of CRR is also specified under-section 55(4) of this Act, that created
when preference shares redeemed out of profit, as provided under section 55(2)(c).
CRR can be used to issue partly paid bonus shares or finance discount portion of
sweat equity shares.
Answer - False, the capital redemption reserve account may be applied by the
company, in paying up unissued shares of the company to be issued to members
of the company as fully paid bonus shares.
PROHIBITION FOR BUY-BACK IN CERTAIN CIRCUMSTANCES [SECTION 70]
Sub-section 1 states no company shall directly or indirectly purchase its own
shares or other specified securities;
a. Through any subsidiary company including its own subsidiary companies; or
b. Through any investment company or group of investment companies; or
c. If a default, is made by the company, in
i. repayment of deposits or interest thereon, or
ii. redemption of debentures, or

iii. redemption of preference shares or

iv. payment of dividend to any shareholder or
v. repayment of any term loan or interest thereon to any financial

institutions or banking company
Note:
1. Specified securities includes employees’ stock option or other securities as

may be notified by the Central Government from time to time (Explanation I
to section 68)
2. Where the default is remedied and a period of three years has lapsed after
such default ceased to subsist, such buy-back is not prohibited.
Further sub-section 2 prohibit the company from directly or indirectly to purchase

its own shares or other specified securities in case such company has not complied
with provisions of
a. Section 92 (Annual Report),
b. Section 123 (Declaration and Payment of Dividend),
c. Section 127 (Punishment for failure to distribute dividends), and
d. Section 129 (Financial Statement).
Example 28 – Sigma Electronic Limited (SEL) was financial unstable in 2018 due to
economic slowdown, finally it made default in repayment of loan that it has taken
from public finance corporation in June 2020 pursuant to cash crunch caused by
nation-wide lock down. SEL’s account was marked in defaulters list by lender and
classified in NPA category. But stimulus package helped SEL to pass the high
turbulence phase, it able to repay the due amount on December 2020. In February
2021 SEL account removed from NPA category. SEL won a tender in mid of 2021
and become supplier to military retail canteens. SEL accumulate reasonable amount
of reserve and attain the position cash surplus. SEL decided to Buy-back 10% of its
equity shares in December 2022.
Consider the facts stated in case, SEL shall not be allowed to buy-back it securities
as 3 years has not been elapse since when default is remedied.

a
12. DEBENTURE [SECTIONS 71]
DEFINITION AND FEATURES OF DEBENTURE

Definition [Section 2(30)]
Debenture includes debenture stock, bonds or any other instrument of a company
evidencing a debt, whether constituting a charge on the assets of the company
or not
Provided that following shall not be treated as debenture
a. the instruments referred to in Chapter III-D of the Reserve Bank of India Act,
1934; and
b. such other instrument, as may be prescribed by the Central Government in
consultation with the Reserve Bank of India, issued by a company,
Debenture Includes Debenture Excludes
Debenture stock Instruments referred to in

Chapter III-D of the Reserve
Bonds
Bank of India Act, 1934
Any other instrument of a
and
company evidencing a debt
Such other instrument, as may
be prescribed by the Central
Whether constituting a charge on Government
the assets of the company or not
Features of Debentures
a. A debenture is the smallest unit of a sizeable amount of loan.
b. When debentures are issued, the applicants are given certificates
representing the money they have lent to the company.

c. A debenture certificate is issued by the company under its common seal, if

any, or under the signatures of two directors or a director and the company
secretary, if he has been appointed.
d. The company pays periodic interest on the amount raised by issuing
debentures till they are fully redeemed.
e. A debenture is generally pre-fixed with the rate of interest which the
company intends to pay.
Example 29 - The name ‘10% Debentures’ indicates that the company shall pay
interest at the rate of 10% on the outstanding amount till maturity of such
debentures.
f. Voting rights are not available in case of debentures as section 71 (2) of
the Act, clearly states that no company shall issue any debentures carrying
any voting rights.
g. As per section 44 of the Act, a debenture is in the nature of movable
property which is transferable as per the provisions contained in the Articles
of the company issuing the debentures.
h. A debenture may be secured or unsecured. In case of secured debentures, a
charge is created on the assets of the company in favour of debenture trustee.
i. As per the terms of the issue of debentures, they may be redeemed (i.e.
repaid) at the end of full term or in installments, say yearly or bi-yearly or
any other period like in two installments.
j. The terms of issue may also provide for conversion of debentures at maturity
into equity shares at the option of the debenture holders.
k. The debenture certificates are required to be delivered within a period of
six months under section 56(4)(d) of the Act, from the date of allotment
of debentures, unless the company is prohibited by any provision of law or
any order of Court, Tribunal or any other authority.
Example 30 - Sigma Computers Limited desires to borrow ` 50,00,000 from the
public by issuing 7% debentures. It is intended that each unit of debenture shall be
of ` 100. Thus, it can issue 50,000 debentures of ` 100 each carrying 7% rate of
interest which can be paid at the end of every quarter. If such debentures (secured
by a charge on the assets of the company) are issued for six-year duration, the

a
principal amount shall be repaid by the end of sixth year. The terms of issue may
even allow repayment of principal amount in equal yearly instalments, in which case
a portion of debentures shall be redeemed on yearly basis and the company shall
be required to pay interest only on the outstanding amount. The debenture holders
may also be given the option of converting their debentures into equity shares at
the time of maturity.
Thus, Sigma Computers Limited is able to borrow a large sum of money from
different borrowers with the help of debentures and it is not required to approach
a single borrower for such a big amount.
In other words, ‘issue of debentures’ is the most convenient way of borrowing large
sums of money and at the same time the debenture holders do not exert any
influence over the ownership and working of the company unless their interest is
jeopardized by certain decisions.
Type of Debentures
On the basis of
On the basis of On the basis of
convertibility to
security redeemability
shares
Convertible
Secured (mandatorily or Redeemable
optionally;
partially or fully)
Un-secured Irredeemable
Non-convertible
MANNER OF ISSUE OF DEBENTURES AND APPLICABLE PROVISION

THERETO [SECTION 71]
Issue of Debentures with an Option to Convert [Sub-section 1]
A company if authorised by passing special resolution at general meeting, then it
may issue debentures with an option to convert such debentures into shares,
either wholly or partly at the time of redemption.

No Voting Rights [Sub-section 2]

No company shall issue any debentures carrying any voting rights.
Issue of Secured Debentures [Sub-Section 3]
Secured debentures may be issued by a company subject to such terms and conditions
as are prescribed in Rule 18 (1) of the Companies (Share Capital and Debentures) Rules,
2014; which are explained below;
a. Maximum Period of Secured Debenture
The tenor of secured debenture shall not be more than 10 years from the date of
issue, except in following cases where tenor can be upto 30 years
i. Companies engaged in setting up of infrastructure projects;
ii. Infrastructure Finance Companies as defined in clause (viia) of sub direction
(1) of direction 2 of Non-Banking Financial (Non-deposit accepting or
holding) Companies Prudential Norms (Reserve Bank) Directions, 2007;
iii. Infrastructure Debt Fund NBFCs’ as defined in clause (b) of direction 3 of
Infrastructure Debt Fund Non-Banking Financial Companies (Reserve Bank)
Directions, 2011;
iv. Companies permitted by a Ministry or Department of the Central
Government or by Reserve Bank of India or by the National Housing Bank
or by any other statutory authority to issue debentures for a period
exceeding ten years.
b. Appointment of Debenture Trustee
Debenture trustee shall be appointed by company before the issue of prospectus
or letter of offer for subscription of its debentures.
c. Security by Creation of Charge

Security for the debenture can be provided by way of creating a charge or
mortgage in favour of debenture trustee, on;
i. Specified movable of the company or its subsidiaries or its holding

company or its associates companies, or
ii. Specified immovable properties wherever situate, or any interest therein.

a
Note:
1. Value of such assets or properties upon which charge is created shall be
sufficient for the due repayment of the amount of debentures and interest
thereon.
2. In case of NBFCs, the charge or mortgage may be created on any movable
property.
3. In case of any issue of debentures by a Government company which is fully
secured by the guarantee, given by the Central Government or one or
more State Government or by both, as per the requirement for creation of
charge under rule 18(1) of the Companies (Share Capital and Debentures)
Rules, 2014 shall not apply.
d. Debenture Trust Deed

Debenture trust deed shall be executed in Form SH-12 to protect the interest of
the debenture holders, within three months of closure of the issue or offer.
Creation of Debenture Redemption Reserve (DRR) Account [Sub-section 4
read with Rule 18 (7) of the Companies (Share Capital and Debentures) Rules,
2014]
Company shall create a debenture redemption reserve (DRR) account out of the
profits of the company available for payment of dividend.
The amount credited to such DRR account shall not be utilised by the company
except for the redemption of debentures.
a. Requirement of DRR
Category Publicly placed Privately places

debenture debenture
All India Financial Exempted Exempted
Institutions (regulated by
RBI)
Banking Companies Exempted Exempted
Listed companies (other Exempted Exempted
than All India Financial except except
Institutions and Banking NBFCs not registered NBFCs not registered

Companies covered with RBI u/s 45IA of RBI with RBI u/s 45IA of RBI
above) Act, and for Act,
House Finance House Finance
companies not registered companies not registered
with National Housing with National Housing
bank bank
Unlisted Companies DRR equal to 10% of DRR equal to 10% of
(other than All India Outstanding Debenture Outstanding Debenture
Financial Institutions and Except
Banking Companies
NBFCs registered with
covered above)
RBI u/s 45IA of RBI
House Finance
Companies registered
with National Housing
bank
Note:
1. The main purpose of these relaxations was introduced by the MCA for the
reduction of the cost of borrowings incurred by companies.
2. Other Financial Institution covered under 2(72) of the Companies Act 2013
for purpose of creating and maintaining DRR shall be dealt in manner as Non–
Banking Finance Companies registered with Reserve Bank of India
3. In case of partly convertible debentures, Debenture Redemption Reserve shall

be created in respect of non-convertible portion of debenture
b. Amount and methods of Investment or deposits for debentures maturing

during the fiscal
By 30 th April of each year, the in case of;
Company In case of
Listed Company, other than All Publicly placed debenture

India Financial Institutions and
Banking Companies

a
Unlisted companies, other Publicly placed debenture

than All India Financial &
Institutions, Banking
Privately placed debenture (other than those by
Companies
NBFCs registered with RBI u/s 45IA of RBI and
House Finance companies registered with
National Housing bank)
An amount equal to 15% of its debentures maturing during the financial year,
ending on the 31st day of March of the next year, shall be invested or deposited in
any of following methods of deposits or investments, namely;
a. Deposits with any scheduled bank, free from any charge or lien;
b. Unencumbered securities of the Central Government or any State Government;
c. Unencumbered securities mentioned in sub-clause (a) to (d) and (ee) of section
20 or unencumbered bonds issued by any other company which is notified under
sub-clause (f) of section 20 of the Indian Trusts Act, 1882
The amount remaining invested or deposited, as the case may be, shall not any
time fall below fifteen percent of the amount of the debentures maturing during
the year ending on 31st day of March of that year. Meaning thereby that amount
shall be invested or deposited by 30 th April and maintained there after till end of
financial year (or till maturity if fall earlier).
Restrictions on the Issue of Prospectus/Offer/Invitation to the public [Sub-

section 5]
Prior to issue a prospectus or make an offer or invitation to the public or to its
members exceeding five hundred for the subscription of its debentures, the
company shall appoint one or more debenture trustees. Except in case of public
offer of debenture, in all other cases appointment and removal of debenture trustee
governed by provisions prescribed in Rule 18 (2) of the Companies (Share Capital
and Debentures) Rules, 2014; namely;
a. Name and Consent of Denture Trustee

The names of the debenture trustees shall be stated in offer related letters and
notices or subsequent thereto.

Written consent before the appointment of debenture trustee must be obtain and
statement to that effect shall appear in the letter of offer.
b. Who can be denture trustee?
Following persons shall not be appointed as a debenture trustee,
i. A beneficiary holders of shares in the company;

ii. A promoter, director or key managerial personnel or any other officer or
an employee of the company or its holding, subsidiary or associate
company;
iii. Relative of any promoter, director or key managerial personnel of the
company;
iv. A beneficiary entitled to moneys which are to be paid by the company
otherwise than as remuneration payable to the debenture trustee;
v. Who is indebted to the company, or its subsidiary, holding or associate
company or a subsidiary of such holding company;
vi. Who has furnished any guarantee in respect of the principal debts secured
by the debentures or interest thereon;
vii. Who has any pecuniary relationship with the company amounting to two
per cent or more of its gross turnover or total income or fifty lakh rupees
or such higher amount as may be prescribed, whichever is lower, during the
two immediately preceding financial years or during the current financial
year;
c. Removal of debenture trustee prior to his term
Any debenture trustee may be removed from office before the expiry of his term
only if it is approved by the holders of not less than three fourth in value of the
debentures outstanding, at their meeting.
d. Filling of vacancy of debenture trustee
Nature of vacancy How to fill

Casual Vacancy* Board themselves may fill any casual vacancy
With the written consent of the majority of the
Caused by the resignation
debenture holders.

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*While any such vacancy continues, the remaining trustee or trustees, if any, may
act till appointment made.
Debenture Trustee to protect Interest of Debenture Holders [Sub-section 6]
A debenture trustee shall take steps to protect the interests of the debenture-
holders and redress their grievances. Duties of debenture trustee enumerated
under rule 18(3) of the Companies (Share Capital and Debentures) Rules, 2014.
Further, Rule 18 (4) of the Companies (Share Capital and Debentures) Rules, 2014
requires debenture holders to convene the meeting of all the debenture holders
on:
a. Receiving a request (duly signed and in writing) from debenture holders
holding at least one-tenth in value of the debentures
b. Happening of any such event, which constitutes a breach, default or which in

the opinion of the debenture trustees affects the interest of the debenture
holders.
Note: Rule 18(3) and 18(4) are not applicable in case of public offer of debenture
Example 31 – Roshan Bulb Limited took a bank loan in contravention to covenant

regarding permissible debt-equity ratio, stated in offer document issued for
subscription of its debentures. In this case debenture trustee bound to convene the
meeting of all the debenture holder as decision of taking loan by company is not
only breach but also a default that will affect the interest of the debenture holders.
Liability of Debenture Trustee [Sub-section 7]
Where debenture trustee fails to show the degree of care and due diligence
required of him as a trustee.
Any provision, that exempt or indemnify a debenture-trustee from any liability

for breach of trust; as contained in;
a. A trust deed for securing the issue of debentures or
b. Any contract with debenture holders secured by a trust deed
Shall be void.

Note: Exemptions given to debenture trustee, shall be agreed upon by debenture

holders holding at least 75% value of debentures at time of meeting held for this
purpose.
How to determine the reasonable degree of care and due diligence – Means a
yardstick to determine failure – One have to determine in regard to the provisions
of the trust deed conferring any power, authority or discretion on such debenture
trustee.
Example 32 – Debenture trustee fails in keeping a close watch on change in value

of asset against which such debenture are secured, which is specified a preliminary
responsibility marked upon him; it can be said debenture trustee fails to show
degree of care and due diligence required of him as a trustee.
To pay Interest and Redeem Debentures [Sub-section 8]
A company shall pay interest and redeem the debentures in accordance with the
terms and conditions of their issue.
Filing of Petition before Tribunal by Debenture Trustee [Sub-section 9]
Where debenture trustee reach to conclusion that the assets of the company are
insufficient or are likely to become insufficient to discharge the principal amount
as and when it becomes due, may file a petition before the Tribunal.
The tribunal may pass order:
a. To impose restrictions on the incurring of any further liabilities by the
company as it may consider necessary in the interests of the debenture-
holders.
b. After hearing the company and any other person interested in the matter
Order of Tribunal on Failure to Redeem Debentures/Pay Interest [Sub-section
10]
Tribunal may direct by order;
a. On the company to redeem the debentures forthwith on payment of principal
and interest due thereon
b. After hearing the parties concerned, on the application of any or all of the
debenture-holders, or debenture trustee

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c. Where a company fails to redeem the debentures on the date of their

maturity or fails to pay interest on the debentures when it is due,
Specific Performance of the Contract [Sub-section 12]
A contract with the company to take up and pay for any debentures of the company
may be enforced by a decree for specific performance.
Debenture holder has right to seek relief under the Specific Relief Act, 1963 for
specific performance. Court may pass decree (in favour of denture holder in this
case) under 2(2) of the Civil Procedure Code, 1908 (CPC) and same can be executed
under order 21 of CPC.
Specific performance means, forcing other party (company in this case) of contract
to perform his part of contract (repayment of debenture) through court’s decree.
Decree is final order passed by court as outcome of adjudication, explaining right
of parties.
Procedure to be prescribed by Central Government [Sub-section 13]

Sub-section 13 empowers the Central Government to prescribe the:
a. Procedure for the securing the issue of debentures,
b. Procedure for the debenture-holders to inspect the trust deed and to obtain
copies thereof
c. Form of debenture trust deed,
d. Quantum of debenture redemption reserve required to be created and
e. Such other matters.
If interest to debenture holder remain un-paid for two years then they may vote on
resolution affecting their interests.
Answer – False, no debenture holder can never assume voting right, unless their
debenture is converted in equity as per terms of issue. Though similar provision exist
in case of preference dividend remain unpaid for two year to preference shareholder.

Note:
1. If issue results in debt-equity ratio more than 1 - In case of company other
than private company, the Board of Directors of the company shall obtain
approval of the shareholders through special resolution, if the borrowings by
issuing debentures together with the amount already borrowed exceed the
aggregate of company’s paid-up share capital, free reserves and securities
premium amount, then prior to the issue of debentures.
Note – Borrowing shall not include short term or temporary loan in nature.
2. Pursuant to rule 12 (1) of the companies (Prospectus and allotment of
securities) Rules 2014, a company having share capital, when makes
allotment of any debentures (falls within the definition of ‘securities’), it is
required to file a Return of Allotment in form No. PAS-3 within thirty days
of such allotment with the jurisdictional Registrar.
SUMMARY
 There are two kinds of long-term capital to run a business viz., owners’ capital
and lender’s capital.
 Each type of capital is denominated by different securities with applicable

rights which can be varied by following the legal procedure.
 Most of the requirements applicable to a company are to be in accordance

with its Articles of Association and Memorandum of Association or with the
decisions taken by the shareholders at the general meetings but they must
be legally valid as per the provisions of the Companies Act.
 There are mandated provisions relating to the application of securities

premium amount.
 Companies are not permitted to issue shares at a discount except when such
shares are issued as sweat equity.
 No company can issue irredeemable preference shares. Maximum tenor of

redeemable share also capped upto twenty years with exception in case
infrastructure project, where it can be issued for maximum upto thirty years.
 Only fully paid-up preference shares are eligible for redemption.

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 When preference shares are redeemed out of profits, the company is required
to create Capital Redemption Reserve Account.
 Capital Redemption Reserve Account may be applied for issuing fully paid
bonus shares.
 Power to alter share capital by a limited company having a share capital is

envisaged under Section 61.
 Companies can issue rights shares to their existing shareholders in

accordance with Section 62.
 Issue of bonus shares is governed by Section 63.
 After following the prescribed legal procedure, a company is permitted to

bring about reduction in its share capital.
 A company is restricted to purchase or give loans for purchase of its shares

except where buy-back is resorted to in accordance with the applicable
provisions.
 Buy-back of shares is prohibited under certain circumstances.
 Debenture Redemption Reserve account is created to ring - fence funds

requirement for redemption of Debentures.
TEST YOUR KNOWLEDGE

1. Sarvodhaya Urban Nidhi Limited has ` 14 Crore and ` 6 Crore as paid-up equity
and preference share capital respectively. Balance in retain earnings account is
` 2.4 Crore. Equity share capital having face value of ` 10 each, while preference
share has face value of 100 each. Mr. Surya and Mr. Chandan own 11,20,000
and 5,60,000 shares respectively. In context of resolution placed before the
company which directly affect the rights attached to his preference shares, the
voting right of Mr. Surya and Mr. Chandan in percentage term shall be:
(a) 8% and 4% respectively
(b) 5.6% and 2.8% respectively

(c) 5% and 2.8% respectively
(d) 5% and 2.5% respectively

2. In a litigation regarding title of shares, a share certificate issued in physical form
by Modern Furniture Limited, an unlisted private company that doesn’t have a
common seal submitted as evidence of the title. The same shall be clear and
convincing evidence of title, if signed by;
i. two directors
ii. two directors, out of which one shall be managing director
iii. two directors and the Company Secretary, wherever the company has
appointed a Company Secretary
iv. a director and the Company Secretary, wherever the company has appointed
a Company Secretary
(a) By i or iii only
(b) By i or iv only
(c) By ii or iii only
(d) By ii or iv only
3. Mr. Bahu has received a notice from Mahishmati Private Limited on 2 nd March,
2023 intimating that Mr. Bali has submitted a transfer deed duly signed by him for
transfer of 1000 partly paid shares (` 8 paid-up out of Face Value of ` 10 per share)
in his (Mr. Bahu) name. Mr. Bahu as transferee must raise his objection to the
proposed transfer of partly paid shares latest by
(a) 9th March, 2023
(b) 16th March, 2023
(c) 17th March, 2023
(d) 31st March, 2023
4. Section 67 of the Companies Act, 2013 impose a restriction on public company
from giving any financial assistance whether directly or indirectly and whether by
means of a loan, guarantee, the provision of security or otherwise for the purpose
of, or in connection with, a purchase or subscription made or to be made, by any
person of or for any shares in the company or in its holding company. Star
Engineering Limited which is not covered by any of exemptions specified under

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said section, contravene the restrictive provisions stated above. Every officer of the
company who is in default shall be liable for;
(a) Fine which shall not be less than one lakh rupees but may extend to twenty-
five lakh rupees
(b) Fine which shall not be less than one lakh rupees but may extend to twenty-
five lakh rupees or Imprisonment for a term which may extend to three years
or both
(c) Fine which may extend to twenty-five lakh rupees or Imprisonment for a
term which may extend to three years or both
(d) Fine which shall not be less than one lakh rupees but may extend to twenty-
five lakh rupees and Imprisonment for a term which may extend to three
years
5. Modern Furniture an unlisted company receive a request for issue of duplicate
share certificate. Complete documents in this regards submitted with the company
on 30th December 2022. Modern furniture shall issue the duplicate share
certificates by:
(a) 29th January 2023
(b) 13th February 2023

(c) 28th February 2023
(d) 29th March 2023
1. VRS Company Ltd. is holding 45% of total equity shares in SV Company Ltd.
The Board of Directors of SV Company Ltd. (incorporated on January 1, 201 9)
decided to raise the share capital by issuing further equity shares. The Board of
Directors resolved not to offer any shares to VRS Company Ltd., on the ground
that it was already holding a high percentage of the total number of shares
issued by SV Company Ltd. The Articles of Association of SV Company Ltd.
provided that the new shares should first be offered to the existing shareholders
of the company. On March 1, 2019 SV Company Ltd. offered new equity shares
to all the shareholders, except VRS Company Ltd.

Referring to the provisions of the Companies Act, 2013 examine the validity of
the decision of the Board of Directors of SV Company Ltd. of not offering any
further shares to VRS Company Limited.
2. The Directors of Mars Motors India Ltd. desire to alter Capital Clause of the
Memorandum of Association of their company. Advise them about the ways in
which the said clause may be altered under the provisions of the Companies
Act, 2013.
3. Ramesh, a resident of New Delhi, sent a transfer deed duly signed by him as
transferee and his brother Suresh as transferor, for registration of transfer of
shares to Ryan Entertainment Private Limited at its Registered Office in
Mumbai. He did not receive the transferred shares certificates even after the
expiry of four months from the date of dispatch of transfer deed. Is there any
liability of company and officer in default in the said matter?
4. Due to insufficient profits, Silver Robotics Limited is unable to redeem its
existing preference shares amounting to ` 10,00,000 (10,000 preference shares
of ` 100 each) though as per the terms of issue they need to be redeemed within
next two months. It did not, however, default in payment of dividend as and
when it became due. What is the remedy available to the company in respect
of outstanding preference shares as per the Companies Act, 2013?
5. Trisha Data Security Limited was incorporated just a year ago with a paid- up
share capital of ` 200 crore. Within such a small period of about year in
operation, it has earned sizeable profits and has topped the charts for its high
employee-friendly environment. The company wants to issue sweat equity to
its employees. A close friend of the CEO of the company has told him that the
company cannot issue sweat equity shares as minimum 2 years have not
elapsed since the time company commenced its business. The CEO of the
company has approached you to advise about the essential conditions to be
fulfilled before the issue of sweat equity shares especially since their company
is just about a year old.
6. Walnut Foods Limited has an authorized share capital of 2,00,000 equity shares
of ` 100 per share and an amount of ` 2 crore in its Securities Premium Account
as on 31-3-2020. The Board of Directors seeks your advice about the
application of securities premium account for its business purposes. Please give
your advice.

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7. OLAF Limited, a subsidiary of PQR Limited, decides to give a loan of

` 4,00,000 to its Human Resource Manage,r Mr. Surya Nayan, who does not fall
in the category of Key Managerial Personnel and draws a salary of
` 40,000 per month, to buy 500 partly paid-up equity shares of ` 1000 each in
OLAF Limited. Examine the validity of company's decision under the provisions
8. Shilpi Developers India Limited owed to Sunil ` 10,000. On becoming this debt
payable, the company offered Sunil 100 shares of ` 100 each in full settlement
of the debt. The said shares were allotted to Sunil as fully paid-up in lieu of his
debt. Examine the validity of this allotment in the light of the provisions of the
Companies Act, 2013
9. What are the provisions of the Companies Act, 2013 relating to the
appointment of ‘Debenture Trustee’ by a company? Whether the following can
be appointed as ‘Debenture Trustee’:
(i) A shareholder who has no beneficial interest.
(ii) A creditor whom the company owes ` 499 only.
(iii) A person who has given a guarantee for repayment of amount of
debentures issued by the company?
10. Mr. Nilesh has transferred 1000 equity shares of Perfect Vision Private Limited
to his sister, Ms. Mukta. The company did not register the transfer of shares and
also did not send a notice of refusal to Mr. Nilesh or Ms. Mukta within the
prescribed period. Discuss as per the provisions of the Companies Act, 2013,
whether aggrieved party has any right(s) against the company?
11. Shankar Portland Cement Limited is engaged in the manufacture of different
types of cements and has got a good brand value. Over the years, it has built a
good reputation and its Balance Sheet as at March 31, 2020 showed the
following position:
1. Authorized Share Capital (25,00,000 equity shares of ` 10/- each)
` 2,50,00,000
2. Issued, subscribed and paid-up Share Capital (10,00,000 equity shares of
` 10/- each, fully paid-up) ` 1,00,00,000
3. Free Reserves ` 3,00,00,000

The Board of Directors are proposing to declare a bonus issue of 1 share for
every 2 shares held by the existing shareholders. The Board wants to know the
conditions and the manner of issuing bonus shares under the provisions of the
12. State the legal provisions in respect of ‘Declaration of Solvency’, which an
unlisted public company needs to adhere to while taking steps to buy-back its
own shares.
ANSWERS
1. (c) 5% and 2.8% respectively
2. (b) two directors, out which one shall be managing director
3. (c) 16th March, 2023
4. (d) Fine which shall not be less than one lakh rupees but may
extend to twenty-five lakh rupees and Imprisonment for
a term which may extend to three years
5. (d) 29 th March 2023

1. The legal issues involved herein are covered under Section 62 (1) of the
Section 62 (1) (a) of the Companies Act, 2013 provides that if, at any time, a
company having a share capital proposes to increase its subscribed capital by
issue of further shares, such shares should first be offered to the existing
equity shareholders of the company as at the date of the offer, in proportion
to the paid-up capital on those shares. Hence, the company cannot ignore
a section of the existing shareholders and must offer the shares to the existing
equity shareholders in proportion of their holdings.
As per facts of the case, the Articles of SV Company Ltd. provide that the new
shares should first be offered to the existing shareholders. However, the

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company offered new shares to all shareholders excepting VRS Company Ltd.,
which held a major portion of its equity shares. It is to be noted that under
the Companies Act, 2013, SV Company Ltd. did not have any legal
authority to do so.
Therefore, in the given case, decision of the Board of Directors of SV Company

Ltd. not to offer any further equity shares to VRS Company Ltd. on the ground
that VRS Company Ltd. already held a high percentage of shareholding in SV
Company Ltd. is not valid. Such a decision violates the provisions of Section
62 (1) (a) as well as Articles of the issuing company.
2. Alteration of Capital: Under section 61 (1) a limited company having a share
capital may, if authorised by its Articles, alter its Memorandum in its general
meeting to:
(i) increase its authorized share capital by such amount as it thinks
expedient;
(ii) consolidate and divide all or any of its share capital into shares of a
larger amount than its existing shares;
However, no consolidation and division which results in changes in the
voting percentage of shareholders shall take effect unless it is approved
by the Tribunal on an application made in the prescribed manner.
(iii) convert all or any of its paid- up shares into stock and reconvert that
stock into fully paid shares of any denomination.
(iv) sub-divide its shares, or any of them, into shares of smaller amount than
is fixed by the Memorandum;
(v) cancel shares which, at the date of the passing of the resolution in that
behalf, have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the shares so
cancelled.
Further, under section 64 where a company alters its share capital in any of
the above-mentioned ways, the company shall file a notice in the Form No.
SH-7 as per Rule 15 of the Companies (Share Capital and Debentures) Rules,
2014 with the Registrar, along with an altered memorandum within thirty
days of alteration The capital clause of memorandum, if authorised by the
Articles, shall be altered by passing an ordinary resolution as per Section 61

(1) of the Companies Act, 2013.

3. According to Section 56 (4) of the Companies Act, 2013 every company,
unless prohibited by any provision of law or of any order of court, Tribunal or
other authority, shall deliver the certificates of all shares transferred within a
period of one month from the date of receipt by the company of the
instrument of transfer.
Further, as per Section 56 (6), where any default is made in complying with
the provisions of sub-sections (1) to (5), the company and every officer of the
company who is in default shall be liable to a penalty of fifty thousand rupees.
4. According to Section 55(3) of the Companies Act, 2013, where a company is
not in a position to redeem any preference shares or to pay dividend, if any,
on such shares in accordance with the terms of issue (such shares hereinafter
referred to as unredeemed preference shares), it may—
➢ with the consent of the holders of three-fourths in value of such
preference shares, and
➢ with the approval of the Tribunal on a petition made by it in this behalf,
issue further redeemable preference shares equal to the amount due,
including the dividend thereon, in respect of the unredeemed preference
shares, and on the issue of such further redeemable preference shares, the
unredeemed preference shares shall be deemed to have been redeemed.
Provided that the Tribunal shall, while giving approval under this sub-section,
order the redemption forthwith of preference shares held by such persons
who have not consented to the issue of further redeemable preference shares.
In view of the provisions of Section 55 (3), Silver Robotics Limited can initiate
steps for the issue of further redeemable preference shares equal to the
amount due i.e. ` 10,00,000. For this purpose, it shall obtain the consent of
the holders of three-fourths in value of such preference shares and also seek
approval of the Tribunal by making a petition. In case, there are certain
preference shareholders who have not accorded their consent for the
proposal of issuing further redeemable preference shares, the Tribunal may
order the company to redeem forthwith such preference shares. Accordingly,
Silver Robotics Limited must be ready with sufficient funds for the redemption
of preference shares held by those who have not consented.

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On the issue of such further redeemable preference shares by the company,

the unredeemed preference shares shall be deemed to have been redeemed.
5. Sweat equity shares of a class of shares already issued.
According to section 54 of the Companies Act, 2013, a company may issue
sweat equity shares of a class of shares already issued, if the following
conditions are fulfilled, namely—
(i) the issue is authorised by a special resolution passed by the company;
(ii) the resolution specifies the number of shares, the current market price,
consideration, if any, and the class or classes of directors or employees
to whom such equity shares are to be issued;
(iii) where the equity shares of the company are listed on a recognised stock
exchange, the sweat equity shares are issued in accordance with the
regulations made by the Securities and Exchange Board in this behalf
and if they are not so listed, the sweat equity shares are issued in
accordance with such rules as prescribed under Rule 8 of the Companies
(Share and Debentures) Rules, 2014,
The rights, limitations, restrictions and provisions as are for the time being
applicable to equity shares shall be applicable to the sweat equity shares
issued under Section 54 and the holders of such shares shall rank pari passu
with other equity shareholders.
Trisha Data Security Limited can issue Sweat equity shares by following the
conditions as mentioned above. It does not make any difference that the
company is just about a year old, because there is no such age (time since
commencement of business) requirement under Section 54.
6. Amount lying to the credit of Securities Premium Account is required to be
utilised for certain prescribed purposes.
According to section 52 of the Companies Act, 2013, where a company issues

shares at a premium, whether for cash or otherwise, a sum equal to the
aggregate amount of the premium received on those shares shall be
transferred to a "securities premium account" and the provisions of this Act
relating to reduction of share capital of a company shall, except as provided
in this Section, apply as if the securities premium account were the paid-up
share capital of the company.

The securities premium account may be applied by the company—
(a) towards the issue of unissued shares of the company to the members
of the company as fully paid bonus shares;
(b) in writing off the preliminary expenses of the company;
(c) in writing off the expenses of, or the commission paid or discount
allowed on, any issue of shares or debentures of the company;
(d) in providing for the premium payable on the redemption of any
redeemable preference shares or of any debentures of the company; or
(e) for the purchase of its own shares or other securities under section 68.
The securities premium account may be applied by such class of companies, as
may be prescribed and whose financial statement comply with the accounting
standards prescribed for such class of companies under section 133,—
(a) in paying up unissued equity shares of the company to be issued to
members of the company as fully paid bonus shares; or
(b) in writing off the expenses of or the commission paid or discount
allowed on any issue of equity shares of the company; or
(c) for the purchase of its own shares or other securities under section 68.
Keeping the above points in view Walnut Foods Limited should proceed to
utilise the amount of Securities Premium Account.
7. Restrictions on purchase by company or giving of loans by it for
purchase of its share: As per section 67 (3) of the Companies Act, 2013 a
company is allowed to give a loan to its employees subject to the following
limitations:
(a) The employee must not be a director or Key Managerial Personnel;
(b) The amount of such loan shall not exceed an amount equal to six
months’ salary of the employee.
(c) The loan must be extended for subscribing fully paid-up shares.
In the given instance, Human Resource Manager Mr. Surya Nayan is not a Key
Managerial Personnel of the OLAF Limited. Further, he is drawing a salary of
` 40,000 per month and wants to avail loan for purchasing 500 partly paid-
up equity shares of ` 1000 each of OLAF Limited in which he is employed.

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Keeping the above facts and legal provisions in view, the decision of OLAF
Limited in granting a loan of ` 4,00,000 for purchase of its partly paid-up
shares to Human Resource Manager is invalid due to the following reasons:
i. The amount of loan is more than 6 months’ salary of Mr. Surya Nayan,
the HR Manager. It should have been restricted to ` 2,40,000 only.
ii. The loan to be given by OLAF Limited to its HR Manager Mr. Surya
Nayan is meant for purchase of partly paid shares.
8. Under Section 62 (1) (c) of the Companies Act, 2013 where at any time, a
company having a share capital proposes to increase its subscribed capital by
the issue of further shares, either for cash or for a consideration other than
cash, such shares may be offered to any persons, if it is authorised by a special
resolution and if the price of such shares is determined by a empowered to
allot the shares to Sunil in settlement of its debt to him. This valuation report
of a registered valuer, subject to the compliance with the applicable
provisions of Chapter III and any other conditions as may be prescribed.
In the present case, Shilpi Developers India Limited’s allotment, to be
classified as shares issued for consideration other than cash, must be
approved by the members by a special resolution. Further, the valuation
of the shares must be done by a registered valuer, subject to the compliance
with the applicable provisions of Chapter III and any other conditions as may
be prescribed.
9. Appointment of Debenture Trustee: Under section 71 (5) of the Companies
Act, 2013, no company shall issue a prospectus or make an offer or invitation
to the public or to its members exceeding five hundred for the subscription
of its debentures, unless the company has, before such issue or offer,
appointed one or more debenture trustees and the conditions governing the
appointment of such trustees shall be such as may be prescribed.
Rule 18 (2) of the Companies (Share Capital and Debentures) Rules, 2014,
framed under the Companies Act for the issue of secured debentures provide
that before the appointment of debenture trustee or trustees, a written
consent shall be obtained from such debenture trustee or trustees proposed
to be appointed and a statement to that effect shall appear in the letter of
offer issued for inviting the subscription of the debentures.

Further according to the rules, no person shall be appointed as a debenture

trustee, if he-
(i) beneficially holds shares in the company;
(ii) is a promoter, director or key managerial personnel or any other officer
or an employee of the company or its holding, subsidiary or associate
company;
(iii) is beneficially entitled to moneys which are to be paid by the company
otherwise than as remuneration payable to the debenture trustee;
(iv) is indebted to the company, or its subsidiary or its holding or associate
(v) has furnished any guarantee in respect of the principal debts secured
by the debentures or interest thereon;
(vi) Has any pecuniary relationship with the company amounting to two
percent. or more of its gross turnover or total income or fifty lakh
rupees or such higher amount as may be prescribed, whichever is lower,
during the two immediately preceding financial years or during the
current financial year;
(vii) is a relative of any promoter or any person who is in the employment
of the company as a director or key managerial personnel;
Thus, based on the above provisions answers to the given questions are as
follows:
(i) A shareholder who has no beneficial interest, can be appointed as a
debenture trustee.
(ii) A creditor whom company owes ` 499 cannot be appointed as a
debenture trustee. The amount owed is immaterial.
(iii) A person who has given guarantee for repayment of principal and
interest thereon in respect of debentures also cannot be appointed as
a debenture trustee.
10. The problem given in the question is governed by Section 58 of the
Companies Act, 2013 dealing with the refusal to register transfer and appeal
against such refusal.

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In the present case, the company has committed the wrongful act of not
sending the notice of refusal to register the transfer of shares.
Under section 58 (1), if a private company limited by shares refuses to register
the transfer of, or the transmission by operation of law of the right to any
securities or interest of a member in the company, then the company shall send
notice of refusal to the transferor and the transferee or to the person giving
intimation of such transmission, within a period of thirty days from the date on
which the instrument of transfer, or the intimation of such transmission, was
delivered to the company.
According to Section 58 (3), the transferee may appeal to the Tribunal against
the refusal within a period of thirty days from the date of receipt of the notice or
in case no notice has been sent by the company, within a period of sixty days
from the date on which the instrument of transfer or the intimation of
transmission, was delivered to the company.
In this case, as the company has not sent even a notice of refusal, Ms.
Mukta being transferee can file an appeal before the Tribunal within a period
of sixty days from the date on which the instrument of transfer was
delivered to the company.
11. According to Section 63 of the Companies Act, 2013, a company may issue
fully paid-up bonus shares to its members, in any manner whatsoever, out of
-
(i) its free reserves;
(ii) the securities premium account; or
(iii) the capital redemption reserve account.
Provided that no issue of bonus shares shall be made by capitalising reserves
created by the revaluation of assets.
Conditions for issue of Bonus Shares: No company shall capitalise its profits
or reserves for the purpose of issuing fully paid-up bonus shares, unless—
(i) it is authorised by its Articles;

(ii) it has, on the recommendation of the Board, been authorised in the
general meeting of the company;
(iii) it has not defaulted in payment of interest or principal in respect of

fixed deposits or debt securities issued by it;
(iv) it has not defaulted in respect of payment of statutory dues of the

employees, such as, contribution to provident fund, gratuity and bonus;
(v) the partly paid-up shares, if any, outstanding on the date of allotment,
are made fully paid-up;
(vi) it complies with such conditions as are prescribed by Rule 14 of the
Companies (Share Capital and debentures) Rules, 2014 which states that
the company which has once announced the decision of its Board
recommending a bonus issue, shall not subsequently withdraw the
same.
Further, the company has to ensure that the bonus shares shall not be issued
in lieu of dividend.
For the issue of bonus shares Shankar Portland Cement Limited will require
reserves of ` 50,00,000 (i.e. half of ` 1,00,00,000 being the paid-up share
capital), which is readily available with the company. Hence, after following
the above conditions relating to the issue of bonus shares, the company may
proceed for a bonus issue of 1 share for every 2 shares held by the existing
shareholders.
12. According to Section 68 (6), where an unlisted public company has passed a
special resolution under Section 68 (2) (b) or the Board has passed a
resolution under item (ii) of the proviso to Section 68 (2) (b) to buy-back its
own shares, it shall, before making such buy-back, file with the Registrar a
‘Declaration of Solvency’ in Form SH-9.
The declaration shall be verified by an affidavit to the effect that the Board
has made a full inquiry into the affairs of the company as a result of which
they have formed an opinion that it is capable of meeting its liabilities and
will not be rendered insolvent within a period of one year from the date of
declaration of solvency adopted by the Board. The declaration shall be signed
by at least two directors of the company, one of whom shall be the managing
director, if any.

CHAPTER a
5
ACCEPTANCE OF
DEPOSITS BY
COMPANIES
LEARNING OUTCOMES

 Explain the meaning of the term ‘Deposit’.
 Comprehend the requirements for and restrictions on
acceptance of deposits from members and public.
 Grasp the concept of ‘eligible companies’ which can accept
deposits from public in addition to their members.
 Identify the punishment for contravention of the provisions
relating to acceptance of deposits by companies.


CHAPTER OVERVIEW
Acceptance of Deposits
Acceptance of
Prohibition on Repayment of Punishment for
deposits from
acceptance deposits contravention
public
[Sec. 73] [Sec. 74] [Sec. 76A]
[Sec. 76]
1. INTRODUCTION
Chapter V Consists of sections 73 to 76A as well as the Companies
(Acceptance of Deposits) Rules, 2014.
Acceptance of deposits from the members as well as public at large is an

important source of finance for the corporate sector. It is, therefore, necessary to
control the companies which invite deposits in order to safeguard the general and
wider interest of all those persons who offer deposits out of their precious savings.
The statutory provisions as contained in sections 73 to 76A of the Companies Act,
2013 (hereinafter referred to as ‘the Act’) and the Companies (Acceptance of
Deposits) Rules, 2014 (hereinafter referred to as ‘the Rules’) govern the acceptance
of deposits and also renewal thereof.
2. CERTAIN IMPORTANT TERMS EXPLAINED

A. DEPOSIT
Definition: According to section 2 (31) of the Act, the term

‘deposit’ includes any receipt of money by way of deposit or loan
or in any other form, by a company, but does not include such
categories of amount as may be prescribed in consultation with the Reserve bank
of India.

ACCEPTANCE OF DEPOSITS BY COMPANIES 5.3
5.3 a
Features:
(i) The above definition of ‘deposit’ is inclusive one.
(ii) It includes any money received by way of:

a) deposit; or
b) loan; or
c) in any other form.
(iii) Repayment of ‘deposit’ is time-bound.
(iv) It can be secured or unsecured.
(v) It does not include prescribed categories of

amounts (as stated in the ‘Acceptance of Deposits’
Rules).
(vi) It may be accepted in joint names not exceeding

three persons.
(vii) A depositor may nominate any person at any

time.
(viii) Every deposit accepted by the company shall be

repaid with interest.
(ix) Premature repayment of a deposit can be made by

the company.
(x) A private company can accept deposits from its

members only.
(xi) A public company can accept deposits from its

members and also from the public if it fulfills certain
parameters.

Types of Deposits
Unsecured
Secured deposits
deposits
(fully secured by
(partial or no
creating charge on
security made
tangible assets)
available)
B. AMOUNTS NOT CONSIDERED AS DEPOSIT

Following categories of amounts are not considered as deposit [Rule 2 (1) (c)]:
(i) Any amount received from:
• the Central Government; or
• a state Government; or
• any other source whose repayment is guaranteed by the Central
Government or a State Government; or
• local authority; or
• a statutory authority constituted under an Act of Parliament or a State
Legislature;
(ii) Any amount received from:
• foreign Governments,
• foreign or international banks,
• multilateral financial institutions (including, but not limited to,
International Finance Corporation, Asian Development Bank,
Commonwealth Development Corporation, and International Bank for
Industrial and Financial Reconstruction),
• foreign Governments owned development financial institutions,
• foreign export credit agencies,
• foreign collaborators,
• foreign bodies corporate and foreign citizens,

5.5 a
• foreign authorities or persons resident outside India;

The receipt of funds shall be subject to the provisions of Foreign Exchange
Management Act, 1999 and rules and regulations made thereunder;
(iii) Any amount received as a loan or facility from:

• any banking company, or
• State Bank of India or its subsidiary banks, or
• a notified banking institution, or
• a corresponding new bank (as defined in the Banking Companies
(Acquisition and Transfer of Undertakings) Acts of 1970 and 1980), or
• any co-operative bank;
(iv) Any amount received as a loan or financial assistance from:
• Public Financial Institutions, or
1
• any regional financial institutions, or

• Insurance companies, or
• Scheduled banks (as defined in Reserve bank of India Act, 1934;
(v) Any amount received against issue of commercial paper or any other
instruments issued in accordance with the guidelines or notification issued
by the Reserve Bank of India;
(vi) Any amount received by a company from any other company (Mainly known
as Inter Company Deposit (ICD));
(vii) Any amount received and held towards subscription to any securities
(including share application money or advance towards allotment of
securities, pending allotment), so long as such amount is appropriated only
against the amount due on allotment of the securities applied for;
Notes:
(a) It is clarified by way of Explanation that if the securities for which
application money or advance for such securities was received cannot
1
Such PFI’s as notified by the Central Government in this behalf in consultation with the
Reserve Bank of India.

be allotted within 60 days from the date of receipt of the application

money or advance for such securities and such application money or
advance is not refunded to the subscribers within 15 days from the
date of completion of 60 days, such amount shall be treated as a
deposit under these rules.
(b) Further, it is clarified that any adjustment of the amount for any other
purpose shall not be treated as refund.
(viii) Any amount received from a person who, at the time of the receipt of the
amount, was a director of the company or a relative of the director of the
private company;
However, the director of the company or relative of the director of the private
company, as the case may be, from whom money is received, is required to
furnish to the company at the time of giving the money, a declaration in writing
to the effect that the amount is not being given out of funds acquired by him
by borrowing or accepting loans or deposits from others and the company shall
disclose the details of money so accepted in the Board's report;
(ix) Any amount raised by the issue of:
• bonds or debentures secured by a first charge or a charge ranking pari
passu with the first charge on any assets referred to in Schedule III 2 of the
Companies Act, 2013 excluding intangible assets of the company, or
• bonds or debentures compulsorily convertible into shares of the
company within 10 years;
However, if such bonds or debentures are secured by the charge of any
assets referred to in Schedule III of the Companies Act, 2013, excluding
intangible assets, the amount of such bonds or debentures shall not exceed
the market value of such assets as assessed by a registered valuer.
(ixa) Any amount raised by issue of non-convertible debenture not constituting a
charge on the assets of the company and listed on a recognised stock
exchange as per applicable regulations made by Securities and Exchange
Board of India;
2
Schedule III contains format of Balance Sheet.

5.7 a
Example 1: Soorya Ltd. has raised ` 20,00,000 through issue of non-

convertible debentures (20,000 NCDs of ` 100 each) not constituting a
charge on the assets of the company. The NCDs are listed on a recognised
stock exchange as per applicable regulations made by Securities and
Exchange Board of India. The said amount will not be considered as deposit
in terms of the rule stated above [Sub-clause (ixa)]
(x) any amount received from an employee of the company not exceeding his
annual salary under a contract of employment with the company in the
nature of non-interest bearing security deposit;
Example 2: Ratnakar was appointed as Supervisor by Siddhi Transporters

and Logistics Limited on an annual salary of ` 6,00,000. He was required to
deposit a sum of ` 6,50,000 under the contract of employment with the
company as security deposit on which no interest was payable to him.
In the above case, the amount so received by Siddhi Transporters and
Logistics Limited from Ratnakar under the contract of employment with the
company being non-interest bearing security deposit, will be considered as
deposit in terms of sub-clause (x), since the amount is more than his annual
salary. Had the amount of non-interest bearing security deposit received by
the company under the contract of employment been limited to ` 6,00,000
or less, it would not have been considered as deposit.
(xi) Any non-interest bearing amount received and held in trust;
(xii) Any amount received in the course of, or for the purposes of, the business of
the company–
(a) as an advance for the supply of goods or provision of services
accounted for in any manner whatsoever provided that such advance is
appropriated against supply of goods or provision of services within
three hundred and sixty-five days from the date of acceptance of
such advance:
However, in case of any advance which is subject matter of any legal
proceedings before any court of law, the said time limit of three
hundred and sixty-five days shall not apply.
(b) as advance, accounted for in any manner whatsoever, received in
connection with consideration for an immovable property under an

agreement or arrangement, provided that such advance is

adjusted against such property in accordance with the terms of
agreement or arrangement;
(c) as security deposit for the performance of the contract for supply of
goods or provision of services;
(d) as advance received under long term projects for supply of capital
goods except those covered under item (b) above;
(e) as an advance towards consideration for providing future services in
the form of a warranty or maintenance contract as per written
agreement or arrangement, if the period for providing such services
does not exceed the period prevalent as per common business practice
or five years, from the date of acceptance of such service whichever is
less;
(f) as an advance received and as allowed by any sectoral regulator or in
accordance with directions of Central or State Government;
(g) as an advance for subscription towards publication, whether in print or
in electronic to be adjusted against receipt of such publications;
However, it is clarified that if the amount received under items (a), (b) and (d)
above becomes refundable (with or without interest) due to the reasons that
the company accepting the money does not have necessary permission or
approval, wherever required, to deal in the goods or properties or services
for which the money is taken, then the amount received shall be deemed to
be a deposit under these rules.
Further, by way of Explanation it is clarified that for the purposes of this sub-
clause the amount shall be deemed to be deposits on the expiry of fifteen
days from the date they become due for refund.
(xiii) 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 subject to the fulfillment of following conditions:
(a) the loan is brought because of the stipulation imposed by the lending
institutions on the promoters to contribute such finance;

5.9 a
(b) the loan is provided by the promoters themselves or by their relatives

or by both; and
(c) such exemption shall be available only till the loans of financial
institution or bank are repaid and not thereafter.
(xiv) any amount accepted by a Nidhi company in accordance with the rules made
under section 406 of the Act;
(xv) any amount received by way of subscription in respect of a chit under the
Chit Fund Act, 1982;
(xvi) any amount received by the company under any collective investment
scheme in compliance with regulations framed by the Securities and
Exchange Board of India;
(xvii) an amount of twenty-five lakh rupees or more received by a start-up
company, by way of a convertible note (convertible into equity shares or
repayable within a period not exceeding ten years from the date of issue) in
a single tranche, from a person;
By way of Explanation it is clarified that:
1. ‘‘Start-up company” means a private company incorporated under the
Companies Act, 2013 or Companies Act, 1956 and recognised as such
in accordance with Notification Number G.S.R. 127 (E), dated 19-02-
2019 issued by the Department for Promotion of Industry and Internal
Trade ;
2. ‘‘Convertible note” means an instrument evidencing receipt of money
initially as a debt, which is repayable at the option of the holder, or
which is convertible into such number of equity shares of the start-up
company upon occurrence of specified events and as per the other
terms and conditions agreed to and indicated in the instrument.
Example 3: Greedwood limited (‘the company) which is register as start-up
company register under Companies Act, 2013 has received an amount of
` 20 lacs and ` 10 lakh on different date by way of a convertible note.
Though the company has received an amount of twenty-five lakh rupees or
more, the said amount will be considered as deposit since the aggregate
amount has not received in single tranche in terms of the rule stated above
Sub-clause (xvii)].

(xviii) any amount received by a company from Alternate Investment Funds,

Domestic Venture Capital Funds, Infrastructure Investment Trusts, Real Estate
Investment Trusts 3 and Mutual Funds registered with the Securities and
Exchange Board of India in accordance with regulations made by it.
Note: Clarification regarding amounts received by private companies from their

members, directors or their relatives before 1st April, 2014 – whether to be
considered as deposits or not under the Companies Act, 2013 (General Circular No.
5/2015, dated 30-03-2015)
It is clarified that such amounts received by private companies prior to 1st April,
2014 shall not be treated as ‘deposits’ subject to the condition that relevant
private company shall disclose in the notes to its financial statement the figure of
such amounts and the accounting head in which such amounts have been shown.
However, any renewal or acceptance of fresh deposits on or after 1st April, 2014
shall be in accordance with the Companies Act, 2013 and the rules made
thereunder.
C. DEPOSITOR
Definition:
As per Rule 2 (1) (d) of the Companies (Acceptance of Deposits) Rules, 2014, the
term ‘Depositor’ means:
(i) any member of the company who has made a deposit with
the company in accordance with the provisions of sub-
section (2) of section 73 of the Act, or
(ii) any person who has made a deposit with a public company
in accordance with the provisions of section 76 of the Act.
In other words:
• any member of a private or public company who has deposited money with
his company is a ‘depositor’.
3
The words ‘Real Estate Investment Trusts’ have been inserted vide the Companies
(Acceptance of Deposits) Amendment Rules, 2019 w.e.f. 22-01-2019.

5.11 a
• any person (even if not a member of the company) who has deposited
money with a public company is also a ‘depositor’.
D. ELIGIBLE COMPANY
Definition:
As per Rule 2 (1) (e) the term “eligible company” means a public company as
referred to in section 76 (1), having a net worth of not less than one hundred crore
rupees or a turnover of not less than five hundred crore rupees and which has
obtained the prior consent in general meeting by means of a special resolution
and also filed the said resolution with the Registrar of Companies before making
any invitation to the public for acceptance of deposits:
However, an eligible company, which is accepting deposits within the limits
specified under section 180 (1) (c), may accept deposits by means of an ordinary
resolution.
A public company is ‘eligible’ to accept deposits from the public at large only if it
meets the above-mentioned criteria.
Accordingly,
(a) It should a public company.
(b) It should have net worth of minimum ` 100 Crore or a turnover of

minimum ` 500 Crore.
(c) It has obtained the prior consent by means of a special resolution

passed in the general meeting.
(d) The special resolution has been filed with the Registrar of Companies .
(e) An ordinary resolution is sufficient if an eligible company is accepting deposits

within the limits specified under section 180(1)(c).

3. PROHIBITIVE PROVISIONS AND EXEMPTED

COMPANIES
A. Prohibitive Provisions
According to section 73 (1) of the Act, no company can accept or renew deposits
from public unless it follows the manner provided under Chapter V of the Act for
acceptance or renewal of deposits from public. Manner of acceptance of deposits
from public is explained later in the Chapter.
B. Exempted Companies
According to Section 73 (1), on and after the commencement of this Act, no
company shall invite, accept or renew deposits under this Act from the public
except in a manner provided under this Chapter:
Provided that nothing in this sub-section shall apply to a banking company and
non-banking financial company as defined in the Reserve Bank of India Act, 1934
and to such other company as the Central Government may, after consultation
with the Reserve Bank of India, specify in this behalf.
Besides above exempted companies, Rule 1 (3) also states that ‘Deposit Rules’ shall
not apply to any Housing Finance Company registered with National Housing Bank
established under the National Housing Bank Act, 1987.
In nutshell, following are the exempted companies to which ‘deposit provisions’
are not applicable:
(i) any banking company;
(ii) any Non-banking Financial Company (NBFC);
(iii) any Housing Finance Company (HFC); and
(iv) such other company as may be notified by the Central Government.
This brings out the fact that ‘deposit provisions’ as contained in the Companies
Act, 2013 and ‘Deposit Rules’ have been enacted to regulate acceptance of
deposits by non-banking non-financial companies (i.e. manufacturing
companies, trading companies, etc.) only.

5.13 a
4. PROVISIONS REGARDING ACCEPTANCE OF

DEPOSITS FROM MEMBERS
Any company may accept or renew deposits from its members by following the
provisions as set out below:
(1) Passing of a Resolution: A company is required to pass a resolution in
general meeting for acceptance of deposits from its members [Section 73
(2)].
(2) Issuance of a Circular containing Statement: The company is required to
issue a circular to its members including therein a statement showing the
financial position of the company, the credit rating obtained, the total
number of depositors and the amount due towards deposits in respect of
any previous deposits accepted by the company and such other particulars in
the prescribed form and manner. [Section 73 (2) (a)]
According to Rule 4, the company shall issue such circular to all its members
by registered post with acknowledgement due or speed post or by electronic
mode in Form DPT-1.
Further, the circular may be published in English language in an English
newspaper and in vernacular language in a vernacular newspaper having wide
circulation in the State in which the registered office of the company is situated.
In addition, a certificate of the statutory auditor of the company shall be
attached in Form DPT-1, stating that the company has not committed
default in the repayment of deposits or in the payment of interest on such
deposits accepted either before or after payment of interest on such
deposits accepted either before or after the commencement of the Act.
In case a company had committed a default in the repayment of deposits
accepted either before or after the commencement of the Act or in the
payment of interest on such deposits, a certificate of the statutory auditor of
the company shall be attached in Form DPT-1, stating that the company had
made good the default and a period of five years has lapsed since the date
of making good the default as the case may be.
Such Circular shall be issued on the authority and in the name of Board of
Directors of the company.

The Circular shall remain valid till the earliest of the following dates:
(a) up to six months from the closure of the financial year in which it is
issued; or
(b) the date on which the financial statements are laid before the company
at the Annual General Meeting (AGM), or in case no AGM has been
held, the latest day on which the AGM should have been held as per
the relevant statutory provisions.
A fresh circular shall be issued, in each succeeding financial year, for inviting
deposits during that financial year.
Example 4: Ray Pharmaceuticals Limited issued a Circular inviting ‘deposits’
from its members on 14-02-2022. Its Annual General Meeting (AGM) was
held on 07-09-2022. Since, six months from the closure of FY 2021-22 end on
30-09-2022, the Circular remains valid till 07-09-2022 only. After this date, a
fresh Circular shall be issued if the company wants to invite further deposits
from its members.
(3) Filing of Circular: The company is required to file a copy of the circular
containing the statement with the Registrar within 30 days before the date
of issue of the circular. [Section 73 (2) (b)]
(4) Requirement of Deposit Repayment Reserve Account: The company is

required to deposit, on or before 30th of April each year, at least 20% of the
amount of its deposits maturing during the following financial year and
kept in a scheduled bank in a separate bank account to be called deposit
repayment reserve account. [Section 73 (2) (c)]
According to Rule 13 (Maintenance of Liquid Assets and Creation of Deposit
Repayment Reserve Account), every company referred to in sub-section (2)
of section 73 and every eligible company shall on or before the 30 th day of
April of each year deposit the sum as specified in clause (c) of the said sub-
section with any scheduled bank and the amount so deposited shall not be
utilised for any purpose other than for the repayment of deposits:
Provided that the amount remaining deposited shall not at any time fall
below twenty per cent of the amount of deposits maturing during the
financial year.

5.15 a
4
(5) Certification as to No default in Repayment: The company needs to certify
that it has not committed any default in the repayment of deposits accepted
either before or after the commencement of this Act or payment of interest
on such deposits.
In case a default had occurred, the company made good the default and a
period of five years had lapsed since the date of making good the default.
[Section 73 (2) (e)]
Exemption to certain Private Companies 5:

Clauses (a) to (e) of sub-section (2) of section 73 with respect to issue of
circular, filing the copy of such circular with the Registrar, depositing of
certain amount and certification as to no default committed, shall not apply
to a private company:
(A) which accepts from its members monies not exceeding one
hundred per cent of aggregate of the paid-up share capital,
free reserves and securities premium account; or
(B) which is a start-up, for five years from the date of its
incorporation; or
(C) which fulfils all of the following conditions, namely:
(a) which is not an associate or a subsidiary company of any
other company;
(b) if the borrowings of such a company from banks or
financial institutions or any body corporate is less than
twice of its paid-up share capital or fifty crore rupees,
whichever is lower; and
(c) such a company has not defaulted in the repayment of
such borrowings subsisting at the time of accepting
deposits under this section.
4
Clause (d) relating to ‘deposit insurance’ was omitted vide the Companies (Amendment) Act,
2017 w.e.f. 15th August, 2018.
5
In terms of Notification No. GSR 464 (E), dated 05-06-2015 as amended from time to
time. Further, in terms of Notification No. GSR 8(E), dated 04 -01-2017, clauses (a) to (e) of
section 73 (2) shall not apply to a Specified IFSC public company which accepts from its
members, monies not exceeding 100% of aggregate of the paid -up share capital and free
reserves, and such company shall file the details of monies so accepted with the Registrar
in such manner as may be specified (i.e. in Form DPT-3).

However, such a company [as referred to in clauses (A), (B) or (C)] shall file
the details of monies accepted to the Registrar in the specified manner (i.e.
in Form DPT-3).
(6) Provision of Security: The company may provide security, if any, for the due
repayment of the amount of deposit or the interest thereon. Further, if
security is provided, the company shall take steps for the creation of charge
on the property or assets of the company.
It may be noted that in case a company does not secure the deposits or
secures such deposits partially, then, the deposits shall be termed as
‘unsecured deposits’. Accordingly, it shall be so quoted in every circular,
form, advertisement or in any document related to invitation or acceptance
of deposits. [Section 73 (2) (f)]
(7) Repayment of deposit: Every deposit accepted by a company shall be
repaid with interest in accordance with the terms and conditions of the
agreement. [Section 73 (3)]
(8) Application to National Company Law Tribunal (NCLT) if the Company
fails to repay: In case a company fails to repay the deposit or part thereof or
any interest thereon, the depositor concerned may apply to the NCLT for an
order directing the company to pay the sum due or for any loss or damage
incurred by him as a result of such non-payment and for such other orders
as the NCLT may deem fit. [Section 73 (4)]
(9) Utilising the Amount of Deposit Repayment Reserve Account: The
Deposit Repayment Reserve Account shall not be used by the company for
any purpose other than repayment of deposits. [Section 73 (5)]
Rule 13 also states that the amount so deposited in the Account shall not be
used by the company for any purpose other than repayment of deposits.
(10) Tenure for which Deposits can be Accepted 6: A company is not permitted
to accept or renew deposits (whether secured or unsecured) which is
repayable on demand or in less than six months. Further, the maximum
period of acceptance of deposit cannot exceed thirty-six months.
Example 5: Arpit, a member of Swapnil Traders Private Limited deposited
₹1,00,000 with his company on 1st April, 2022. The earliest repayment date in
6
As per Rule 3 (1).

5.17 a
this case shall be 30 th September, 2022 and the latest repayment date shall
be 31 st March, 2025. Thus, the tenure will range between six months and
thirty-six months, as per the policy of Swapnil Traders Private Limited.
Exception to the rule of tenure of six months: For the purpose of meeting
any of its short-term requirements of funds, a company may accept or renew
deposits for repayment earlier than six months subject to the condition that:
(i) such deposits shall not exceed ten per cent of the aggregate of
the paid-up share capital, free reserves and securities premium
account of the company; and
(ii) such deposits are repayable only on or after three months from the
date of such deposits or renewal.
Example 6: Continuing the example of Swapnil Traders Private Limited, it is
assumed that aggregate of its paid-up share capital, free reserves and
securities premium account is ` 2,00,00,000. In order to meet its short-term
requirement of funds, it can raise deposits maximum up to ` 20,00,000
(being 10% of ` 2,00,00,000) whose repayment tenure can be less than six
months; but such tenure cannot be less than three months.
Therefore, Swapnil Traders Private Limited must ensure that the short-term
deposits so accepted are repaid only on or after three months from the date
of such deposits.
(11) Maximum Amount of Deposits from Members 7: A company is permitted
to accept or renew any deposit from its members including other such
deposits outstanding as on the date of acceptance or renewal maximum up
to 35% of the aggregate of its paid-up share capital, free reserves and
securities premium account.
However, as an exception, a Specified IFSC Public company 8 and a private
company may accept from its members monies not exceeding 100% of
aggregate of the paid-up share capital, free reserves and securities premium
7
As per Rule 3 (3).
8
A Specified IFSC Public company means an unlisted public company which is licensed to
operate by the Reserve Bank of India or the Securities and Exchange Board of India or the
Insurance Regulatory and Development Authority of India from the International Financial
Services Centre located in an approved multi services Special Economic Zone set-up under the
Special Economic Zones Act 2005 read with the Special Economic Zones Rules, 2006.

account. Further, such company shall file the details of monies so accepted
with the Registrar in Form DPT-3.
In addition, the maximum limit in respect of deposits to be accepted from
members shall not apply to the following classes of private companies:
(i) a private company which is a start-up, for ten years from the date of its
incorporation;
(ii) a private company which fulfils all of the following conditions, namely:
(a) which is not an associate or a subsidiary company of any other
company;
(b) the borrowings of such a company from banks or financial
institutions or any body-corporate is less than twice of its paid-
up share capital or fifty crore rupees, whichever is less; and
(c) such a company has not defaulted in the repayment of such
borrowings subsisting at the time of accepting deposits under
section 73:
Note: It may be noted that all the companies accepting deposits shall
file the details of monies so accepted with the Registrar in Form DPT-3.
(12) Appointment of Trustee for Depositors: As regards appointment of

trustee, refer provisions given under ‘Acceptance of Deposits from Public ’
because same provisions are applicable.
(13) Trustee to call Meeting of Depositors 9: The trustee for depositors shall call
a meeting of all the depositors in the following cases:
(a) on receipt of a requisition in writing signed by at least one-tenth of the
depositors in value for the time being outstanding;
(b) on the happening of any event, which constitutes a default or which, in
the opinion of the trustee for depositors, affects the interest of depositors.
(14) Ceiling on Rate of Interest and Brokerage Payable on Deposits 10: A
company is permitted to invite or accept or renew any deposit at any rate of
interest or pay any amount of brokerage but in no case, it shall exceed the
9
As per Rule 9.
10
As per Rule 3 (6).

5.19 a
maximum rate of interest or brokerage prescribed by the Reserve Bank of

India in case of non-banking financial companies (NBFCs) for acceptance of
deposits.
Further, no brokerage shall be paid to any person except the person who is
authorised in writing by the company to solicit deposits on its behalf and
through whom deposits are actually procured. Payment of brokerage to any
other person for procuring deposits shall be deemed to be in violation of
‘deposit rules’.
(15) Filling of Application Form for making Deposits11: A company shall accept
or renew any deposit, whether secured or unsecured, only when an
application, as specified by the company, is submitted by the intending
depositor for the acceptance of deposit.
The application shall contain a declaration made by the intending depositor
to the effect that the deposit is not being made out of any money borrowed
by him from any other person.
(16) Deposits in Joint Names 12: In case the depositors so desire, deposits may
be accepted by the company in joint names not exceeding three. A joint
deposit may be accepted with or without any of the clauses, namely,
“Jointly”, “Either or Survivor”, “First named or Survivor”, “Anyone or Survivor”.
These clauses operate on maturity of deposits.
Example 7: A, B and C have jointly deposited ` 3,00,000 in a company.
• In case of ‘Jointly’ clause:
the repayment of deposit on maturity shall be made to all the three
together i.e. A, B and C or the survivors.
• In case of ‘Either or Survivor’ clause:
the repayment of deposit on maturity shall be made to either of the
three i.e. either A or B or C or the survivor.
• In case of ‘First named or Survivor’ clause:
the repayment of deposit on maturity shall be made to the first named
person i.e. A if he is the first named person or the survivor.
11
As per Rule 10.
12
As per Rule 3 (2).

• In case of ‘Anyone or Survivor’ clause:

the repayment of deposit on maturity shall be as in the case of ‘Either
or Survivor’.
(17) Nomination13: Every depositor may nominate any person at any time. The
nominee shall be the person to whom his deposits shall vest in the event of
his death.
(18) Deposit Receipt 14: Within a period of twenty-one days from the date of
receipt of money or realization of cheque or date of renewal, the company is
required to furnish a deposit receipt to the depositor or his agent. The
receipt shall be signed by an officer duly authorised by the Board and state
the date of deposit, the name and address of the depositor, the amount of
deposit, the rate of interest and the maturity date.
(19) Register of Deposits 15: As regards Register of Deposits, refer provisions
given under ‘Acceptance of Deposits from Public’ because same provisions
are applicable.
(20) Premature Repayment of Deposits 16: As regards premature repayment of

deposits, refer provisions given under ‘Acceptance of Deposits from Public’
because same provisions are applicable.
(21) Filing of Return of Deposits with the Registrar 17: A duly audited Return of
Deposits in DPT-3 (containing particulars as on 31 st March of every year)
shall be filed with the Registrar of Companies along with requisite fee on or
before 30th June of that year and declaration to that effect shall be submitted
by the auditor in Form DPT-3.* It is clarified by way of Explanation that DPT-3
shall be used to include particulars of deposits or particulars of transactions
not considered as deposits or both by every company (other than a
Government company).
13
As per Rule 11.
14
As per Rule 12.
15
As per Rule 14.
16
As per Rule 15.
17
As per Rule 16.
* Inserted by Companies (Acceptance of Deposits) Amendment Rules, 2022

5.21 a
(22) No Right to Alter any Terms and Conditions of Deposit 18: The company
has no right to alter, either directly or indirectly, any of the terms and
conditions of the deposit, deposit trust deed and deposit insurance contract
which may prove disadvantageous to the interest of the depositors after
circular or circular in the form of advertisement is issued and deposits are
accepted.
(23) Disclosures in Financial Statements 19: A public company shall disclose in its
financial statements by way of note about the money received from its
directors.
In case of a private company it shall disclose in its financial statements by

way of note about the money received from the directors or the relatives of
directors.
(24) Penal Rate of Interest 20: In case the company fails to repay deposits (both
secured and unsecured) on maturity, after they are claimed, it shall pay penal
rate of interest of eighteen per cent per annum for the overdue period.
(25) Punishment for Contravention21: If any company inviting deposits or any

other person contravenes any of the ‘deposit rules’ for which no punishment
is provided in the Act, the company and every officer-in-default shall be
punishable as under:
• with fine extendable to five thousand rupees; and
• in case the contravention is a continuing one, with a further fine which

may extended to five hundred rupees for every day after the first day
during which the contravention continues.
18
As per Rule 3 (7).
19
As per Rule 16A. — Vide Rule 16A (3), as a onetime measure, every company (other than a
Government company) was required to file a onetime return of outstanding receipt of money or
loan by a company not considered as deposits from 1 st April 2014 till 31st March, 2019 in Form
DPT-3 with the Registrar of Companies within ninety days from 31 st March, 2019 along with
requisite fee.
20
As per Rule 17.
21
As per Rule 21.

5. PROVISIONS REGARDING ACCEPTANCE OF

DEPOSITS FROM PUBLIC BY ELIGIBLE
COMPANIES [SECTION 76]
Only ‘eligible companies’ are permitted to accept deposits from the public, in
addition to their members.
It means not all the companies can access the public at large for raising deposits
though they can accept deposits from their members.
Section 76 of the Act and the Companies (Acceptance of Deposits) Rules, 2014 deal
with acceptance of deposits from public by eligible companies.
The acceptance of deposits from public shall be subject to compliance with section
73 (2) and the prescribed rules.
These provisions are stated as under:
(1) Net Worth/Turnover Criterion 22: A public company, having net worth of
not less than one hundred crore rupees or turnover of not less than five
hundred crore rupees, may accept deposits from persons other than its members.
Such type of public company is known as ‘eligible company’.
(2) Passing of Special Resolution 23: The ‘eligible company’ is required to obtain
the prior consent by means of a special resolution in general meeting and also
file the said resolution with the Registrar of Companies before making any
invitation to the public for acceptance of deposits.
However, an ‘eligible company’, which is accepting deposits within the limits
specified under section 180 (1) (c), may accept deposits by means of an ordinary
resolution.
(3) Obtaining of Credit Rating 24: The ‘eligible company’ shall be required to
obtain the rating (including its net-worth, liquidity and ability to pay its deposits
on due date) from a recognised credit rating agency. The given rating ensuring
‘adequate safety’ shall be informed to the public at the time of invitation of
22
As per Rule 2 (1) (e).
23
As per Rule 2 (1) (e).
24
As per first Proviso to section 76 (1).

5.23 a
deposits from the public. Further, the rating shall be obtained every year during
the tenure of deposits.
As per Rule 3 (8), a copy of the credit rating which is being obtained at least once
in a year shall be sent to the Registrar of Companies along with the Return of
Deposits in Form DPT-3.
Further, the credit rating shall not be below the minimum investment grade rating
or other specified credit rating for fixed deposits. It shall be obtained from any one
of the approved credit rating agencies as specified for Non-Banking Financial
Companies in the Non-Banking Financial Companies Acceptance of Public
Deposits (Reserve Bank) Directions, 1998, as amended from time to time.
(4) Charge Creation on Assets Necessary if the Deposits are Secured 25: Every
company which accepts secured deposits from the public shall within thirty days
of such acceptance, create a charge on its assets. The amount of charge shall not
be less than the amount of deposits accepted. The charge shall be created in
favour of the deposit holders in accordance with the prescribed rules.
In respect of creation of security, Rule 6 states that the company accepting
secured deposits shall create security by way of charge on its tangible assets only.
The other notable points are:
• The company cannot create charge on intangible assets (i.e. goodwill, trade-
marks, etc.).
• Total value of security should not be less than the amount of deposits
accepted and interest payable thereon.
• The market value of assets subject to charge shall be assessed by a
registered valuer.
• The security shall be created in favour of a trustee for the depositors on
specific movable and immovable property of the company.
(5) Tenure for which Deposits can be Accepted 26 : A company is not
permitted to accept or renew deposits (whether secured or unsecured) which is
repayable on demand or in less than six months. Further, the maximum period of
acceptance of deposit cannot exceed thirty-six months.
25
As per second Proviso to section 76 (1).
26
As per Rule 3 (1).

Exception to the rule of tenure of six months: For the purpose of meeting any of
its short-term requirements of funds, a company may accept or renew deposits for
repayment earlier than six months subject to the condition that—
(i) such deposits shall not exceed ten per cent. of the aggregate of the paid-up
share capital, free reserves and securities premium account of the company;
and
(ii) such deposits are repayable only on or after three months from the date of
such deposits or renewal.
(6) Appointment of Trustee for Depositors 27 : Following provisions are
required to be observed in this respect:
• One or more trustees for depositors need to be appointed by the company
for creating security for the deposits.
• A written consent shall be obtained from the trustees before their
appointment.
• A statement shall appear in the advertisement with reasonable prominence
to the effect that the trustees for depositors have given their consent to the
company for such appointment.
• The company shall execute a Deposit Trust Deed in Form DPT-2 at least
seven days before issuing the circular or circular in the form of
advertisement.
• No person including a company that is in the business of providing
trusteeship services shall be appointed as a trustee for the depositors, if the
proposed trustee:
(a) is a director, key managerial personnel or any other officer or an
employee of the company or of its holding, subsidiary or associate
company or a depositor in the company;
(b) is indebted to the company, or its subsidiary or its holding or associate
(c) has any material pecuniary relationship with the company;
27
As per Rule 7.

5.25 a
(d) has entered into any guarantee arrangement in respect of principal

debts secured by the deposits or interest thereon;
(e) is related to any person specified in clause (a) above.
No trustee for depositors shall be removed from office after the issue of
circular or advertisement and before the expiry of his term except with the
consent of all the directors present at a meeting of the board. In case the
company is required to have independent directors, at least one independent
director shall be present in such meeting of the Board.
(7) Meeting of Depositors to be called by Trustee 28 : The trustee for
depositors shall call a meeting of all the depositors in the following cases:
(a) on receipt of a requisition in writing signed by at least one-tenth of the
depositors in value for the time being outstanding;
(b) on the happening of any event, which constitutes a default or which, in the
opinion of the trustee for depositors, affects the interest of depositors.
(8) Maximum Amount of Deposits 29: An eligible company is permitted to
accept or renew deposits as under:
• From its Members: The amount of such deposit together with outstanding
deposits from the members as on the date of acceptance or renewal can be
maximum ten per cent. of the aggregate of its paid-up share capital, free
reserves and securities premium account;
• From Persons other than its Members: The amount of such deposits
together with the amount of outstanding deposits (excluding deposits from
members) on the date of acceptance or renewal can be maximum twenty-
five per cent. of the aggregate of its paid-up share capital, free reserves and
securities premium account.
(9) Maximum Amount of Acceptable Deposit in case of an Eligible
Government Company30: Such a company is permitted to accept or renew any
deposit together with the amount of other outstanding deposits as on the date of
28
As per Rule 9.
29
As per Rule 3 (4).
30
As per Rule 3 (5).

acceptance or renewal maximum up to thirty-five per cent. of the aggregate of

its paid-up share capital, free reserves and securities premium account.
(10) Issuance of Circular in the Form of Advertisement 31: An ‘eligible company’
intending to invite deposits is required to issue a circular in the form of an
advertisement in DPT-1.
Such advertisement shall be published in English in an English newspaper and in
vernacular language in a vernacular newspaper. Both newspapers should have
wide circulation in the State in which the registered office of the company is
situated.
If the company has its website, the circular shall also be placed on the website.
Such advertisement shall be issued on the authority and in the name of Board of
Directors of the company.
• Filing with the Registrar: At least thirty days before the issue of the
advertisement, its copy duly signed by a majority of the directors who
approved the advertisement or otherwise signed by their duly authorised
agents is required to be delivered to the Registrar of Companies for
registration.
• Validity of the Advertisement: The advertisement shall remain valid till the
earliest of the following dates:
(a) up to six months from the closure of the financial year in which it is
issued; or
(b) the date on which the financial statements are laid before the company
at the Annual General Meeting (AGM), or in case no AGM has been
held, the latest day on which the AGM should have been held as per
the relevant statutory provisions.
• Fresh Advertisement: A fresh advertisement shall be issued, in each
succeeding financial year, for inviting deposits during that financial year.
• Issue and Effective dates: The date on which the advertisement appeared in
the newspaper shall be taken as the date of the issue of advertisement.
Further, the effective date of issue of circular shall be the date on which the
circular was dispatched.
31
As per Rule 4.

5.27 a
(11) Maintenance and Using the Amount of Deposit Repayment Reserve

Account: The company is required to deposit, on or before 30th April of each year,
at least 20% of the amount of its deposits maturing during the following financial
year and kept in a scheduled bank in a separate bank account to be called Deposit
Repayment Reserve Account. [Section 73 (2) (c)]
Rule 13 states that the amount so deposited in the account shall not be used by
the company for any purpose other than repayment of deposits. Further, it states
that such amount shall not at any time fall below twenty percent of the amount
of deposits maturing during the financial year.
(12) Ceiling on Rate of Interest and Brokerage Payable on Deposits 32: An

eligible company is permitted to invite or accept or renew any deposit at any rate
of interest or pay any amount of brokerage but in no case, it shall exceed the
maximum rate of interest or brokerage prescribed by the Reserve Bank of India in
case of non-banking financial companies (NBFCs) for acceptance of deposits.
Further, no brokerage shall be paid to any person except the person who is
authorised in writing by the company to solicit deposits on its behalf and through
whom deposits are actually procured.
(13) Filling of Application Form for making Deposits33: A company shall accept
or renew any deposit, whether secured or unsecured, only when an application, as
specified by the company, is submitted by the intending depositor for the
acceptance of deposit.
The application shall contain a declaration made by the intending depositor to the
effect that the deposit is not being made out of any money borrowed by him from
any other person.
(14) Deposits in Joint Names 34: In case the depositors so desire, deposits may
be accepted in joint names not exceeding three. A joint deposit may be accepted
with or without any of the clauses, namely, “Jointly”, “Either or Survivor”, “First
named or Survivor”, “Anyone or Survivor”. These clauses operate on maturity of
deposit.
32
As per Rule 3 (6).
33
As per Rule 10.
34
As per Rule 3 (2).

(15) Nomination35: Every depositor may nominate any person at any time. The
nominee shall be the person to whom his deposits shall vest in the event of his
death.
(16) Deposit Receipt 36: Within a period of twenty-one days from the date of
receipt of money or realization of cheque or date of renewal, the company is
required to furnish a deposit receipt to the depositor or his agent. The receipt shall
be signed by the duly authorised officer and state the date of deposit, th e name
and address of the depositor, the amount of deposit, the rate of interest and the
maturity date.
(17) Register of Deposits 37:
• Every company accepting deposits shall maintain one or more separate

registers for deposits accepted or renewed at its registered office.
Following particulars shall be entered separately in the case of each

depositor:
(a) name, address and PAN of the depositor/s;
(b) particulars of the guardian, in case of a minor;
(c) particulars of the nominee;
(d) deposit receipt number;
(e) date and the amount of each deposit;
(f) duration of the deposit and the date on which each deposit is
repayable;
(g) rate of interest on such deposits to be payable to the depositor;
(h) due date for payment of interest;
(i) mandate and instructions for payment of interest and for non-
deduction of tax at source, if any;
(j) date or dates on which the payment of interest shall be made;
35
As per Rule 11.
36
As per Rule 12.
37
As per Rule 14.

5.29 a
(l)
38
particulars of security or charge created for repayment of deposits;
(m) any other relevant particulars.
• The entries shall be made within seven days from the date of issuance of the
receipt duly authenticated by a director or secretary of the company or by
any other officer authorised by the Board for this purpose.
• The said register shall be preserved in good order for a period of not less than
eight years from the financial year in which the latest entry is made in the
register.
(18) Premature Repayment of Deposits 39: After the expiry of six months but
before the actual date of maturity, if a depositor requests for premature
repayment, the rate of interest payable shall be one percent less than the rate
which would be payable for the period for which the deposit has actually run.
In this respect it is to be noted that the period for which the deposit has run, if it
contains any part of the year which is less than six months then it shall be
excluded; otherwise if that part is six months or more it shall be taken as one year.
Reduction of rate of interest is not applicable in the following cases:
• Where the deposit is prematurely repaid to comply with Rule 3 i.e. premature
repayment made in order to reduce the total amount of deposits to bring it
within the permissible limits; or
• Where the deposit is prematurely repaid to provide for war risk or other
related benefits to the personnel of naval, military or air forces or to their
families during the period of emergency declared under Article 352 of the
Constitution.
(19) Premature Closure of Deposit to Earn Higher Rate of Interest 40: In case a
depositor desires to avail higher rate of interest by renewing the deposit before its
actual maturity date, the company shall pay him the higher rate of interest only if
the deposit is renewed for a period longer than the unexpired period of deposit.
38
Clause (k) relating to details of deposit insurance was omitted by the Companies
(Acceptance of Deposits) Amendment Rules, 2018, w.e.f. 15-08-2018. [Notification No. G.S.R.
612 (E), dated 5th July, 2018 w.e.f. 15-08-2018]
39
As per Rule 15.
40
As per Rule 15 (Second Proviso).

(20) Filing of Return of Deposits with the Registrar 41: A duly audited Return of
Deposits in DPT-3 (containing particulars as on 31 st March of every year) shall be
filed with the Registrar of Companies along with requisite fee on or before 30 th
June of that year.
It is clarified by way of Explanation that DPT-3 shall be used to include particulars
of deposits or particulars of transactions not considered as deposits or both by
every company (other than a Government company).
(21) Disclosures in Financial Statements 42: A public company shall disclose in its
financial statement by way of note about the money received from its directors.
(22) Penal Rate of Interest 43: In case the company fails to repay deposits (both
secured and unsecured) on maturity, after they are claimed, it shall pay penal rate
of interest of eighteen per cent per annum for the overdue period.
(23) No Right to Alter any Terms and Conditions of Deposit44: The company
has no right to alter any of the terms and conditions of the deposit, deposit trust
deed and deposit insurance contract which may prove detrimental to the interest
of the depositors after circular or circular in the form of advertisement is issued
and deposits are accepted.
(24) Punishment for Contravention45: If any eligible company inviting deposits
or any other person contravenes any of the ‘deposit rules’ for which no
punishment is provided in the Act, the company and every officer-in-default shall
be punishable as under:
• with fine extendable to five thousand rupees; and
• in case the contravention is a continuing one, with a further fine up to five
hundred rupees for every day after the first day during which the
contravention continues.
41
As per Rule 16.
42
As per Rule 16A. — Vide Rule 16A (3), as a onetime measure, every company (other than a
Government company) was required to file a onetime return of outstanding receipt of money
or loan by a company not considered as deposits from 1 st April 2014 till 31st March, 2019 in
Form DPT-3 with the Registrar of Companies within ninety days from 31 st March, 2019 along
with requisite fee.
43
As per Rule 17.
44
As per Rule 3 (7).
45
As per Rule 21.

5.31 a
(25) Applicability of Section 73 and 74 to Eligible Companies: Rule 19 states

that pursuant to provisions of sub-section (2) of section 76 of the Act, the
provisions of sections 73 and 74 shall, mutatis mutandis, apply to acceptance of
deposits from public by eligible companies.
Note: Besides Rule 19, section 76 (2) of the Act states that the provisions of
Chapter V shall, mutatis mutandis, apply to the acceptance of deposits from public
under section 76.
6. PUNISHMENT FOR CONTRAVENTION OF

SECTION 73 OR SECTION 76 [SECTION 76A]
According to section 76A of the Act, in case a company accepts or invites or allows
any other person to accept or invite on its behalf any deposit in contravention of
the manner or the conditions prescribed under section 73 or section 76 or rules
made thereunder or if a company fails to repay the deposit or part thereof or any
interest within the time specified under section 73 or section 76 or rules made
thereunder or such further time as may be allowed by the Tribunal under section
73, then the following consequences will follow:
(a) Punishment for the company: The company shall, in addition to the
payment of the amount of deposit or part thereof and the interest due, be
punishable with fine which shall not be less than one crore rupees or twice
the amount of deposit accepted by the company, whichever is lower but
which may extend to ten crore rupees; and
(b) Punishment for officer-in-default: Every officer of the company who is in
default shall be punishable with imprisonment which may extend to seven
years and with fine which shall not be less than twenty-five lakh rupees but
which may extend to two crore rupees.
Further, if it is proved that the officer of the company who is in default, has
contravened such provisions knowingly or wilfully with the intention to
deceive the company or its shareholders or depositors or creditors or tax
authorities, he shall be liable for action under section 447 (Punishment for
fraud).

7. REPAYMENT OF DEPOSITS ACCEPTED BEFORE

COMMENCEMENT OF THE COMPANIES ACT,
2013 [SECTION 74]
The provisions regarding repayment of deposits accepted before commencement
of the Companies Act, 2013, have been dealt with in section 74. These provisions
are explained as under:
(i) Filing of Statement of Deposits with the Registrar of Companies and
Repayment thereafter: As per section 74 (1), in case any deposit was
accepted by a company before the commencement of this Act (i.e. before 1-
4-2014), and the amount of such deposit or any interest remains unpaid as
on 1-4-2014 or becomes due at any time thereafter, the company shall take
the following steps:
(a) file, within a period of 3 months from such commencement or from the
date on which such payments are due, with the Registrar:
• a statement of all the deposits accepted by the company and
sums remaining unpaid on such amount with the interest payable
thereon along with the arrangements made for such repayment.
This is to be done notwithstanding anything contained in any
other law for the time being in force or under the terms and
conditions subject to which the deposit was accepted or any
scheme framed under any law; and
(b) repay within three years from such commencement or on or before

expiry of the period for which the deposits were accepted, whichever is
earlier.
Note 1: As per Explanation to Rule 19 if the company has been repaying such
deposits and interest thereon without any default on due dates for the
remaining period of such deposit in accordance with the terms and
conditions, point (b) above shall be deemed to have been complied with.
Note 2: It is to be noted that renewal of any such deposits shall be done in
accordance with the provisions of Chapter V and the rules made thereunder.
(ii) Extension of Time for Repayment of Deposits by the Tribunal: As per
section 74 (2), the Tribunal may, on an application made by the company,

5.33 a
after considering the financial condition of the company, the amount of

deposit and the interest payable thereon and such other matters, allow
further time as considered reasonable to the company to repay the deposit.
(iii) Punishment for Non-Repayment of Deposits: As per section 74 (3), if a
company fails to repay the deposit or part thereof or any interest thereon
within the time specified in section 74 (1) or such further extended time
allowed by the Tribunal under section 74 (2), the company shall, in addition
to the payment of the amount of deposit or part thereof and the interest
due, be punishable as under:
• company: with fine minimum of one crore rupees and maximum of ten
crore rupees; and
• every officer-in-default: with imprisonment extendable to seven years
or with fine minimum of twenty-five lakh rupees and maximum of two
crore rupees, or with both.
8. POWER OF CENTRAL GOVERNMENT TO

DECIDE CERTAIN QUESTIONS
As per Rule 18, If any question arises as to the applicability of these rules to a
particular company, such question shall be decided by the Central Government
in consultation with the Reserve Bank of India.
SUMMARY
 Deposit includes any receipt of money by way of (i) deposit or (ii) loan or (iii)
in any other form by a company.
But it does not include such categories of amount which are prescribed in
the ‘Acceptance of Deposits’ Rules.
 Depositor means any member of the company who has made a deposit with
the company.
Depositor also means any other person (not being a member of the
company) who has made a deposit with a public company categorised as
‘eligible company’.

 A public company, having net worth of not less than one hundred crore
rupees or turnover of not less than five hundred crore rupees, is known as
‘eligible company’. It can accept deposits both from the public and its
members.
 Section 73 prohibits a company to invite, accept or renew deposits from

public if they are not accepted or renewed in the prescribed manner. This
prohibition however shall not apply in case of certain exempted companies
i.e.:
• banking company;
• non- banking financial company;
• a housing finance company registered with NHB;

• such other company as the Central Government may specify.
 A company may accept deposits from its members on mutually agreed terms
and conditions subject to the passing of a resolution in general meeting.
 Every company referred to in section 73 (2) intending to invite deposits from

its members shall issue a circular to all its members in Form DPT-1.
Exemption is available to certain private companies.
 An ‘eligible company’ shall obtain the prior consent of the company in

general meeting by means of a special resolution and also file the same with
the Registrar of Companies before making any invitation to the public for
acceptance of deposits.
 An ‘eligible company’ accepting deposits within the limits specified under

section 180 (1) (c) may accept deposits by means of an ordinary resolution.
 Every ‘eligible company’ intending to invite deposits shall issue a circular in

the form of advertisement in Form DPT-1.
 Deposits shall be accepted by the companies within the specified limits.
 Deposits may be accepted by a company in joint names not exceeding three.
 The Deposit Repayment Reserve Account shall not be used by the company
for any purpose other than repayment of deposits.
 In case of secured deposits, the company is required to create security of

equivalent amount by way of charge on its tangible assets.

5.35 a
 A company shall not issue any circular or advertisement for inviting secured
deposits unless it appoints one or more trustees.
 Every company accepting deposits shall maintain at its registered office one
or more separate registers for deposits accepted or renewed.
 A public company shall disclose in its financial statements by way of note

about the money received from its directors.
 A private company shall disclose in its financial statements by way of notes,

about the money received from the directors, or relatives of directors.
 A ‘Deposit Receipt’ shall be issued by the company to the depositor or his

agent within twenty-one days from the date of receipt of money or
realisation of cheque or date of renewal.
 Nomination facility shall be available to every depositor.
 Premature repayment of deposits is permissible.
 Every company shall pay a penal rate of interest of 18% p.a. for the overdue
period in case of default in repayment.
 The Return of Deposits shall be filed in Form DPT-3 with the Registrar.
 If a company fails to repay the deposit or part thereof or any interest

thereon, the depositor concerned may apply to the National Company Law
Tribunal (NCLT) for an order directing the company to pay the sum due or
for any loss or damage incurred by him as a result of such non-payment and
for such other orders as the NCLT may deem fit.
 In case of default in repayment, a company is punishable with fine and every

officer-in-default shall be punishable with imprisonment and also fine. In case
of willful default committed with the intention to deceive various
stakeholders, he shall be liable for action under section 447.
TEST YOUR KNOWLEDGE

1. Varsha Limited decides to raise deposits of ` 20.00 lakh from its members.
However, it proposes to secure such deposits partially by offering a security
worth ` 15.00 lakh. Which of the following options best describe such deposits:

(a) Fully secured deposits (except a small portion)

(b) Unsecured deposits
(c) Partially secured deposits
(d) These cannot be classified as deposits

2. What is the maximum tenure for which a company can accept or renew
deposits from its members as well as public?
(a) 12 months
(b) 24 months
(c) 36 months
(d) 48 months
3. Fin Limited is accepting deposits of various tenures from its members from
time to time. The current Register of Deposits, maintained at its registered
office is complete. State the minimum period for which it should mandatorily
be preserved in good order.
(a) Four years from the financial year in which the latest entry is made in
the Register.
(b) Six years from the financial year in which the latest entry is made in the
Register.
(c) Eight years from the financial year in which the latest entry is ma de in
the Register.
(d) Ten years from the latest date of entry.
4. Every company shall pay a penal rate of interest of ----------------- per annum
for the overdue period in case of deposits, whether secured or unsecured,
matured and claimed but remaining unpaid:
(a) 9%
(b) 14%
(c) 18%
(d) 24%

5.37 a
5. As per the provisions of the Companies Act, 2013 and relevant rules
thereunder, an eligible company is not permitted to accept from public or
renew the same deposits (whether secured or unsecured) which is repayable on
demand or in less than ______________ months. Further, the maximum period of
acceptance of deposit cannot exceed ________________ months. But, for the
purpose of meeting any of its short- term requirements of funds, a company
may accept or renew deposits for repayment earlier than ______________ months
subject to certain conditions.
(a) six, thirty six, six
(b) three, twenty four, three

(c) six, sixty, six
(d) three, sixty, six
1. Enumerate the amounts which when received by a company in the ordinary
course of business are not to be considered as deposits.
2. State the procedure to be followed by companies for acceptance of deposits
from its members according to the Companies Act, 2013. What are the
exemptions available to a private limited company?
3. Explain the provisions for 'Appointment of Trustee for Depositors' under the
Companies Act, 2013 read with the ‘Acceptance of Deposits’ Rules, 2014.
4. What are the provisions relating to ‘Credit Rating’ which an ‘eligible company’
must follow if it wants to raise public deposits?
5. Discuss the following situations in the light of ‘deposit provisions’ as contained
in the Companies Act, 2013 and the Companies (Acceptance of Deposits)
Rules, 2014, as amended from time to time.
(i) Samit, one of the directors of Zarr Technology Private Limited, a start-up
company, requested his close friend Ritesh to lend to the company
` 30.00 lakh in a single tranche by way of a convertible note repayable
within a period six years from the date of its issue. Advise whether it is a
deposit or not.

(ii) Polestar Traders Limited received a loan of ` 30.00 lakh from Rachna
who is one of its directors. Advise whether it is a deposit or not.
(iii) City Bakers Limited failed to repay deposits of ` 50.00 crore and interest
due thereon even after the extended time granted by the Tribunal. Is the
company or Swati, its officer-in-default, liable to any penalty?
(iv) Shringaar Readymade Garments Limited wants to accept deposits of
` 50.00 lakh from its members for a tenure which is less than six months.
Is it a possibility?
(v) Is it in order for the Diamond Housing Finance Limited to accept and
renew deposits from the public from time to time?
6. ABC Limited having a net worth of ` 120 crore wants to accept deposit from its
members. The directors of the company have approached you to advise them
as to what special care has to be taken while accepting such deposit from the
members in case their company falls within the category of an ‘eligible
company’.
7. Define the term 'deposit' under the provisions of the Companies Act, 2013 and
comment quoting relevant provisions whether the following amounts received
by a company will be considered as deposits or not:
(i) ` 5,00,000 raised by Rishi Confectionaries Limited through issue of non-

convertible debentures not constituting a charge on the assets of the
company and listed on a recognised stock exchange as per the
applicable regulations made by the Securities and Exchange Board of
India.
(ii) ` 2,00,000 received by Raja Yarns Limited from its employee Mr. Tarun,
who draws an annual salary of ` 1,50,000, as a non-interest bearing
security deposit under a contract of employment.
(iii) ` 3,00,000 received by a private company from one of the relatives of a
Director. The said relative has furnished a declaration that the amount
was received by him from his mother as a gift.
8. State, with reasons, whether the following statements are ‘True or False’?

5.39 a
(i) ABC Private Limited may accept deposits from its members to the extent
of ` 50.00 lakh, if the aggregate of its paid-up capital, free reserves and
security premium account is ` 50.00 lakh.
(ii) A Government Company, which is eligible to accept deposits under
Section 76 of the Companies Act, 2013, cannot accept deposits from
public exceeding 25% of the aggregate of its paid-up capital, free
reserves and security premium account.
9. Answer the following citing relevant provisions:
(a) Prayas Electricals Limited having paid-up capital of ` 1 crore availed a
term loan of ` 10,00,000 from Beta Bank Limited to purchase electrical
items. Mr. Sambhav, one of the directors of the company, is of the
opinion that it shall be considered as ‘deposit’. Is his contention correct?
(b) Eklavya Publishing Company Limited facing acute cash crunch wants to
utilise a portion of ‘Deposit Repayment Reserve Account’ to pay off its
short-term creditors who are pressing hard for repayment of
` 20,00,000. Is it justified to use funds lying in ‘Deposit Repayment
Reserve Account’ in this manner?
(c) Sanjiv is a shareholder in Utsah Textiles Private Limited holding 10,000
shares of ` 10 each. His wife Sneha and his three sons Aayush, Pranav
and Himanshu are also shareholders in the company holding 1,000
shares each. In response to the invitation from the company inviting
deposits from its members, Sanjiv wants to deposit Rs. 1,00,000 for 36
months jointly with his wife and three sons. Whether Utsah Textiles
Private Limited can accede to the request of Sanjiv and accept deposit
jointly in five names since all the depositors are shareholders of the
company.
10. Shubhra Chemicals Private Limited (not a start-up company) is desirous of
accepting ‘deposits’ from its members amounting to two hundred percent of
aggregate of its paid-up share capital, free reserves and securities premium
account. What are the conditions it must fulfill before such acceptance?

ANSWERS
1. (b) Unsecured deposits
2. (c) 36 months
3. (c) Eight years from the financial year in which the latest entry is
made in the Register.
4. (c) 18%
5. (a) six, thirty six, six

1. According to Rule 2 (1) (c) (xii) of the Companies (Acceptance of Deposits)
Rules, 2014, following amounts if received by a company in the course of, or
for the purposes of, the business of the company, shall not be considered as
deposits:
(a) any amount received as an advance for the supply of goods or
provision of services accounted for in any manner whatsoever to be
appropriated within a period of three hundred and sixty-five days from
the date of acceptance of such advance:
However, in case any advance is subject matter of any legal
proceedings before any court of law, the time limit of three hundred
and sixty-five days shall not apply.
(b) any amount received as advance in connection with consideration for

an immovable property under an agreement or arrangement. However,
such advance is required to be adjusted against such property in
accordance with the terms of agreement or arrangement;
(c) any amount received as security deposit for the performance of the
contract for supply of goods or provision of services;
(d) any amount received as advance under long term projects for supply of
capital goods except those covered under item (b) above;
(e) any amount received as an advance towards consideration for
providing future services in the form of a warranty or maintenance

5.41 a
contract as per written agreement or arrangement, if the period for

providing such services does not exceed the period prevalent as per
common business practice or five years, from the date of acceptance of
such service whichever is less;
(f) any amount received as an advance and as allowed by any sectoral
regulator or in accordance with directions of Central or State
Government;
(g) any amount received as an advance for subscription towards
publication, whether in print or in electronic to be adjusted against
receipt of such publications;
However, if the amount received under items (a), (b) and (d) above becomes
refundable (with or without interest) due to the reasons that the company
accepting the money does not have necessary permission or approval,
wherever required, to deal in the goods or properties or services for which
the money is taken, then the amount received shall be deemed to be a
deposit under these rules.
Further, for the purposes of this sub-clause the amount shall be deemed to
be deposits on the expiry of fifteen days from the date it became due for
refund.
2. Acceptance of deposits by a company from its members: As per section
73 (2) of the Companies Act, 2013, a company may, subject to the passing of
a resolution in general meeting and subject to such rules as may be
prescribed in consultation with the Reserve Bank of India, accept deposits
from its members on such terms and conditions, including the provision of
security, if any, or for the repayment of such deposits with interest, as may be
agreed upon between the company and its members, subject to the
fulfilment of the following conditions, namely—
(a) Issuance of a circular to its members including therein a statement

showing the financial position of the company, the credit rating
obtained, the total number of depositors and the amount due towards
deposits in respect of any previous deposits accepted by the company
and such other particulars in such form and in such manner as may be
prescribed;

(b) Filing a copy of the circular along with such statement with the
Registrar within 30 days before the date of issue of the circular;
(c) Depositing, on or before the thirtieth day of April each year, such sum
which shall not be less than twenty per cent of the amount of its
deposits maturing during the following financial year and kept in a
scheduled bank in a separate bank account to be called deposit
repayment reserve account;
(d) Omitted
(e) Certifying that the company has not committed any default in the
repayment of deposits accepted either before or after the
commencement of this Act or payment of interest on such deposits
and where a default had occurred, the company made good the default
and a period of five years had lapsed since the date of making good
the default; and
(f) Providing security, if any for the due repayment of the amount of
deposit or the interest thereon including the creation of such charge
on the property or assets of the company.
Every deposit accepted by a company shall be repaid with interest in

accordance with the terms and conditions of the agreement. Where a
company fails to repay the deposit or part thereof or any interest thereon,
the depositor concerned may apply to the National Company Law Tribunal
(NCLT) for an order directing the company to pay the sum due or for any
loss or damage incurred by him as a result of such non-payment and for
such other orders as the NCLT may deem fit.
Exemption to certain private companies:
In terms of Notification No. GSR 464 (E), dated 05-06-2015 as amended from
time to time, Clauses (a) to (c) and (e) of sub-section (2) of section 73 with
respect to issue of circular, filing the copy of such circular with the Registrar,
depositing of certain amount and certification as to no default committed,
shall not apply to a private company:
(A) which accepts from its members monies not exceeding one hundred
per cent of aggregate of the paid-up share capital, free reserves and
securities premium account; or

5.43 a
(B) which is a start-up, for five years from the date of its incorporation; or
(C) which fulfils all of the following conditions, namely:
company;
(b) if the borrowings of such a company from banks or financial
institutions or any body corporate is less than twice of its paid-up
share capital or fifty crore rupees, whichever is lower; and
(c) such a company has not defaulted in the repayment of such
borrowings subsisting at the time of accepting deposits under this
section.
However, such a company [as referred to in clauses (A), (B) or (C)] shall file
the details of monies accepted to the Registrar in the specified manner (i.e.
in Form DPT-3).
3. Appointment of Trustee for Depositors: In this respect following
provisions are required to be observed as mentioned in Rule 7 of the
Companies (Acceptance of Deposits) Rules, 2014:
• One or more trustees for depositors need to be appointed by the
company for creating security for the deposits.
• A written consent shall be obtained from the trustees before their
appointment.
• A statement shall appear in the circular or advertisement with
reasonable prominence to the effect that the trustees for depositors
have given their consent to the company for such appointment.
• The company shall execute a deposit trust deed in Form DPT-2 at least
seven days before issuing the circular or circular in the form of
advertisement.
• No person including a company that is in the business of providing
trusteeship services shall be appointed as a trustee for the depositors, if the
proposed trustee:
(a) is a director, key managerial personnel or any other officer or an
employee of the company or of its holding, subsidiary or
associate company or a depositor in the company;

(b) is indebted to the company, or its subsidiary or its holding or

associate company or a subsidiary of such holding company;
(c) has any material pecuniary relationship with the company;
(d) has entered into any guarantee arrangement in respect of
principal debts secured by the deposits or interest thereon;
(e) is related to any person specified in clause (a) above.
• No trustee for depositors shall be removed from office after the issue
of circular or advertisement and before the expiry of his term except
with the consent of all the directors present at a meeting of the board.
In case the company is required to have independent directors, at least
one independent director shall be present in such meeting of the
Board.
4. The provisions relating to obtaining of ‘Credit Rating’ to be followed by an
‘eligible company’ are contained in Section 76 (1) of the Companies Act,
2013 and Rule 3 (8) of the Companies (Acceptance of Deposits) Rules, 2014
as amended from time to time. Accordingly, an ‘eligible company’ which
desires to raise public deposits shall be required to obtain the rating
(including its net-worth, liquidity and ability to pay its deposits on due date)
from a recognised credit rating agency. The given rating which ensures
adequate safety shall be informed to the public at the time of invitation of
deposits from the public. Further, the rating shall be obtained every year during
the tenure of deposits.
As per Rule 3 (8), copy of the credit rating which is being obtained at least
once in a year shall be sent to the Registrar of Companies along with the
Return of Deposits in Form DPT-3.
Further, the credit rating shall not be below the minimum investment grade
rating or other specified credit rating for fixed deposits. It shall be obtained
from any one of the approved credit rating agencies as specified for Non-
Banking Financial Companies in the Non-Banking Financial Companies
Acceptance of Public Deposits (Reserve Bank) Directions, 1998, as amended
from time to time.

5.45 a
5. (i) In terms of Rule 2 (1) (c) (xvii) if a start-up company receives rupees
twenty-five lakh or more by way of a convertible note (convertible into
equity shares or repayable within a period not exceeding ten years
from the date of issue) in a single tranche, from a person, it shall not
be treated as deposit.
In the given case, Zarr Technology Private Limited, a start-up company,

received ` 3.00 lakh from Ritesh in a single tranche by way of a
convertible note which is repayable within a period of six years from
the date of its issue. In view of Rule 2 (1) (c) (xvii) which requires a
convertible note to be repayable within a period of ten years from the
date of its issue, the amount of ` 30.00 lakh shall not be considered as
deposit.
(ii) In terms of Rule 2 (1) (c) (viii), any amount received from a person who
is director of the company at the time of giving loan to the company
shall not be treated as deposit if such director furnishes to the
company at the time of giving money, a written declaration to the
effect that the amount is not being given out of funds acquired by him
by borrowing or accepting loans or deposits from others and further,
the company shall disclose the details of money so accepted in the
Board's report.
In the given case, it is assumed that Rachna was one of the directors of
Polestar Traders Limited when the company received a loan of ₹ 30.00
lakh from her. Further, it is assumed that she had furnished to the
company at time of giving money, a written declaration to the effect
that the amount was not being given out of funds acquired by her
by borrowing or accepting loans or deposits from others and in
addition, the company had disclosed the details of money so accepted
in the appropriate Board's report.
If these conditions are satisfied ` 30.00 lakh shall not be treated as

deposit.
(iii) By not repaying the deposit of ` 50.00 crore and the interest due
thereon even after the extended time granted by the Tribunal, City

Bakers Limited has contravened the conditions prescribed under

Section 73 of the Act. Accordingly, following penalty is leviable:
• Punishment for the company: City Bakers Limited shall, in addition

to the payment of the amount of deposit and the interest due
thereon, be punishable with fine which shall not be less than
rupees one crore or twice the amount of deposit accepted by the
company, whichever is lower but which may extend to rupees ten
crores.
• Punishment for officer-in-default: Swati, being the officer-in-

default, shall be punishable with imprisonment which may extend
to seven years and with fine which shall not be less than rupees
twenty-five lakh but which may extend to rupees two crore.
Further, if it is proved that Swati had contravened such provisions

knowingly or wilfully with the intention to deceive the company or its
shareholders or depositors or creditors or tax authorities, she will be
liable for action under section 447 (Punishment for fraud).
(iv) According to Rule 3 (1), a company is not permitted to accept or renew

deposits (whether secured or unsecured) which is repayable on
demand or in less than six months. Further, the maximum period of
acceptance of deposit cannot exceed thirty six months.
However, as an exception to this rule, for the purpose of meeting any of

its short-term requirements of funds, a company is permitted to accept
or renew deposits for repayment earlier than six months subject to the
conditions that:
(i) such deposits shall not exceed ten per cent. of the aggregate of
the paid-up share capital, free reserves and securities premium
account of the company; and
(ii) such deposits are repayable only on or after three months from
the date of such deposits or renewal.
In the given case of Shringaar Readymade Garments Limited, it wants

to accept deposits of ` 50.00 lakh from its members for a tenure which

5.47 a
is less than six months. It can do so if it justifies that the deposits are
required for the purpose of meeting any of its short-term requirements
of funds but in no case such deposits shall exceed 10% ten per cent of
the aggregate of its paid-up share capital, free reserves and securities
premium account and further, such deposits shall be repayable only on
or after three months from the date of such deposits.
(v) According to section 73 (1) of the Act, no company can accept or

renew deposits from public unless it follows the manner provided
under Chapter V of the Act (contains provisions regarding acceptance of
deposits by companies) for acceptance or renewal of deposits from
public. However, Proviso to Section 73 (1) states that nothing in this
sub-section shall apply to a banking company and non-banking
financial company as defined in the Reserve Bank of India Act, 1934
and to such other company as the Central Government may, after
consultation with the Reserve Bank of India, specify in this behalf.
Further, Rule 1 (3) (iii) states that the Companies (Acceptance of
Deposits) Rules, 2014 shall not apply to a housing finance company
registered with the National Housing Bank established under the
National Housing Bank Act, 1987.
In the given case, it is assumed that Diamond Housing Finance Limited

is registered with the National Housing Bank and therefore, the
‘Acceptance of Deposits’ Rules shall not apply to it.
Hence, Diamond Housing Finance Limited being an exempted

company, can accept and renew deposits from the public from time to
time without following the prescribed manner.
6. According to section 76 (1) of the Act, an “eligible company” means a public

company, having a net worth of not less than one hundred crore rupees or a
turnover of not less than five hundred crore rupees and which has obtained
the prior consent of the company in general meeting by means of a special
resolution and also filed the said resolution with the Registrar of Companies
before making any invitation to the public for acceptance of deposits.

However, an ‘eligible company’, which is accepting deposits within the limits

specified under section 180 (1) (c), may accept deposits by means of an
ordinary resolution.
According to Rule 4 (a), an ‘eligible company’ shall accept or renew any

deposit from its members, if the amount of such deposit together with the
amount of deposits outstanding as on the date of acceptance or renewal of
such deposits from members does not exceed ten per cent. of the aggregate
of the paid-up share capital, free reserves and securities premium account of
the company.
ABC Limited is having a net worth of 120 crore rupees. Hence, it falls in the
category of ‘eligible company’.
Thus, ABC Limited has to ensure that acceptance of deposits from its
members together with the amount of deposits outstanding as on the date
of acceptance or renewal of such deposits from the members, in no case,
exceeds 10% of the aggregate of the paid-up share capital, free reserves and
securities premium account of the company.
7. Deposit: According to Section 2 (31) of the Companies Act, 2013, the term
‘deposit’ includes any receipt of money by way of deposit or loan or in any
other form, by a company, but does not include such categories of amount
as may be prescribed in consultation with the Reserve bank of India.
Rule 2 (1) (c) of the Companies (Acceptance of Deposit) Rules, 2014 states various
amounts received by a company which will not be considered as deposits. In
terms of this Rule the answers to the given situations shall be as under:
(i) ` 5,00,000 raised by Rishi Confectionaries Limited through issue of

non-convertible debentures not constituting a charge on the assets of
the company and listed on recognised stock exchange as per the
applicable regulations made by the SEBI, will not be considered as
deposit in terms of sub-clause (ixa) of Rule 2 (1) (c).
(ii) ` 2,00,000 received by Raja Yarns Limited from its employee Mr. Tarun,
who draws an annual salary of ` 1,50,000, as a non-interest bearing
security deposit under a contract of employment will be considered as

5.49 a
deposit in terms of sub-clause (x) of Rule 2 (1) (c), for the amount
received is more than his annual salary of ` 1,50,000.
(iii) ` 3,00,000 received by a private company from one of the relatives of a

Director. When the relative furnishes a declaration that the said amount
was received by him from his mother as a gift, then it will not be
considered as deposit in terms of sub-clause (viii) of Rule 2 (1) (c). In
fact, the preceding sub-clause requires that any amount given by a
relative of a director of a private company shall not be considered as
deposit if the relative furnishes a declaration in writing to the effect
that the amount is not being given out of funds acquired by him
by borrowing or accepting loans or deposits from others. Thus, the
amount given to the private company out of gifted money by one of
the relatives of a director is not a ‘deposit’.
As an additional requirement, the company shall disclose the details of

money so accepted in the Board’s report. Further, according to Rule 16 (A)
(2), it shall also disclose in its financial statement, by way of notes, about the
money received from the directors, or relatives of directors.
8. (i) As per the provisions of Section 73 (2) of the Companies Act, 2013 read
with Rule 3 (3) of the Companies (Acceptance of Deposits) Rules, 2014,
as amended from time to time, a company shall accept any deposit
from its members, together with the amount of other deposits
outstanding as on the date of acceptance of such deposits not
exceeding thirty five per cent of the aggregate of the paid-up share
capital, free reserves and securities premium account of the company.
It is provided that a private company may accept from its members
monies not exceeding one hundred per cent of aggregate of the paid-
up share capital, free reserves and securities premium account and
such company shall file the details of monies so accepted to the
Registrar in Form DPT-3.
Therefore, the given statement where ABC Private Limited is accepting

deposits from its members to the extent of ` 50.00 lakh is ‘true’.

(ii) As per Rule 3 (5) of the Companies (Acceptance of Deposits) Rules

2014, a Government Company is not eligible to accept or renew
deposits under section 76, if the amount of such deposits together with
the amount of other deposits outstanding as on the date of acceptance
or renewal exceeds thirty five per cent of the aggregate of its paid-up
share capital, free reserves and securities premium account.
Therefore, the given statement where the limit of 25% has been stated
for acceptance of deposits is ‘false’.
9. (a) In terms of Rule 2 (1) (c) (iii) of the Companies (Acceptance of Deposits)
Rules, 2014, any amount received as a loan or facility from any banking
company shall not be considered as ‘deposit’.
In view of the above, the contention of Mr. Sambhav that the term loan
of ` 10,00,000 availed by the company from Beta Bank Limited shall be
considered as ‘deposit’ is not correct.
(b) Rule 13 of the Companies (Acceptance of Deposits) Rules, 2014, states

that the amount deposited in the ‘Deposit Repayment Reserve
Account’ shall not be used by a company for any purpose other than
repayment of deposits.
Since there is a prohibition, Eklavya Publishing Company Limited is not

permitted to utilise its ‘Deposit Repayment Reserve Account’ to pay off
its short-term creditors.
(c) Rule 3 (2) of the Companies (Acceptance of Deposits) Rules, 2014,

provides that where depositors so desire, deposits may be accepted in
joint names not exceeding three.
In view of this provision, Sanjiv can deposit ` 1,00,000 with Utsah

Textiles Private Limited jointly with two other persons only irrespective
of the fact that all the five persons are members of the company.
10. According to first proviso to Rule 3 (3), a private company may accept from
its members monies not exceeding 100% of aggregate of the paid-up share
capital, free reserves and securities premium account.

5.51 a
According to second proviso to Rule 3(3), the maximum limit in respect of

deposits to be accepted from members shall not apply to the classes of
private company which fulfils all of the following conditions, namely:

company;
(b) the borrowings of such a company from banks or financial institutions

or any body-corporate is less than twice of its paid-up share capital or
fifty crore rupees, whichever is less; and
(c) such a company has not defaulted in the repayment of such borrowings
subsisting at the time of accepting deposits under section 73:
According to third proviso all the companies accepting deposits shall file the
details of monies so accepted with the Registrar in Form DPT-3.
In case Shubhra Chemicals Private Limited is not an associate or a subsidiary

company of any other company and its borrowings from banks, etc. is less
than twice of its paid-up share capital or fifty crore rupees, whichever is less
and also it has not defaulted in the repayment of such borrowings subsisting
at the time of accepting deposits, then it can accept ‘deposits’ from its
members amounting to two hundred percent of aggregate of its paid-up
share capital, free reserves and securities premium account.
Further, it shall file the details of monies so accepted with the Registrar in
Form DPT-3.

CHAPTER a
6
REGISTRATION OF
CHARGES
LEARNING OUTCOMES
At the end of this Chapter, you will be able to:

 Define Charge
 Know about Fixed Charge and Floating Charge
 Explain the steps involved in Registration of Charge
 Identify the consequences of non-registration of a Charge and the
steps to be followed for registering Satisfaction of Charge
 Know the applicability of penal provisions in case of default

CHAPTER OVERVIEW
Definition of Charge [Sec 2 (16)]
Duty to Register Charges,etc [Sec 77]
Application for registration of Charge [Sec 78]

CHARGE
Date of Notice of Charge [Sec 80]
Keeping of Register of Charges [Sec 81 & 85]
Satisfaction of Charge [Sec 82 & 83]
Punishment and Rectification in Register of Charges [Sec 86 & Sec 87]
1. INTRODUCTION
Chapter VI Consists of sections 77 to 87 as well as the Companies
(Registration of Charges) Rules, 2014.
Definition of Charge
Loan taken created on the

property or assets of
a company

6.3
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REGISTRATION OF CHARGES
Section 2(16) of the Companies Act, 2013 defines “charge” as an interest or lien
created on the property or assets of a company or any of its undertakings or both
as security and includes a mortgage.
an interest or lien
created on the property or assets
•of a company or
•any of its undertakings or
•both
It is created as Security for repayment of loan
Charge includes Mortgage
Whenever a company borrows money by way of loans including term loans or

working capital loans from financial institutions or banks or any other person by
offering its property or assets as security or any of its undertakings, then a charge
is created on such property or assets in favour of the lender.
Such a charge is compulsorily registrable under the provisions of the Companies

Act, 2013 in accordance with Chapter VI and the Rules made in this regard.

Types of Charge
A charge may be either fixed or floating.
Types of Charge
Fixed Charge Floating Charge
Fixed Charge
A ‘Fixed Charge’ is a charge on specific assets of the borrowing company. These
assets are of permanent nature like land and building, machinery, office premises,
etc. Further, these assets are identified at the time of creation of charge. A fixed
charge is usually created by way of mortgage or by deposit of title deeds.
When a charge is created on such assets, the charge remains ‘fixed’ and the
borrowing company is not permitted to sell such assets during the period of
charge though it may use them.
Assets under fixed charge can be sold only with the permission or consent of the
charge-holder.
A fixed charge is vacated when the money borrowed against the assets subject to
fixed charge is repaid in full.
Example 1: Pearl Electronics Limited raised a term loan ` 10 lakh from Everest
Commercial Bank Limited, against the security of its office building. In this case,
the company shall create a charge on specific asset i.e. its office building and such
charge shall be a fixed charge. The company can sell this particular office building
either by repaying the borrowed amount in full or after seeking permission from
the charge-holder i.e. lender bank.
Floating Charge
A ‘Floating Charge’ is created on assets or a class of assets which are of
fluctuating or changing in nature- like raw material, stock-in-trade, debtors, etc. It
is a charge upon assets both present and future. The assets under floating charge
keep on changing because the borrowing company is permitted to use them for

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trading or producing final goods for sale. Thus, a floating charge is a charge that
floats above ever-changing assets.
Example 2: A retail showroom in Lajpat Nagar, New Delhi contains numerous
articles like clothes, apparels, footwears, kitchen items, cosmetics, etc. kept for
sale. The owner of the showroom might have borrowed against the security of all
these goods; but he may still sell or otherwise deal with them in the ordinary
course of business. The buyer i.e. customer will get the items purchased by him
free of charge.
Example 3: Smart Shoes Limited manufactures leather goods. The raw material in
the form of leather, which is subject matter of floating charge, may be used by
the company to manufacture leather goods without seeking any permission from
the lender.
Thus, unlike a fixed charge, the assets offered as security by the company can be
dealt with by it in the ordinary course of business. The buyer of the asset will get
it free of charge.
Crystallization of a Floating Charge
When the creditor enforces the security due to the breach of terms and
conditions of floating charge or the company goes into liquidation, the floating
charge will become a fixed charge on all the assets available on that date. This is
called crystallization of a floating charge.
A floating charge remains dormant until it becomes fixed or crystallizes. On
crystallization of charge, the security (i.e. raw material, stock-in-trade, etc.)
becomes fixed and is available for realization by the lender so that borrowed
money is repaid. Crystallization of floating charge may occur when the terms and
conditions of floating charge are violated or the company ceases to continue its
business or the company goes into liquidation or the creditors enforce the
security covered by the floating charge.
Example 4: Prism Limited had taken a loan from ABC Bank, on the security of it
stock. Now, in the event of Prism Limited failing to repay the security interest or
entering liquidation, the floating charge will change to a fixed charge. Once a
floating charge gets converted to a fixed charge, the stock can neither be sold nor
used by the company in its business operations.

2. DUTY TO REGISTER CHARGES, ETC.

[SECTION 77]
Section 77 of the Companies Act, 2013 contains provisions regarding registration
of charges with the Registrar of Companies.
A. Registration of Charges
Registration by the company creating a charge: It shall be duty of the
company creating a charge within or outside India, on its property or assets or
any of its undertakings, whether tangible or otherwise and situated in or outside
India, to register the particulars of the charge.
The subject-matter of the charge i.e. the property or assets or any of the
company’s undertakings, may be situated within India or outside India.
Accordingly, charge may be created within India or outside India depending upon
the location of the assets.
The property or assets charged may be tangible assets such as land and buildings,
machinery or financial assets like investment in shares or debentures. It may be
otherwise also, i.e. an intangible asset such as patent, copyright or trademark.
Note: The word ‘otherwise’ when used in a section would have the effect of
widening the scope and operation of the provision.
When a charge is created by deposit of title deeds (normally banks agree for this
mode of charge instead of proper mortgage), it is also registrable by the
borrowing company.1
Registration by the charge-holder: Section 78, Application for registration
of charge (explained later) provides that in case the borrowing company creating
a charge fails to register the charge within the prescribed period of 30 days, the
person in whose favour the charge is created (i.e. lender) can get the charge
registered.
Registration by the purchaser: Section 79 (explained later) covers another case

of registration of charge where a company purchased some property in whose
case a charge was already registered. In this case also, the company purchasing
1
As per Section 58 (f) of the Transfer of Property Act, 1882.

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the property shall get the charge registered in its name in place of seller in the
records of Registrar of Companies.
B. How to Register Charge 2

The particulars of the charge in the prescribed form 3 together with a copy of the
instrument, if any, creating the charge duly signed by the company and the
charge holder, shall be filed with the Registrar within 30 days of creation of
charge along with the prescribed fee.
C. Verification of Instrument of Charge4

A copy of every instrument creating (or modifying) any charge and required to be
filed with the Registrar, shall be verified as follows:
(a) Where the instrument or deed relates solely to the property
situated outside India, the copy shall be verified by a certificate
issued either-
 under the seal, if any, of the company, or
 under the hand of any director or company secretary of the company, or an
authorised officer of the charge-holder, or
 under the hand of some person other than the company who is interested in
the mortgage or charge;
(b) Where the instrument or deed relates to the property
situated in India (whether wholly or partly), the copy shall be
verified by a certificate issued under the hand of any director or
company secretary of the company or an authorised officer of the
charge holder.
Thus, in case the instrument or deed relates solely to a property situated outside
India, the copy may also be additionally verified by a certificate issued under the
hand of some person other than the company who is interested in the mortgage
2
As per Section 77 (1) and Rule 3 (1) of the Companies (Registration of Charges)
Rules, 2014.
3
As per Rule 3, Form CHG-1 or Form CHG-9 (in case of debentures) is to be filled.
4
As per Rule 3 (4).

or charge. This type of verification is not possible when the instrument or deed
relates to the property situated in India, whether wholly or partly.
D. Extension of Time Limit

The original period within which a charge needs to be registered
from the date of creation of charge is 30 days. In respect of
extension of time limit for registration of charges, following
provisions are applicable:
(i) Charges created before 02-11-2018 5: In such cases, where the charge was
created before 02-11-2018 but was not registered within the original period of 30
days, the Registrar may, on an application by the company, allow such
registration to be made within a period of 300 days of such creation.
Further, if the charge is not registered within the extended period of 300 days, it
shall be done within six months from 02-11-2018 on payment of prescribed
additional fees.
It is provided that different fees may be prescribed for different classes of
companies.
Charge Created before 02-11-2018
Register charge within 30 days of creation
If not registered within 30 days
Register within 300 days of creation on payment

of additional fees
If not registered within 300 days
Register within six months from 02-11-2018 with additional fees.

Different fees for different classes of companies are applicable.
5
As per Clause (a) of First Proviso and also Clause (a) of Second Proviso to Section 77 (1).

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(ii) Charges created on or after 02-11-20186: In cases where the charge was
created on or after 02-11-2018 but the registration of charge was not effected
within the original period of 30 days, the Registrar may, on an application by the
company, allow such registration to be made within a period of 60 days of such
creation. In other words, a grace period of another 30 days is granted after the
expiry of the original 30 days, on payment of additional fees as prescribed.
If the charge is not registered within the extended period as above, the company
shall make an application and the Registrar is empowered to allow such
registration to be made within a further period of sixty days after payment of
prescribed ad valorem7 fees.
Charge Created on or after 02-11-2018
Register the charge within 30 days
If not registered within first 30 days
Register in next 30 days (i.e. within 60 days from creation of

charge) with additional fees
If not registered in next 30 days
Register within a further period of sixty days with ad valorem fees
Procedure for Extension of Time Limit8: The company is required to make an

application to the Registrar in the prescribed form 9 for seeking extension of time.
The said application needs to be supported by a declaration from the company
6
As per Clause (b) of First Proviso and also Clause (b) of Second Proviso to Section 77 (1).
7
ad valorem means in proportion to the estimated value of the transaction concerned. In
this case it will be based on value of the charge i.e. the amount of loan advanced against
security of the property.
8
As per Rule 4.
9
As per Rule 4 (2), the application shall be made in Form CHG-1 (for other than
debentures) or in Form CHG-9 (for debentures).

signed by its company secretary or a director that such belated filing shall not
adversely affect the rights of any other intervening creditors of the company.
After receipt of application for extension of time period, the Registrar, on being
satisfied that the company had sufficient cause for not filing the particulars and
instrument of charge, if any, within the original period of thirty days, may allow
registration of charge within the extended time period. Further, requisite
additional fee or ad valorem fee, as applicable, shall also be paid.
E. Issue of Certificate of Registration 10
Where a charge or modification is duly registered by the Registrar of Companies,
a Certificate of Registration/Modification shall be issued by the Registrar in the
prescribed form11. The certificate so issued by the Registrar shall be conclusive
evidence that the requirements of Chapter VI of the Companies Act, 2013 and the
Rules made thereunder as to registration of creation of charge or modification of
charge have been complied with.
F. Section 77 not to apply to certain charges

The application of Section 77 shall not be made to certain charges
which are prescribed in consultation with the Reserve Bank of India. 12
Note: Rule 3 (5) states that nothing contained in Rule 3 shall apply to any charge
required to be created or modified by a banking company under section 77 in
favour of the Reserve Bank of India when any loan or advance has been made to
it under sub-clause (d) of clause (4) of section 17 of the Reserve Bank of India Act,
1934.
3. DEEMED NOTICE OF CHARGE [SECTION 80]

All charges registered with the respective Registrars of Companies are public
documents. It implies that any person who wishes to lend money to the company
against the security of such property or buy it can refer to the Ministry of
10
As per Section 77 (2) and Rule 6.
11
Certificate in Form No. CHG-2 shall be issued for fresh registration of charge (Where a
charge is registered with the Registrar under section 77(1) or section 78) and Certificate in
Form No. CHG-3 shall be issued for modification of charge. (Rule 6)
12
As per Fourth Proviso to Section 77 (1), inserted by the Companies (Amendment) Act,
2017, w.e.f. 7th May 2018.

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Corporate Affairs (MCA) Portal and find out if there is any charge created on that
asset.
It is to be noted that any document filed with the registrar for registration acts as
Constructive Notice. Constructive means ‘implied’ or ‘deemed’. Notice means
“knowledge”. So constructive notice means ‘implied or deemed knowledge’. This
means even though the third party has not referred to the public document, he
would still be considered or deemed to have seen it. This is because a deeming
provision creates a legal fiction.
Accordingly, section 80 of the Companies Act, 2013 states as under:

“where any charge is registered under section 77, any person acquiring such
property, assets, undertakings or part thereof or any share or interest therein shall
be deemed to have notice of the charge from the date of such registration”.
Thus, every person proposing to deal with a company should verify whether the
asset is already under any charge or not by going through the record of charges
maintained at the office of Registrar of Companies before entering into the
transaction.
In case he enters into the transaction without making any enquiry and later on
suffers loss because of charge, then he cannot claim the loss from the company,
for it shall be deemed that he had notice of charge.
It is noteworthy that compulsory registration of charge also acts as a method of
preventing a company from offering the same assets as security to borrow funds
fraudulently from a different lender.
Example 5: Vishnu Marketing Limited obtained a term loan of rupees fifty lakh
from Alpha Commercial Bank Limited by creating a charge on one of its office
buildings and got the charge duly registered. Later on, if the building is sold to
another person, say Neeraj, then he is deemed to have notice of such charge. In
other words, it shall be presumed that Neeraj knew beforehand that the building
was mortgaged to the bank for obtaining a loan. Therefore, Neeraj cannot plead
against such presumption by contending that he did not know about the charge if
he suffers any loss at a later date because of the mortgage.

4. CONSEQUENCES OF NON-REGISTRATION OF
CHARGE [SECTION 77 (3) & (4)]
No charge created by a company shall be taken into account by the liquidator
appointed under the Companies Act, 2013 or the Insolvency and Bankruptcy
Code, 2016 or any other creditor unless it is duly registered and a certificate of
registration of such charge is given by the Registrar. 13
It means that the charge will become void against the liquidator and other
creditors of the company. Simply stated, at the time of winding up, the creditor
whose charge has not been registered will be reduced to the level of an
unsecured creditor. Neither the liquidator nor any other creditor will give legal
recognition to a charge that is not registered.
However, this shall not prejudice any contract or obligation for the repayment of
the money secured by a charge. 14 It implies that the debt is valid and may be
enforced against the company through the courts by filing a suit, but the security
is lost.
Further, it may be noted that failure to register charge shall not absolve a
company from its liability in respect of any offence under Chapter VI.
Another important consequence of non-registration is that the charge-holder
loses priority. Any subsequent registration of a charge (i.e. even if it is registered
within the extended period instead of original thirty days) shall not prejudice any
right acquired in respect of any property before the charge is actually
registered.15.
Example 6: Bank A advanced ` one crore to Vasudha Medicos Limited against the
security of the company’s land and building at Mulund. The charge was created
by deposit of title deeds on 1 st June 2022. The company did not register the
charge within 30 days. Subsequently, the charge was registered on 12th August
2022 after payment of ad valorem fees and providing sufficient cause.
In the meantime, Bank B advanced ` two crore to Vasudha Medicos Limited

against the security of the same property on 18th June 2022. This charge was duly
registered on 26th June 2022.
13
As per Section 77 (3)
14
As per Section 77 (4)
15
As per Third Proviso to Section 77 (1).

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Subsequently, Vasudha Medicos Limited goes into liquidation and the property
realises only ` two crore.
In such a situation, Bank B will get repayment of its loan in full, but Bank A will
not realise anything because subsequent registration of the charge in favour of
Bank A will not prejudice the right of Bank B which obtained its right before the
charge in favour of Bank A was actually registered. Thus, Bank B gets priority over
Bank A even though its charge was created later.
5. APPLICATION FOR REGISTRATION OF

CHARGE BY CHARGE-HOLDER [SECTION 78]
It can be seen from the above discussion that non-registration or delayed
registration would seriously affect the interest of the charge-holder. Therefore,
the law provides the charge-holder an opportunity in this respect. Section 78 of
the Companies Act, 2013, empowers the holder of charge to get the charge
registered in case the company creating the charge on its property fails to do so.
The charge-holder The Registrar shall If objection is

may apply to the give a notice to the received
Registrar company
If company registers by itself

If company fails to If no objection is or sufficient cause why such
do so within 30 days received charge should NOT be
registered is provided
Registrar will register

Company creating charge within a Registrar shall not allow
charge must register period of 14 days registration by charge-
said charge after giving notice to holder
the company
Accordingly, if a charge is created but the company primarily responsible for

registering the charge fails to do so within the prescribed period of 30 days [as
provided in section 77 (1)], the person in whose favour the charge is created (i.e.

charge-holder) may apply to the Registrar for registration of the charge along
with the instrument of charge within the prescribed time, form and manner.
On receipt of application from the charge-holder, the Registrar shall give a notice
to the company and if no objection is received, allow such registration on payment
of the prescribed fees within a period of 14 days after giving notice to the
company.
However, the Registrar shall not allow such registration by the charge-holder, if
the company itself registers the charge or shows sufficient cause why such charge
should not be registered.
Recovery of fees: In case, registration is effected on an application made by the
holder of charge, such person shall be entitled to recover from the company the
amount of any fees or additional fees paid by him to the Registrar for the purpose
of registration of charge.
6. ACQUISITION OF PROPERTY SUBJECT TO

CHARGE AND MODIFICATION OF CHARGE
[SECTION 79]
The provisions of section 77 relating to registration of charges shall, so far as may
be, apply to:
a. a company acquiring any property subject to a charge within the meaning
of that section; or
b. any modification in the terms or conditions or the extent or operation of
any charge registered under that section.
The provisions contained in section 77 relating to registration of charge shall, as
far as may be, apply in both the above situations.
A. Company acquiring any Property subject to Charge [Section 79
(a)]
In case of a property where charge is already registered and if it is sold with the
permission of the holder of charge, it shall be the duty of the company acquiring
it to get the charge registered in accordance with Section 77. In other words, the
earlier charge should get vacated and, in its place, new charge should get
registered by the company which has now acquired the property.

6.15
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B. Modification of Charge when there is Change in Terms and

Conditions, etc. [Section 79 (b)]
Section 79 (b) requires any modification in charge (i.e. change in terms and
conditions or change in extent or operation of any charge, etc.) to be registered
by the company in accordance with section 77.
‘Modification’ includes variation in any of the terms and conditions of the
agreement including change in rate of interest which may be by mutual
agreement or by operation of law. Variation in extent or operation of any charge
is also a kind of modification. Even if the rights of a charge holder are assigned to
a third party, it will be regarded as a modification.
Some examples of ‘modification of charge’ are as under:
1. where the charge is modified by varying any terms and conditions of the
existing charge through an agreement;
2. where the modification is in pursuance of an agreement for enhancing or
decreasing the limits;
3. where the modification is by ceding a pari passu16 charge;
4. where there is change in the rate of interest (other than bank rate);
5. where there is change in repayment schedule of loan (not applicable in case

of working loans which are repayable on demand); and
6. where there is partial release of the charge on a particular asset or property.
Issue of Certificate of Modification
As per Rule 6, where the particulars of modification of charge is registered under
section 79, the Registrar shall issue a certificate of modification of charge in Form
CHG-3.
The certificate so issued by the Registrar shall be conclusive evidence that the
requirements of Chapter VI of the Act and the Rules made thereunder as to
registration of modification of charge have been complied with.
16
A pari passu charge-holder is entitled to a proportionate share in the mortgaged property.
When this is ceded, the charge-holder will become a second charge-holder and as such his
entitlement in the property will be subject to full satisfaction of the claim of the first charge-
holder.

7. REGISTER OF CHARGES
Register of Charges to be kept by the Registrar
Section 81 of the Companies Act, 2013 contains provisions regarding Register of
Charges to be kept by the Registrar.
Section 81 (1) states that the Registrar shall, in respect of every company, keep a
register containing particulars of the charges registered under Chapter VI in the
prescribed form and manner.
In addition, Rule 7 (1) states that the particulars of charges maintained on the
Ministry of Corporate Affairs portal (www.mca.gov.in/MCA21) shall be deemed to
be the register of charges for the purposes of Section 81.
Inspection of Register: According to section 81 (2) such register shall be open to
inspection by any person on payment of such fees as may be prescribed for each
inspection.
Similarly, Rule 7 (2) states that the Register shall be open to inspection by any
person on payment of fee.
Register of Charges to be kept by the company

Section 85 of the Companies Act, 2013 contains provisions regarding Register of
Charges to be kept by a company.
(i) According to section 85 (1):
• Every company shall keep a Register of Charges in the prescribed

form17 and manner at its registered office.
• The Register shall include all charges and floating charges affecting
any property or assets of the company or any of its undertakings,
indicating in each case the prescribed particulars.
(ii) According to Proviso to section 85 (1):
• A copy of the instrument creating the charge shall also be kept at the
registered office along with the Register of Charges.
17
As per Rule 10 (1) the Register of Charges shall be maintained in Form CHG -7.

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(iii) Provisions of Rule 10 are as under:
• According to Rule 10 (1), the company shall enter in the Register

particulars of all the charges registered with the Registrar on any of its
property, assets or undertakings and the particulars of any property
acquired subject to a charge as well as particulars of any modification
of a charge and satisfaction of charge.
• According to Rule 10 (2), the entries in the Register shall be made

forthwith after the creation, modification or satisfaction of charge, as
the case may be.
• According to Rule 10 (3), the entries in the Register shall be

authenticated by a director or the secretary of the company or any
other person authorised by the Board for the purpose.
Inspection of Register of Charges and Instrument of Charges:
As regards inspection, section 85 (2) states that the register of charges and the
instrument of charges shall be open for inspection 18 during business hours:
(a) by any member or creditor without any payment of fees; or
(b) by any other person on payment of prescribed fees. subject to such

reasonable restrictions as the company may, by its articles, impose.
Preservation of Register:
According to Rule 10 (4) the register of charges shall be preserved permanently

and the instrument creating a charge or modification thereon shall be preserved
for a period of eight years from the date of satisfaction of charge.
18
Regarding inspection, Rule 11 states that the Register of Charges and the instrument of
charges kept by the company shall be open for inspection-
(a) by any member or creditor of the company without fees;
(b) by any other person on payment of fee.

8. COMPANY TO REPORT SATISFACTION OF

CHARGE [SECTION 82]
1. Intimation regarding Satisfaction of Charge
Section 82 of the Companies Act, 2013, requires a company to give

intimation of payment or satisfaction 19 in full of any charge earlier
registered, to the Registrar in the prescribed form 20. The intimation needs to
be given within a period of 30 days from the date of such payment or
satisfaction.21
Extended period of intimation: Proviso to Section 82 (1)22 extends the
period of intimation from thirty days to three hundred days. Accordingly, it
is provided that the Registrar may, on an application by the company or the
charge holder, allow such intimation of payment or satisfaction to be made
within a period of three hundred days of such payment or satisfaction on
payment of prescribed additional fees23.
2. Notice to the Holder of Charge by the Registrar24
On receipt of intimation, the Registrar shall cause a notice to be sent to the

holder of the charge calling upon him to show cause within such time as
specified in the notice but not exceeding 14 days, as to why payment or
satisfaction in full should not be recorded.
19
Satisfaction happens when the amount is not repaid but an asset of equal value is
offered in the place of the property being released from charge.
20
As per Rule 8 Form CHG-4 is to be used.
21
(1) In case of a specified IFSC public company, the Registrar may, on an application by the
company, allow such registration to be made within a period of three hundred days of such
creation on payment of such additional fees as may be prescribed (vide Notification No. GSR 8
(E), dated 04-01-2017).
(2) In case of a specified IFSC private company, the Registrar may, on an application by the
company, allow such registration to be made within a period of three hundred days of such
creation on payment of such additional fees as may be prescribed (vide Notification No. GSR 9
(E), dated 04-01-2017).
22
Proviso inserted vide the Companies (Amendment) Act, 2017, w.e.f. 5-7-2018.
23
Rule 8 (1) has been substituted vide the Companies (Registration of Charges),
Amendment Rules, 2018 (w.e.f. 05-07-2018) to provide for giving of intimation within
three hundred days instead of thirty days.
24
As per Section 82 (2).

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If no cause is shown by the charge-holder, the Registrar shall order

entering of a memorandum of satisfaction in the register of charges kept by
him and accordingly, he shall inform the company of having done so.
However, no notice is required to be sent, in case the intimation to the Registrar

in this regard is in the specified form25 and signed by the holder of charge.
If any cause is shown by the charge-holder, the Registrar shall record a

note to that effect in the register of charges and inform the company.
3. Issue of Certificate
As per Rule 8 (2), in case the Registrar enters a memorandum of satisfaction
of charge in full, he shall issue a certificate of registration of satisfaction of
charge in Form No. CHG-5.
4. Preservation of Records 26
The instrument creating a charge or modification thereon shall be preserved
for a period of eight years from the date of satisfaction of charge by the
company.
9. POWER OF REGISTRAR TO MAKE ENTRIES

OF SATISFACTION AND RELEASE IN
ABSENCE OF INTIMATION FROM COMPANY
[SECTION 83]
Section 83 of the Companies Act, 2013 empowers the Registrar to make entries
with respect to the satisfaction and release of charges even if no intimation has
been received by him from the company.
This situation would arise where the property subject to a charge is sold to a
third-party and neither the company nor the charge-holder has intimated the
Registrar regarding satisfaction of the earlier charge.
25
As per Rule 8, Form CHG-4 is required to be filed for this purpose.
26
As per Rule 10 (4).

Accordingly, with respect to any registered charge if evidence is shown to the

satisfaction of Registrar that the debt secured by charge has been paid or
satisfied wholly or in part or that the part of the property or undertaking charged
has been released from the charge or has ceased to form part of the company’s
property or undertaking, then he may enter in the register of charges a
memorandum of satisfaction that:
 the debt has been satisfied in whole or in part; or
 part of the property or undertaking has been released from the charge or
has ceased to form part of the company’s property or undertaking.
This power can be exercised by the Registrar despite the fact that no intimation
has been received by him from the company.
According to Section 82 (4), Section 82 shall not be deemed to affect the powers
of the Registrar to make an entry in the register of charges under section 83 or
otherwise than on receipt of an intimation from the company i.e. even if no
intimation is received by him from the company.
Information to affected parties: According to Section 83 (2), the Registrar shall

inform the affected parties within 30 days of making the entry in the register of
charges.
Issue of Certificate: As per Rule 8 (2), in case the Registrar enters a

memorandum of satisfaction of charge in full, he shall issue a certificate of
registration of satisfaction of charge in Form No. CHG-5.
10. INTIMATION OF APPOINTMENT OF

RECEIVER OR MANAGER [SECTION 84]
Section 84 of the Companies Act, 2013 deals with the appointment of a receiver
or manager and of giving intimation thereof to the company and the Registrar.
Accordingly,
 if any person obtains an order for the appointment of a receiver or a person

to manage the property which is subject to a charge, or

6.21
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 if any person appoints such receiver or person under any power contained
in any instrument,
he shall give notice of such appointment to the company and the Registrar along
with a copy of the order or instrument within 30 days from the passing of the
order or making of the appointment.
In turn, the Registrar shall, on payment of the prescribed fees, register particulars
of the receiver, person or instrument in the register of charges.
On ceasing to hold such appointment 27, the person appointed as above shall give
a notice to that effect to the company and the Registrar. In turn, the Registrar
shall register such notice.
11. PUNISHMENT FOR CONTRAVENTION

[SECTION 86]
(i) According to section 86 (1)28 of the Companies Act, 2013, if any company is
in default in complying with any of the provisions of this Chapter, the
company shall be liable to a penalty of five lakh rupees and every officer of
the company who is in default shall be liable to a penalty of fifty thousand
rupees.
(ii) According to section 86 (2)29, section 447 relating to ‘punishment for fraud’
also becomes applicable in certain cases. Accordingly, if any person wilfully
furnishes:
 any false or incorrect information; or
 knowingly suppresses any material information;
which is required to be registered under section 77, he shall be liable for
action under section 447.
27
As per Rule 9, the notice of appointment or cessation shall be filed with the Registrar in
Form No. CHG-6.
28
Substituted section 86 (1). Substitution was made by the Companies (Amendment) Act,
2020, w.e.f. 21-12-2020.
29
Section 86 (2) was inserted by the Companies (Amendment) Act, 2019 w.r.e.f. 02-11-
2018.

12. RECTIFICATION BY CENTRAL GOVERNMENT

IN REGISTER OF CHARGES [SECTION 87]
Rectification in Register of Charges
Section 8730 of the Companies Act, 2013 and Rule 1231 empowers the Central
Government32 to order rectification of Register of Charges in the following cases
of default:
(i) when there was omission in giving intimation to the Registrar with respect
to payment or satisfaction of charge within the specified time;
(ii) when there was omission or mis-statement of any particulars in any filing
previously made to the Registrar. Such filing may relate to any charge or
any modification of charge or with respect to any memorandum of
satisfaction or other entry made under Section 82 (Company to report
satisfaction of charge) or Section 83 (Power of Registrar to make entries of
satisfaction and release).
Before directing that the ‘time for giving the intimation of payment or satisfaction
shall be extended’ or the ‘omission or mis-statement shall be rectified’, the
Central Government needs to be satisfied that such default was accidental or due
to inadvertence or because of some other sufficient cause or it did not prejudice
the position of creditors or shareholders.
The application in Form CHG-8 shall be filed by the company or any interested
person.
The order of rectification shall be made by the Central Government on such terms
and conditions as it deems just and expedient.
30
As substituted by the Companies (Amendment) Act, 2019 w.r.e.f. 02-11-2018.
31
As substituted by the Companies (Registration of Charges) Amendment Rules, 2019 ,
w.e.f. 30-04-2019.
32
Vide Notification No. S.O. 4090 (E), dated 19-12-2016, powers of the Central
Government with respect to Section 87 stand delegated to the Regional Directors.

6.23
a
“According to Rule 12 of the Companies (Registration of Charges) Rules, 2014:
The Central Government may on an application filed in Form No. CHG-8 in

accordance with section 87-
(a) direct rectification of the omission or misstatement of any particulars, in any

filing, previously recorded with the Registrar with respect to any charge or
modification thereof, or with respect to any memorandum of satisfaction
or other entry made in pursuance of section 82 or section 83,
(b) direct extension of time for satisfaction of charge, if such filing is not made
within a period of three hundred days from the date of such payment or
satisfaction.”
SUMMARY
 “Charge” means an interest or lien created on the property or assets of a
company or any of its undertakings or both as security and includes a
mortgage.
 A charge created by a company is required to be registered with Registrar
within 30 days of its creation.
 A charge may be created within India or outside India.
 In case a charge was created before 02-11-2018 but was not registered
within 30 days, the Registrar may, on an application by the company, allow
registration of charge within 300 days of such creation. In case registration
is not made within the extended period, it shall be made within six months
from 02-11-2018 on payment of prescribed additional fees. Different fees
may be prescribed for different classes of companies.
 In case a charge was created on or after 02-11-2018 but was not
registered within 30 days, the Registrar may, on an application by the
company, allow registration of charge within 60 days of such creation on
payment of prescribed additional fees. If the registration is not made within
the extended period, the Registrar may, on an application, allow such
registration to be made within a further period of sixty days after payment
of prescribed ad valorem fees.

 If a company fails to register the charge, the charge-holder can make an

application for registration of charge and can also recover the amount of
any fees or additional fees paid by him from the company.
 Modification in the terms and conditions, etc. of charge also requires
registration of charge afresh. On recording the particulars of modification of
charge, the Registrar shall issue a certificate of modification of charge.
 Any person acquiring a property which is subject to charge shall be deemed
to have notice of the charge from the date of such registration.
 The Registrar shall, in respect of every company, keep a register containing
particulars of the charges registered under Chapter VI.
 Every company shall keep a Register of Charges at its Registered Office.
 The company shall give intimation to Registrar of payment or satisfaction in
full of any charge within a period of 30 days from the date of such payment
or satisfaction. If no intimation is given within 30 days, the Registrar may
allow such intimation to be made within 300 days of such payment or
satisfaction on payment of prescribed additional fees.
 On receipt of intimation, the registrar shall issue a notice to the holder of
charge calling upon him to show cause within such time not exceeding 14
days as to why payment or satisfaction in full should not be recorded as
intimated to the Registrar. If no cause is shown, the Registrar shall order
recording of memorandum of satisfaction.
 In case intimation of payment or satisfaction in full of charge is in prescribed
form and signed by the holder of charge no notice shall be sent.
 In case, the company fails to send intimation of satisfaction of charge to the
Registrar, the Registrar may enter in the register of charges memorandum
of satisfaction on receipt of evidence to his satisfaction regarding the same.
 Where Registrar enters a memorandum of satisfaction of charge in full, he
shall issue a certificate of registration of satisfaction of charge.
 If a company contravenes any provision relating to the registration of
charges or modification or satisfaction of charges, the company and every
defaulting officer is punishable.
 The Central Government is empowered to order rectification of Register of
Charges in certain cases of default.

6.25
a
TEST YOUR KNOWLEDGE

1. Any person acquiring property, on which charge is registered under section
77, shall be deemed to have notice of the charge from:
(a) the expiry of thirty days of such charge
(b) the date of application for registration of the charge
(c) the date of acquiring the property
(d) the date of such registration
2. A charge was created by Cygnus Softwares Limited on its office premises to
secure a term loan of ` 1 crore availed from Next Gen Commercial Bank
Limited through an instrument of charge executed by both the parties on 16 th
February, 2023. Inadvertently, the company could not get the charge
registered with the concerned Registrar of Companies (ROC) within the first
statutory period permitted by law and the default was made known to it by
the lending banker with a stern warning to take immediate steps for
rectification. The latest date within which the company must register the
charge with the ROC so as to avoid paying ad valorem fees for registration of
the charge is:
(a) 27th April, 2023
(b) 17th April, 2023
(c) 2nd May, 2023
(d) 16th June 2023
3. The instrument creating a charge or modification thereon shall be preserved
for a period of ______ years from the date of satisfaction of charge by the
company.
(a) 5
(b) 7
(c) 8
(d) 15

4. An interest or lien created on the property or assets of a company or any of its

undertakings or both as security is known as:
(a) Debt
(b) Charge
(c) Liability
(d) Hypothecation
5. Who cannot inspect the register of charges and instrument of charges, during
business hours, without paying any fees:
(a) Any member of the company
(b) The Creditor of the company
(c) Persons other than member and creditor of the company
(d) No person is allowed to inspect the register of charges
1. How will a copy of an instrument evidencing creation of charge and required
to be filed with the Registrar be verified?
2. What is ‘Floating Charge’? When does it get crystallised?
3. Define the term “charge” and also explain what is the punishment for default
with respect to registration of charge as per the provisions of the Companies
Act, 2013.
4. Renuka Soaps and Detergents Limited realised on 2nd May, 2022 that
particulars of charge created on 10th March, 2022 in favour of a Sankalp
Commercial Bank Limited were not registered with the Registrar of
Companies. What procedure should the company follow to get the charge
registered? Would the procedure be different if the company realised its
mistake of not registering the charge on 7th June, 2022 instead of 2nd May,
2022? Explain with reference to the relevant provisions of the Companies Act,
2013.
5. Mr. Antriksh purchased a commercial property in Delhi belonging to NRT
Limited after entering into an agreement with the company. At the time of
registration, Mr. Antriksh came to know that the title deed of the company
was not free and the company expressed its inability to get the title deed

6.27
a
transferred in Antriksh’s name contending that he ought to have the

knowledge of charge created on the property of the company. Explain,
whether the contention of NRT Limited is correct?
6. ‘A company is required to keep a Register of Charges at its Registered Office’.
Considering this statement, mention the provisions of the Companies Act,
2013 in respect of keeping of Register of Charges by the companies.
7. ABC Limited created a charge in favour of OK Bank which was duly
registered. Later on, the Bank enhanced the facility by another ` 20 crore. Due
to inadvertence, the modification in the original charge was not registered.
Advise the company as to the course of action to be pursued in this regard.
8. Ranjit acquired a property from PQR Limited which was mortgaged to
Pyramid Bank. He settled the dues to Pyramid Bank in full and the same was
registered with the sub-registrar who noted that the mortgage had been
settled. But neither the company nor Pyramid Bank filed particulars of
satisfaction of charge with the jurisdictional Registrar of Companies. Can
Ranjit approach the Registrar and seek any relief in this regard? Discuss this
matter in the light of provisions of the Companies Act, 2013.
ANSWERS
1. (d) the date of such registration
2. (b) 17th April, 2023
3. (c) 8
4. (b) Charge
5. (c) Persons other than member and creditor of the company

1. A copy of every instrument evidencing any creation or modification of
charge and required to be filed with the Registrar shall be verified as
follows:

(a) in case property is situated outside India: where the instrument or

deed relates solely to the property situated outside India, the copy
shall be verified by a certificate issued either under the seal, if any, of
the company, or under the hand of any director or company secretary
of the company or an authorised officer of the charge holder or under
the hand of some person other than the company who is interested in
the mortgage or charge;
(b) in case property is situated in India (whether wholly or partly):
where the instrument or deed relates to the property situated in India
(whether wholly or partly), the copy shall be verified by a certificate
issued under the hand of any director or company secretary of the
company or an authorised officer of the charge holder.
2. A ‘Floating Charge’ is a type of charge that is created on assets or a class of
assets which are of fluctuating or changing in nature. The assets which are
under floating charge may include raw material, stock-in-trade, debtors, etc.
It is a charge created upon a class of assets both present and future.
The assets under floating charge keep on changing because the borrowing
company is permitted to use them in the ordinary course of business.
The buyers of the assets covered under floating charge will get them free of
charge.
Crystallization of a Floating Charge
In the following events, a floating charge will get crystallised or fixed:
(i) When the creditor enforces the security due to the breach of terms
and conditions of floating charge like there is non-payment of interest
or default in repayment of instalments as per the terms of agreement.
(ii) When the company ceases to continue its business.
(iii) When the borrowing company goes into liquidation.

A floating charge remains dormant until it becomes fixed or crystallised. On
crystallisation of charge, the security (i.e. raw material, stock-in-trade, etc.)
becomes fixed and is available for realization so that borrowed money is
repaid.

6.29
a
3. The term charge has been defined in section 2 (16) of the Companies Act,
2013 as ‘an interest or lien created on the property or assets of a company
or any of its undertakings or both as security and includes a mortgage’.
Punishment for contravention – According to section 86 of the Companies
Act, 2013, if any company is in default in complying with any of the
provisions of Chapter VI, the company shall be liable to a penalty of five
lakh rupees and every officer of the company who is in default shall be
liable to a penalty of fifty thousand rupees.
Further, if any person willfully furnishes any false or incorrect information or

knowingly suppresses any material information which is required to be
registered under section 77, he shall be liable for action under section 447
(punishment for fraud).
4. The charge in the present case was created after 02-11-2018. The relevant
provisions of the Companies Act, 2013 applicable in the present case are as
explained below:
Initially, the prescribed particulars of the charge together with the
instrument of charge, if any, by which the charge is created or evidenced, or
a copy thereof, duly verified by a certificate, are to be filed with the
Registrar within 30 days of its creation. [Section 77 (1)]. In this case
particulars of charge were not filed within the prescribed period of 30 days.
However, the Registrar is empowered under clause (b) of first proviso to
section 77 (1) to extend the original period of 30 days by another 30 days
(i.e. sixty days from the date of creation) on payment of prescribed
additional fee. Taking advantage of this provision, Renuka Soaps and
Detergents Limited should immediately file the particulars of charge with
the jurisdictional Registrar of Companies after satisfying him through
making an application that it had sufficient cause for not filing the
particulars of charge within 30 days of its creation.
If the company realises its mistake of not registering the charge on 7th
June, 2022 instead of 2nd May, 2022, it shall be noted that a period of sixty
days has already expired from the date of creation of charge. However,
Clause (b) of Second Proviso to Section 77 (1) provides another opportunity
for registration of charge by granting a further period of sixty days but the
company is required to pay ad valorem fees. Since the first sixty days from

creation of charge have expired on 9th May, 2022, Renuka Soaps and
Detergents Limited can still get the charge registered within a further period
of sixty days from 9th May, 2022 after paying the prescribed ad valorem fees.
The company is required to make an application to the Registrar in this
respect giving sufficient cause for non-registration of charge.
5. According to section 80 of the Companies Act, 2013, where any charge on
any property or assets of a company or any of its undertakings is registered
under section 77 of the Companies Act, 2013, any person acquiring such
property, assets, undertakings or part thereof or any share or interest
therein shall be deemed to have notice of the charge from the date of
such registration.
Thus, Section 80 clarifies that if any person acquires a property, assets or
undertaking in respect of which a charge is already registered, it would be
deemed that he has complete knowledge of charge from the date of its
registration. Mr. Antriksh, therefore, ought to have been careful while
purchasing property and should have verified beforehand that NRT Limited
had already created a charge on the property.
In view of above, the contention of NRT Limited is correct.

6. In respect of keeping of Register of Charges by a company, Section 85 of
the Companies Act, 2013 and Rules 10 as well as 11 of the Companies
(Registration of Charges) Rules, 2014 are relevant.
(i) According to section 85 (1):
• Every company shall keep a Register of Charges in the
prescribed form and manner at its registered office.
Note: Rule 10 (1) specifies Form CHG-7 in which the Register of
Charges shall be maintained.
• The Register shall include all charges and floating charges
affecting any property or assets of the company or any of its
undertakings, indicating in each case the prescribed particulars.
(ii) According to Proviso to section 85 (1):
• A copy of the instrument creating the charge shall also be kept
at the registered office along with the Register of Charges.

6.31
a
(iii) Provisions of Rule 10 are as under:

• Entry of Particulars of all Charges: According to Rule 10 (1), the
company shall enter in the Register particulars of all the charges
registered with the Registrar on any of its property, assets or
undertakings and the particulars of any property acquired
subject to a charge as well as particulars of any modification of a
charge and satisfaction of charge.
• When to make Entries: According to Rule 10 (2), the entries in the
Register shall be made forthwith after the creation, modification
or satisfaction of charge, as the case may be.
• Who can authenticate Entries: According to Rule 10 (3), the
entries in the Register shall be authenticated by a director or the
secretary of the company or any other person authorised by the
Board for the purpose.
Inspection of Register of Charges and Instrument of Charges: As regards
inspection, section 85 (2) states that the register of charges and the
instrument of charges shall be open for inspection during business hours:
(a) by any member or creditor without any payment of fees; or
(b) by any other person on payment of prescribed fees.
Similarly, regarding inspection, Rule 11 states that the Register of Charges
and the instrument of charges kept by the company shall be open for
inspection-
(a) by any member or creditor of the company without fees;
(b) by any other person on payment of fee.
Preservation of Register: According to Rule 10 (4) the Register of Charges
shall be preserved permanently. However, the instrument creating a charge
or modification thereon shall be preserved for a period of eight years from
the date of satisfaction of charge.
7. ABC Limited is advised to immediately file an application for rectification of
the Register of Charges in Form No. CHG-8 with the Central Government in
accordance with Section 87 of the Companies Act, 2013.

Section 87 and Rule 12 empower the Central Government to order

rectification of Register of Charges in the following cases of default:
(i) when there was omission in giving intimation to the Registrar with
respect to payment or satisfaction of charge within the specified time;
(ii) when there was omission or mis-statement of any particulars in any
filing previously made to the Registrar. Such filing may relate to any
charge or any modification of charge or with respect to any
memorandum of satisfaction or other entry made under Section 82
(Company to report satisfaction of charge) or Section 83 (Power of
Registrar to make entries of satisfaction and release).
Before directing that the ‘time for giving the intimation of payment or
satisfaction shall be extended’ or the ‘omission or mis-statement shall be
rectified’, the Central Government needs to be satisfied that such default
was accidental or due to inadvertence or because of some other sufficient
cause or it was not of a nature to prejudice the position of creditors or
shareholders of the company.
The application in Form CHG-8 shall be filed by the company or any
interested person. Therefore, OK Bank can also proceed under Section 87
as aforesaid.
The order of rectification shall be made by the Central Government on such
terms and conditions as it deems just and expedient.
8. Section 83 of the Companies Act, 2013 empowers the Registrar to make
entries with respect to the satisfaction and release of charge even if no
intimation has been received by him from the company. Accordingly, with
respect to any registered charge if an evidence is shown to the satisfaction
of Registrar that the debt secured by charge has been paid or satisfied in
whole or in part or that the part of the property or undertaking charged has
been released from the charge or has ceased to form part of the company’s
property or undertaking, then he may enter in the register of charges a
memorandum of satisfaction that:
 the debt has been satisfied in whole or in part; or
 the part of the property or undertaking has been released from the
charge or has ceased to form part of the company’s property or
undertaking.

6.33
a
This power can be exercised by the Registrar despite the fact that no
intimation has been received by him from the company.
Information to affected parties: The Registrar shall inform the affected

parties within 30 days of making the entry in the Register of Charges.
Issue of Certificate: As per Rule 8 (2), in case the Registrar enters a
memorandum of satisfaction of charge in full, he shall issue a certificate of
registration of satisfaction of charge in Form No. CHG-5.
Therefore, Ranjit can approach the Registrar and show evidence to his
satisfaction that the charge has been duly settled and satisfied and request
the Registrar to enter a memorandum of satisfaction noting the release of
charge.

ii
material.

publisher.
Basic draft of this publication was prepared by CA. Vandana D Nagpal
ISBN No. : 978-81-962488-9-5

Printed by :

iii
CONTENTS
MODULE 1
MODULE 2
MODULE 3
CHAPTER-12: The Limited Liability Act, 2008

iv
CHAPTER 12: THE LIMITED LIABILTY PARTNERSHIP ACT, 2008
Learning outcomes.... ............................................................................................................ 12.1

Chapter Overview.. ................................................................................................................ 12.2
1. Introduction.......... ..................................................................................................... 12.2
2. Limited Liability Partnership- Meaning and Concept .................................... 12.4
3. Incorporation of LLP ............................................................................................. 12.15
4. Partners and their relations ................................................................................ 12.20
5. Financial Disclosures ............................................................................................ 12.26
6. Assignment and Transfer of Partnership Rights ........................................... 12.31
7. Conversion into LLP .............................................................................................. 12.31
8. Compromise, Arrangement or Reconstruction of Limited Liability
Partnerships ............................................................................................................ 12.33
9. Winding Up and Dissolution ............................................................................. 12.37
10. Miscellaneous ......................................................................................................... 12.38
11. Differences with Other Forms of Organisation……. ...................................... 12.39
Summary ............................................................................................................................... 12.43
Test Your Knowledge ......................................................................................................... 12.45
CHAPTER 1: THE GENERAL CLAUSES ACT, 1897

1. Introduction ................................................................................................................. 1.2
2. Object, purpose and importance of the General Clauses Act........................ 1.3
3. Application of the General Clauses Act ............................................................... 1.4
4. Some basic understandings of legislation ......................................................... 1.6
5. Preliminary ................................................................................................................. 1.10
6. Definitions .................................................................................................................. 1.10

v
7. General rules of construction ............................................................................... 1.22

8. Power and functionaries......................................................................................... 1.27
9. Provision as to orders, rules etc. made under enactments .......................... 1.29
10. Miscellaneous ............................................................................................................ 1.32
Summary .................................................................................................................................. 1.35
CHAPTER 2: INTERPRETATION OF STATUTES

1. Introduction ................................................................................................................. 2.2
2. Why do we need interpretation/construction? .................................................. 2.7
3. Rules of interpretation/construction .................................................................... 2.9
4. Internal aids to interpretation/construction ..................................................... 2.25
5. External aids to interpretation/construction .................................................... 2.34
6. Rules of interpretations/construction of deeds and documents ................ 2.37
Summary .................................................................................................................................. 2.38
CHAPTER 3: THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999

1. Introduction ................................................................................................................ 3.2
2. Preamble, Extent, Application and Commencement of FEMA, 1999 ........... 3.5
3. Definitions .................................................................................................................... 3.5
4. Residential status under FEMA, 1999 .................................................................. 3.9

5. Regulation and Management of Foreign Exchange ....................................... 3.15
Summary .................................................................................................................................. 3.33

CHAPTER a
7
MANAGEMENT AND
ADMINISTRATION
LEARNING OUTCOMES

 Learn about the maintenance of registers and other
documents required to be kept by a company.
 Understand the significance and provisions relating to filing
of Annual Return.
 Know about pre-requisites of holding meetings for
transacting business.
 Explicate provisions governing Quorum and appointment of
proxies.
 Identify the various modes of casting votes.
 Know about the ordinary and special resolution.
 Elucidate provisions in respect of maintenance of Minutes.


CHAPTER OVERVIEW
Registers
Companies Annual Return

(Management &
Administration)
Rules, 2014 Pre-requisites of a
meeting -
Management &
Administration Quorum, Chairman,
Voting
Section 88 - 122 -
Companies Act, 2013 Meetings
Resolutions
Minutes
1. INTRODUCTION
Chapter VII Consists of sections 88 to 122 as well as the Companies

(Management and Administration) Rules, 2014.
A company is an artificial legal entity distinct from its members. The affairs of the
company are managed by the members and directors through resolutions passed
at the validly held meetings. The day-to-day affairs of the company are managed
by the directors who collectively act through Board of Directors. The Board
performs its role within the powers granted to it. Certain powers can be exercised
by the board on its own and some with the consent of the company at the
general meetings. In the capacity as owners of the company, the shareholders
ratify the actions of the board at the general meetings. In a way, the general

MANAGEMENT AND ADMINISTRATION 7.3 a
meetings serve as the focal point for the shareholders to converge and give their
decisions on the actions taken by the directors.
The proceedings of the general meetings are recorded in the ‘minutes book’. On
yearly basis, a company is required to hold its Annual General Meeting to transact
requisite businesses including adoption of financial statements, appointment/re-
appointment of directors and auditors, etc., after the close of the financial year. In
between two AGMs, a company may hold extra-ordinary general meetings (EGM)
also if there is any need to transact certain urgent business. After the conclusion
of AGM, the company is required to prepare Annual Return and file a copy
thereof with the jurisdictional Registrar of Companies. Every company is duty-
bound to maintain register of members, register of debenture-holders and
register of other security holders.
Chapter VII of Companies Act, 2013 deals with the provisions relating to
management and administration of companies. It covers Sections 88 to 122 and is
divided under the following headings–
Registers Annual Return

Sections 88 - 91 & 95 Sections 92 & 94
Management and Administration

Section 88 - 122 of Act read with Companies
(Management & Administration) Rules, 2014
Meetings Requisites of Convening a

Sections 96 - 102 & 121 Meeting
Sections 103 - 120
To initiate, it is imperative that we streamline the understanding of this chapter so

as to link it with the essential concepts along with their procedures which can be
found in the respective rules, i.e. the Companies (Management and Administration)
Rules, 2014 as amended from time to time.

Chapter VII applies to all the companies, public and private, and has special
provisions applicable to One Person Company (OPC), which are enumerated in
section 122 of the Act and are discussed later in this chapter.
2. REGISTERS
The provisions relating to maintaining the various registers as per the Companies
Act, 2013 are contained in Sections 88 – 91. Along with these provisions, the
Companies (Management & Administration) Rules, 2014 are also applicable to the
maintenance of registers by a company. Various provisions relating to keeping
and maintenance of registers are as follows:
- Register of members - Rule 3; Form MGT - 1

- Register of debenture-holders/any other
security-holder - Rule 4; Form MGT - 2
- Maintenance of Registers of members etc.-
Section 88 - Register of Rule 5
Members, etc.
- Index of names of members - Rule 6
- Foreign Register - Rule 7; Form MGT - 3
Section 89 - Rule 9 - Forms MGT-4,

Declaration i.r.o. MGT- 5, MGT-6
Registers
beneficial interest in
any share
Section 90 -
Register of significant
beneficial owners
Rule 10 - Procedure for
Section 91 - Power to closing the register of
members, debenture-
close register of
holders and other
members or debenture
security holders
holders or other
security holders
REGISTER OF MEMBERS, ETC. [SECTION 88]

Section 88 (1) of the Companies Act, 2013 requires that every company shall
keep and maintain the following registers:

(i) Register of Members (holding of each class of equity and preference shares
of each member residing in or outside India shall be shown separately in the
register)
(ii) Register of Debenture-holders (DH); and
(iii) Register of any other security holders (OSH).
Maintenance of Register of Members

(i) Every company limited by shares shall, from the date of its registration,
maintain a register of its members in Form No. MGT-1. [Rule 3 (1)]
However, in case of a company existing on the commencement of the

Companies Act, 2013, the particulars as available in the register of members
maintained under the Companies Act, 1956 shall be transferred to the new
register of members in Form No. MGT-1. In case additional information,
required as per the provisions of the Companies Act, 2013 and the Rules
made thereunder, is provided by the members, such information may also
be added in the register as and when provided. [Proviso to Rule 3 (1)]
(ii) In case of a company not having share capital, the register shall contain the
following particulars, in respect of each member–
 Name of the member, address (registered office address in case the

member is a body corporate); email address; Permanent Account
Number or Corporate Identity Number (‘CIN’); Nationality; in case
member is a minor – name of his guardian and the date of birth of the
member, name and address of the nominee;
 Date of becoming the member;
 Date of cessation;
 Amount of guarantee, if any;
 Any other interest, if any; and
 Instructions, if any, given by the member with regard to sending of
notices, etc. [Rule 3 (2)]
However, in case of a company existing on the commencement of the
Companies Act, 2013, the particulars as available in the register of members
maintained under the Companies Act, 1956 shall be transferred to the new
register of members in Form No. MGT-1. In case additional information,

required as per the provisions of the Companies Act, 2013 and the Rules
made thereunder, is provided by the members, such information may also
be added in the register as and when provided. [Proviso to Rule 3 (2)]
Maintenance of Register of Debenture Holders (DH) or any Other
Security Holders
Every company which issues or allots debentures or any other security shall
maintain a separate register for debenture holders or security holders, as
the case may be, for each type of debentures or other securities in Form
MGT-2. [Rule 4]
Other Requirements applicable to all the Registers

Rule 5 contains certain requirements which are applicable to all types of
registers (i.e. Register of Members, Register of Debenture-holders and
Register of any Other Security Holders). These are stated as under:
 Time period for making entries in Register
As per Rule 5 (1), entries have to be made in the Register within 7 days
of the date of approval by the Board or Committee thereof by
approving the allotment or transfer of shares, debentures or any other
securities, as the case may be.
According to Rule 5 (3), consequent upon any forfeiture, buy-back,
reduction, sub-division, consolidation or cancellation of shares, issue of
sweat equity shares, transmission of shares, shares issued under any
scheme of arrangements, mergers, reconstitution or employees stock
option scheme or any of such scheme provided under this Act or by
issue of duplicate or new share certificates or new debenture or other
security certificates, entry shall be made within seven days after
approval by the Board or committee, in the register of members or in
the respective registers, as the case may be.
 Place of maintaining Register

According to Rule 5 (2), the registers shall be maintained at the
registered office of the company unless a special resolution is passed in
a general meeting authorising the keeping of the register at any other
place within the city, town or village in which the registered office is

situated or any other place in India in which more than 1/10th of the
total members entered in the register of members reside.
 Other information also to be referred in register

❖ In terms of Rule 5 (6), if any order is passed by any judicial or
revenue authority or by Security and Exchange Board of India
(SEBI) or competent authority attaching the shares, debentures
or other securities and giving directions for remittance of
dividend or interest, the necessary reference of such order shall
be indicated in the respective register.
❖ According to Rule 5 (7), in case of companies whose securities
are listed on a stock exchange in or outside India, the particulars
of any pledge, charge, lien or hypothecation created by the
promoters in respect of any securities of the company held by
the promoter including the names of pledgee/pawnee and any
revocation therein shall be entered in the register within fifteen
days from such an event.
❖ According to Rule 5 (8), if promoters of any listed company,
which has formed a joint venture company with another
company have pledged or hypothecated or created charge or
lien in respect of any security of the listed company in
connection with such joint venture company, the particulars of
such pledge, hypothecation, charge and lien shall be entered in
the register members of the listed company within fifteen days
from such an event.
 Updating of change in status of members
Rule 5 (4) states that if any change occurs in the status of a member or
debenture-holder or any other security holder:
- whether due to death or insolvency or change of name or due to
transfer to Investor Education Protection Fund (IEPF) or due to
any other reason,
entries thereof explaining the change shall be made in the respective
registers.

 Rectification in register
According to Rule 5 (5), if any rectification is made in the register
maintained under section 88 by the company pursuant to any order
passed by the competent authority under the Act, the necessary
reference of such order shall be indicated in the respective register.
Index of names
Section 88 (2) provides that every register maintained under section 88 (1) shall
include an index of names included therein. However, according to Rule 6 of the
Companies (Management and Administration) Rules, 2014, the maintenance of
index is not necessary where the number of members is less than 50. Rule 6 also
provides that the company shall make the necessary entries in the index
simultaneously with the entry for allotment or transfer of any security in such
Register.
Register and Index of Beneficial Owners being maintained by a Depository
Section 88 (3) is an enabling provision, which sets out that the register and index
of beneficial owners maintained by a depository under section 11 of the
Depositories Act, 1996, shall be deemed to be the corresponding register and
index for the purposes of this Act.
Foreign Register [Section 88(4) read with rule 7]

◼ Maintenance of Foreign Register:
A company which has share capital or which has issued
debentures or any other security may, if so authorised by its
articles, keep in any country outside India, a part of the register of members
or debenture holders or of any other security holders or of beneficial
owners, resident in that country. The register shall be called “Foreign
Register”.
◼ Other requirements relating to Foreign Register:
In case a company decides to keep a Foreign Register, it shall comply with

the following requirements:
(i) Filing of notice of the situation of the office: Within 30 days from the
date of the opening of any Foreign Register, the company shall file

with the Registrar of Companies, notice of the situation of the office

where such register is kept. The notice shall be filed in Form No. MGT–
3 along with the requisite fee.
(ii) Filing of notice in case of change or discontinuance: In the event of any
change in the situation of such office or of its discontinuance, the
company shall, within 30 days from the date of such change or
discontinuance, as the case may be, file notice in Form No. MGT-3 with
the Registrar of Companies, of such change or discontinuance.
(iii) Foreign Register part of company’s register: A foreign register shall be

deemed to be part of the company’s register (to be called ‘principal
register’) of members or of debenture-holders or of any other security
holders or beneficial owners, as the case may be.
(iv) Format of Foreign Register: The foreign register shall be maintained in
the same format as the principal register.
(v) Inspection, etc. of Foreign Register: A foreign register shall be open to
inspection and may be closed, and extracts may be taken therefrom
and copies thereof may be required, in the same manner, as is
applicable to the principal register. However, advertisement before
closing the register shall be inserted in at least two newspapers
circulating in the place wherein the foreign register is kept.
(vi) Decision of the appropriate competent authority binding in regard to the
rectification: If a foreign register is kept by a company in any country
outside India, the decision of the appropriate competent authority in
regard to the rectification of the register shall be binding.
(vii) Making of Entries in Foreign Register: Entries in the foreign register shall
be made after the Board of Directors or its duly constituted committee
approves the allotment or transfer of shares, debentures or any other
securities, as the case may be.
(viii) Transmission of a copy every entry: The company shall transmit to its
registered office in India, a copy of every entry in any foreign register
within 15 days after the entry is made.

(ix) Keeping of Duplicate Foreign Register at Registered Office: The company

shall keep at the Registered Office a duplicate register of every foreign
register duly updated from time to time.
(x) Duplicate Foreign Register to be part of Principal Register: Every
duplicate foreign register shall be deemed to be the part of the
principal register, for all purposes of the Companies Act.
(xi) Transactions not to be registered in any other Register: No transaction

with respect to any shares or as the case may be, debentures or any
other security, registered in a foreign register shall, during the
continuance of that registration, be registered in any other register.
(xii) Transfer of Entries on discontinuation: The company may discontinue
the keeping of any foreign register and thereupon all entries in that
register shall be transferred to some other foreign register kept by the
company outside India or to the principal register.
Penalty for failure to maintain register in accordance with the provisions of
Section 88(1) and 88(2)
If a company does not maintain a register of members or debenture-holders or
other security holders or fails to maintain them in accordance with the provisions
of sub-section (1) or sub-section (2), the company shall be liable to a penalty of
three lakh rupees and every officer of the company who is in default shall be
Nature of offence
The offence under this section is a compoundable offence under section 441 of
the Act.
Details of Nominations in the register
It is important to note that Form MGT – 1 and MGT – 2 require details of
nomination as referred to in section 72 of the Act, read with Rule 19 of the
Companies (Share Capital and Debentures) Rules, 2014 to be entered in the
register of members and register of debenture-holders or other security holders
as the case may be.

Authentication of entries [Rule 8]

◼ The entries in the registers maintained under section 88 and index included
therein shall be authenticated by the company secretary of the company or
by any other person authorised by the Board for the purpose, and the date
of the board resolution authorising the same shall be mentioned.
◼ The entries in the foreign register shall be authenticated by the company

secretary of the company or person authorised by the Board by appending
his signature to each entry.
Illustration 1
Luxy Hairstylefs Private Limited allotted 500 shares in the name of Mr. Zoey’s
daughter, Mila, who is 4 years old. Mr. Joe, the Director of the Company, has
approached you to advise him on the entries to be made in the register of members,
since Mila is incompetent to contract in her capacity as minor.
Answer: Since minors are not competent to enter into any contract, their names
cannot be entered in the register of members without the details of guardians.
Therefore, Mr. Joe is advised that while filling MGT – 1, the name of a minor shall
be entered only if the details of the guardian are available. Thus, Zoey’s name
shall also appear in the register of members of Luxy Hairstyles Private Limited
since Mila is a minor.
Illustration 2
Tanya and Tarun who recently got married were jointly allotted 1000 shares by
New Hospitality Services Private Limited. Tarun intimated the company that only
the name of his wife should appear in the records of the company in respect of joint
holding of shares allotted to them. The directors of the company are not sure
whether this is possible, given that the shares are held in the names of both Tanya
and Tarun.
Answer: Joint holders of shares may request the company to enter their names in
the register in a certain order, or execute transfers to have their holdings split,
with the result that part of the holding is entered showing the name of one
holder and part showing the name of other holder. However, the condition of
Tarun that only the name of his wife, Tanya, should appear in the register as a
member cannot be acceded to, although the names can be entered in the order
such that the name of his wife appears first. The reason for this is that the articles

of most companies provide that, in the case of exclusion of the other joint
holders, and for this purpose, seniority shall be determined by the order in which
the names stand in the register of members.
DECLARATION IN RESPECT OF BENEFICIAL INTEREST IN ANY SHARE

[SECTION 89]
Section 89 of the Companies Act, 2013 contains provisions relating to declaration
of beneficial interest in any share. Rule 9 of the Companies (Management and
Administration) Rules, 2014 provides for procedural aspect.
Any Person holding

beneficial interest in
the shares of that
company [Section
89(2)]
Member not holding
beneficial interest in Any changes in the
the shares of a beneficial interest
company [Section of persons making
89(1)] declarations
[Section 89(3)]
shall file a
declaration of
beneficial interest
within 30 days
and
company shall also
file a return with
ROC in 30 days
◼ Declaration by registered holder of shares: A person whose name is

entered in the register of members of a company as the holder of shares in
that company but who does not hold the beneficial interest in such shares
(hereinafter referred to as “the registered owner”), shall file with the
company, a declaration to that effect in Form No. MGT-4, specifying the
name and other particulars of the person who holds the beneficial interest in
such shares. The declaration MGT-4 shall be made within a period of thirty
days from the date on which his name is entered in the register of members
of such company. [Section 89 (1) and Rule 9 (1)]

◼ Declaration by person holding beneficial interest in shares: Every person

who holds or acquires a beneficial interest in share of a company shall make
a declaration to the company in form MGT-5, within 30 days after acquiring
such beneficial interest, specifying the nature of his interest, particulars of
the person in whose name the shares stand registered in the books of the
company and such other particulars as may be prescribed. [Section 89 (2)
and Rule 9 (2)]
◼ Declaration in case of change in beneficial interest: Where any change
occurs in the beneficial interest in any shares in respect of which a
declaration has been filed under section 89 (1) by the registered owner and
under section 89 (2) by the beneficial owner then, within 30 days of such
change, a declaration is to be made to the company.
◼ Filing of return by the company with the Registrar: Where any
declaration under section 89 is made to a company, the company shall make
a note of such declaration in the register concerned and shall file, within
thirty days from the date of receipt of declaration by it, a return in Form No.
MGT-6 with the Registrar in respect of such declaration with fee. [Section 89
(6) and Rule 9 (3)]
◼ Consequence of non-filing of declaration: Where a declaration required to
be made under section 89 is not made by the beneficial owner, then, any
right with respect to such shares shall not be enforceable by the beneficial
owner or by any person claiming through him. [Section 89 (8)]
◼ Exemption: Rule 9 shall not apply to a trust which is created to set up a
Mutual Fund or Venture Capital Fund or such other fund as may be approved
by SEBI. Accordingly, such entities need not file the declarations as
envisaged by this rule.
◼ Duty of the Company to pay dividend not affected: Nothing contained in

this section shall be deemed to prejudice the obligation of a company to pay
dividend to its members under this Act and the said obligation shall, on such
payment, stand discharged.
◼ Meaning of beneficial interest: For the purposes of section 89 and section
90, beneficial interest in a share includes, directly or indirectly, through any
contract, arrangement or otherwise, the right or entitlement of a person
alone or together with any other person to—

(i) exercise or cause to be exercised any or all of the rights attached to

such share; or
(ii) receive or participate in any dividend or other distribution in respect
of such share. [Section 89(10)]
Exemption from the provisions of section 89 [Section 89(11)]
The Central Government may, by notification, exempt any class or classes of
persons from complying with any of the requirements of this section, except sub-
section (10), if it is considered necessary to grant such exemption in the public
interest and any such exemption may be granted either unconditionally or subject
to such conditions as may be specified in the notification.
Exemption to a Government Company- In case of Government Company -

Section 89 shall not apply. [Notification No. GSR 463 (E), dated 5th June, 2015]
The above-mentioned exemption shall be applicable to a government company
which has not committed a default in filing its financial statements under section
137 or annual return under section 92 with the Registrar- [Notification No. GSR
582 (E), dated 13 th June, 2017].
Penalty for default [Sections 89 (5) & 89 (7)]

Two kinds of penal provisions as described below are included under section 89 –
(i) Relating to Default made by persons required to make a declaration - If
any person fails to make a declaration as required under sub-section (1) or sub-
section (2) or sub-section (3), he shall be liable to a penalty of fifty thousand
rupees and in case of continuing failure, with a further penalty of two hundred
rupees for each day after the first during which such failure continues, subject to
a maximum of five lakh rupees. [Section 89(5)]
(ii) Relating to Default made by a company - If a company, required to file a
return under sub-section (6), fails to do so before the expiry of the time specified
therein, the company and every officer of the company who is in default shall b e
liable to a penalty of one thousand rupees for each day during which such failure
continues, subject to a maximum of five lakh rupees in the case of a company and
two lakh rupees in case of an officer who is in default. [Section 89(7)]

REGISTER OF SIGNIFICANT BENEFICIAL OWNERS IN A COMPANY

[SECTION 90]
As per Section 90 of the Companies Act, 2013, every Significant Beneficial Owner
(SBO) is required to disclose the nature of his interest and other particulars within
the prescribed period of time to the Company, which in turn will inform the same
to the Registrar of Companies. In this connection, MCA has issued the Companies
(Significant Beneficial Owners) Rules, 2018, which deal with identification and
reporting in connection with SBO.
Definition of Significant Beneficial Owner: The term 'significant beneficial
owner' “SBO” has been defined in section 90 of the Act as every individual, who
acting alone or together, or through one or more persons or trust, including a
trust and persons resident outside India, holds beneficial interests, of not less
than twenty-five per cent. or such other percentage as may be prescribed, in
shares of a company or the right to exercise, or the actual exercising of significant
influence or control as defined in clause (27) of section 2, over the compa ny
(herein referred to as "significant beneficial owner").
However, the Companies (Significant Beneficial Owners) Amendment Rules, 2019
("Amendment Rules") has amended the definition of the term SBO. In terms of
Rule 2(1) (h) of the SBO Rules, the term ‘Significant Beneficial Owner’ (SBO) is
defined as an individual who—
i. acting alone or together, or
ii. through one or more persons or trust, possess one or more of the following
rights or entitlements in the Reporting Company (i.e. the company in
respect of which SBO declaration is required to be filed):
(i) holds indirectly, or together with any direct holdings, not less than
10% of the shares;
(ii) holds indirectly, or together with any direct holdings, not less than
10% of the voting rights in the shares;
(iii) has the right to receive or participate in not less than 10% of the total
distributable dividend, or any other distribution, in a financial year
through indirect holdings alone, or together with any direct holdings;
(iv) has the right to exercise, or actually exercises, significant influence or
control, in any manner other than through direct holdings alone .

In simple terms, SBO is an individual who either alone or together with other
individuals or trust, exercises rights or entitlements in the Reporting Company by
way of holding 10% shares or 10% voting rights or right to receive 10% or more
dividend, both indirect and direct holdings or right taken together or such
individual exercises significant influence or control, indirectly or along with direct
holding in the Reporting Company. The amended Rules further explain that if an
individual does not hold any indirect right or entitlement as mentioned in (i), (ii)
or (iii) above, he will not be considered to be a 'significant beneficial owner'.
Significant influence: The term “significant influence” was previously not defined
specifically for the rules, and hence, to provide clarity, the following definition has
been inserted through SBO rules: “Significant influence” means the power to
participate, directly or indirectly, in the financial and operating policy decisions of
the reporting company but is not control or joint control of those policies. [Rule 2
(1) (i)]
Majority stake: The Amendment Rules inserted a new term, “Majority Stake,”
which means:
(i) holding more than one-half of the equity share capital in the body
corporate; or
(ii) holding more than one-half of the voting rights in the body corporate; or
(iii) having the right to receive or participate in more than one-half of the
distributable dividend or any other distribution by the body corporate. [Rule
2 (1) (d)]
Direct and Indirect shareholding: The Amendment Rules provide that when an
individual holds any rights or entitlement directly in the reporting company, the
said individual shall not be considered as SBO. An individual will be considered to
hold a right or entitlement directly in the Reporting Company, if he satisfies any
of the following criteria:
a. the shares in the Reporting Company representing such right or entitlement

are held in the name of such individual;
b. the individual holds or acquires a beneficial interest in the shares of the
Reporting Company under section 89 (2), and has made a declaration in this
regard to the Reporting Company.

Indirect shareholding is, when a shareholder is a (a) body corporate; (b) Hindu
Undivided Family; (c) Partnership entity; (d) Trust; (e) Pooled investment vehicle.
Onus on the reporting company to identify a SBO and cause him to make
declaration: The duty is on the reporting company to identify a SBO and cause
such SBO to make a declaration in the prescribed Form.
As per sub-section (5) of section 90 read with the Amendment Rules, every
reporting company shall give notice in the Form BEN-4 to any person (whether or
not a member of the company) whom the company knows or has reasonable
cause to believe:
(a) to be a significant beneficial owner of the company;
(b) to be having knowledge of the identity of a significant beneficial owner or
another person likely to have such knowledge; or
(c) to have been a significant beneficial owner of the company at any time
during the three years immediately preceding the date on which the notice
is issued,
and who is not registered as a significant beneficial owner with the company as
required under this section.
Maintenance of Register of SBO and Inspection thereof: According to section

90 (2) and 90 (3) read with Rule 5, every company shall maintain a register of
significant beneficial owners in Form No. BEN-3 which shall be open for
inspection during business hours, at such reasonable time of not less than two
hours, on every working day as the board may decide, by any member of the
company on payment of such fee as may be specified by the company but not
exceeding fifty rupees for each inspection.
Application to the Tribunal [Section 90 (7)]: The company shall,—
(a) Where that person fails to give the company, the information required by
the notice within the time specified therein. (According to Rule 7 notice
shall be given in Form No. BEN-4 for providing information within 30 days
of date of notice); or
(b) Where the information given is not satisfactory,
apply to the Tribunal within a period of fifteen days of the expiry of the period
specified in the notice, for an order directing that the shares in question be

subject to restrictions with regard to transfer of interest, suspension of all rights

attached to the shares and such other matters as may be prescribed.
Note: According to Rule 7, the reporting company shall apply to the Tribunal in
accordance with section 90 (7), for order directing that the shares in question be
subject to restrictions including-
(i) restrictions on the transfer of interest attached to the shares in question;
(ii) suspension of the right to receive dividend or any other distribution in
relation to the shares in question;
(iii) suspension of voting rights in relation to the shares in question;
(iv) any other restriction on all or any of the rights attached with the shares in
question.
Section 90 (8) states that on any application made under sub-section (7), the
Tribunal may, after giving an opportunity of being heard to the parties concerned,
make such order restricting the rights attached with the shares within a period of
sixty days of receipt of application or such other period as may be prescribed.
According to section 90 (9), the company or the person aggrieved by the order of
the Tribunal may make an application to the Tribunal for relaxation or lifting of
the restrictions placed under section 90 (8) within a period of one year from the
date of such order.
Provided that if no such application has been filed within a period of one year
from the date of the order such shares shall be transferred, without any
restrictions, to the authority constituted under sub-section (5) of section 125 (i.e.
Investor Education and Protection Fund Authority), in such manner as may be
prescribed.
Declaration by SBO under Section 90:

As regards declaration of significant beneficial ownership under section 90, Rule 3
of SBO Rules, 2018 states as under:
(1) Every individual who is a significant beneficial owner (SBO) in a Reporting
Company, as on the date of commencement of the Amendment Rules, 2019
(i.e. 8-2-2019), is required to file a declaration in Form No. BEN-1 with the
Reporting Company within 90 days from such commencement.

Note: According to Rule 4, the Reporting Company shall be required to file a

return in Form No. BEN-2 with the Registrar in respect of such declaration
within 30 days of its receipt from the SBO.
(2) Any individual, who subsequently becomes a significant beneficial owner
(SBO) in the Reporting Company or whose significant beneficial ownership
undergoes any change, shall be required to file a declaration in Form No.
BEN-1 with the Reporting Company in within 30 days of such acquisition or
change.
Explanation: If an individual becomes a significant beneficial owner in the

Reporting Company or if his significant beneficial ownership undergoes any
change within ninety days of the commencement of the Companies
(Significant Beneficial Owners) Amendment Rules, 2019 (i.e. 8-2-2019), it
shall be deemed that such individual became the significant beneficial
owner or any change therein happened on the date of expiry of ninety days
from the date of commencement of said rules, and the period of thirty days
for filing will be reckoned accordingly.
Non-Applicability of SBO Rules
Rule 8 of The Companies (Significant Beneficial Owner) Amendment Rules, 2018
states that the ‘SBO’ Rules shall not be made applicable to the extent the share of
the Reporting Company is held by:
(a) the Investor Education and Protection Fund Authority [constituted under
section 125 (5)];
(b) its holding reporting company provided that the details of such holding
reporting company shall be reported in Form No. BEN-2;
(c) the Central Government, State Government or any local authority;
(d) (i) a reporting company or (ii) a body corporate or (iii) an entity, controlled
wholly or partly by the Central Government and/ or State Government(s);
(e) investment vehicles such as mutual funds, alternative investment funds
(AIFs), Real Estate Investment Trusts (REITs) and Infrastructure Investment
Trusts (InVITs) registered with and regulated by the Securities and Exchange
Board of India; and

(f) investment vehicles regulated by Reserve Bank of India, Insurance

Regulatory and Development Authority of India or Pension Fund Regulatory
and Development Authority.
Penalty for Contravention
(a) By SBO: If any person fails to make a declaration as required under sub-
section (1), he shall be liable to a penalty of fifty thousand rupees and in
case of continuing failure, with a further penalty of one thousand rupees for
each day after the first during which such failure continues, subject to a
maximum of two lakh rupees. [Section 90(10)]
(b) By Reporting Company: If a company, required to maintain register under

sub-section (2) and file the information under sub-section (4) or required to
take necessary steps under sub-section (4A), fails to do so or denies
inspection as provided therein, the company shall be liable to a penalty of
one lakh rupees and in case of continuing failure, with a further penalty of
five hundred rupees for each day, after the first during which such failure
continues, subject to a maximum of five lakh rupees and every officer of the
company who is in default shall be liable to a penalty of twenty-five
thousand rupees and in case of continuing failure, with a further penalty of
two hundred rupees for each day, after the first during which such failure
continues, subject to a maximum of one lakh rupees. [Section 90(11)]
It is worth noting that any contravention by Company and Officer in Default of
the provisions of Section 90 and SBO Rules is compoundable.
Note: Where any person wilfully furnishes any false or incorrect information or
suppresses any material information of which he is aware in the declaration made,
he shall be liable for punishment for fraud under section 447. [Section 90(12)]
Exemption to a Government Company- In case of Government Company -

Section 90 shall not apply - Notification No. GSR 463 (E), dated 5th June, 2015.
The above-mentioned exemption shall be applicable to a government company
which has not committed a default in filing its financial statements under section
137 or annual return under section 92 with the Registrar- Notification No. GSR
582 (E), dated 13th June, 2017.

POWER TO CLOSE REGISTER OF MEMBERS OR DEBENTURE-HOLDERS OR

OTHER SECURITY HOLDERS [SECTION 91]
Section 91 (1) deals with the time limits for which the respective registers of
members, debenture-holders and other security holders are allowed to be closed.
Section 91 (2) mentions the penalty for contravention of the provisions of sub-
section (1).
• Time Limits for Closure of

Sec 91 (1)
Registers
Sec 91 (2) • Penalty Provisions
Section 91 (1) contains following provisions:

(i) Closure Period: A company may close its register of members or register of
debenture-holders or register of other security holders for an aggregate
period of 45 days in each year but not exceeding 30 days at any one time.
(ii) Notice Period: The respective registers of members, debenture-holders or

other security holders may be closed by giving minimum 7 days’ notice or
such lesser period as may be specified by Securities Exchange Board of India
(‘SEBI’) for listed companies or those companies which intend to get their
securities listed.
Rule 10 of the Companies (Management & Administration) Rules, 2014,
specifies the manner of closure of registers as under:
(a) A company closing the register of members or the register of
debenture holders or the register of other security holders shall give
at least seven days previous notice and in such manner, as may be
specified by SEBI, if such company is a listed company or intends to
get its securities listed,
 by advertisement at least once in a vernacular newspaper in the

principal vernacular language of the district and having a wide

circulation in the place where the registered office of the

company is situated, and
 at least once in English language in an English newspaper
circulating in that district and having wide circulation in the place
where the registered office of the company is situated, and
 publish the notice on the website as may be notified by the
Central Government and on the website, if any, of the Company.
[Rule 10 (1)]
(b) Exemption to Private Companies: It is to be noted that a private
company has been exempted from issuing a public notice in
newspapers, provided it issues minimum 7 days’ notice to its members
prior to closure of the registers. [Rule 10 (2)]
Section 91 (2) contains penalty provisions as stated below:

In case of contravention of provisions of section 91(1) (i.e. if the respective
registers are closed without giving notice, or after giving a shorter notice than
that so provided, or for a continuous or an aggregate period in excess of the
specified limits), section 91 (2) states following penalty:
◼ the company and every officer of the company who is in default shall be
liable to a penalty of ` 5,000 per day subject to a maximum of ` 1,00,000
during which the register is kept closed.
Note: The offence is a compoundable offence under section 441 of the

3. ANNUAL RETURN [SECTION 92 AND 94]

Provisions with regard to Annual Return are contained in section 92 of the
Companies Act, 2013 and Rules 11 and 12 of the Companies (Management &
Administration) Rules, 2014.
As per Rule 11, every company shall file its annual return in Form No. MGT-7
except One Person Company (OPC) and Small Company.
One Person Company and Small Company shall file the annual return from the
financial year 2020-2021 onwards in Form No. MGT-7A.

Contents of
Annual Return;
Form No. MGT 7;
Form No. MGT 7A
(for OPC and
small company)
Penalty for Signing of Annual

contravention Return
Annual Return
(Section 92 and Rules
11 & 12)
Certification by
Company
Filing of Annual
Secretary in
Return with RoC
Practice, if
required
Placement on
website
Contents of Annual Return

According to section 92(1), every company shall prepare a return (referred to as
the Annual Return) in the prescribed form containing the particulars as they stood
on the close of the financial year regarding—
(a) its registered office, principal business activities, particulars of its holding,
subsidiary and associate companies;
(b) its shares, debentures and other securities and shareholding pattern;
1
(c) [Omitted]
(d) its members and debenture-holders along with changes therein since the
close of the previous financial year;
1Clause (c) of section 92(1) was omitted vide the Companies (Amendment) Act, 2017,
w.e.f. 5 th March, 2021.

(e) its promoters, directors, key managerial personnel along with changes
therein since the close of the previous financial year;
(f) meetings of members or a class thereof, Board and its various committees
along with attendance details;
2
(g) remuneration of directors and key managerial personnel;
(h) penalty or punishment imposed on the company, its directors or officers
and details of compounding of offences and appeals made against such
penalty or punishment;
(i) matters relating to certification of compliances, disclosures as may be
prescribed;
(j) details, as may be prescribed, in respect of shares held by or on behalf of
the Foreign Institutional Investors; and
(k) such other matters as may be prescribed,
Abridged Form of Annual Return

In terms of Second Proviso to Section 91 (1), the Central Government may
prescribe abridged form of annual return for One Person Company, small
company and such other class or classes of companies as may be prescribed.
Accordingly, as per Rule 11 (1) One Person Company and small company shall file
the annual return from the financial year 2020-2021 onwards in Form No.
MGT-7A.
Signing of Annual Return
The annual return shall be signed by a director of the company and the company
secretary; and in case, there is no company secretary, by a company secretary in
practice.
2
In case of Private Company – Clause (g) of sub-section (1) of Section 92 shall apply to
private companies which are small companies, as under:-
(g) “aggregate amount of remuneration drawn by directors;”. - Notification No. GSR 464
(E), dated 5-6-2015, as amended by Notification No. GSR 583 (E), dated 13th June, 2017.

However, in relation to 3One Person Company and small company, the annual
return shall be signed by the company secretary, or where there is no company
secretary, by the director of the company.
Certification of Annual Return by a Company Secretary in practice in certain
cases
Section 92 (2) read with Rule 11 (2) of the Companies (Management &
Administration) Rules, 2014, provides that the annual return, filed by:
(i) a listed company or
(ii) a company having paid-up share capital of ` 10 crore or more or a turnover

of ` 50 crore or more, shall be certified by a Company Secretary in practice
stating that the annual return discloses the facts correctly and adequately
and that the company has complied with all the provisions of the
Such certificate shall be in Form No. MGT – 8.
Placing of Annual Return on Website
4
Every company shall place a copy of the annual return on its website, if any, and
the web-link of such annual return shall be disclosed in the Board's report. [refer
Section 92 (3)]
3
In case of Private Company - For proviso to sub-section (1) of Section 92, the
following proviso shall be substituted, namely:-
"Provided that in relation to One Person Company, small company and private company
(if such private company is a start-up), the annual return shall be signed by the company
secretary, or where there is no company secretary, by the director of the company.".
The above exceptions/ modifications/ adaptations shall be applicable to a private
company which has not committed a default in filing its financial statements under
section 137 or annual return under section 92 with Registrar. [Notification No. GSR 464
(E), dated 5-6-2015, as amended by Notification No. GSR 583 (E), dated 13th June,
2017.Notification Dated 13th June, 2017]
4
(i) In case of Specified IFSC Public Company - Sub-section (3) of section 92 shall not
apply. - Notification No. GSR 8 (E), dated 4th January, 2017.
(ii) In case of Specified IFSC Private Company - Sub-section (3) of section 92 shall not
apply. - Notification GSR 9 (E), dated 4th January, 2017.

Time limit for Filing of Annual Return

A copy of annual return shall be filed with the RoC within 60 days from the date
on which the Annual General Meeting (‘AGM’) is held. Where no annual general
meeting is held in any year, it shall be filed within 60 days from the date on which
the annual general meeting should have been held, along with the reasons for not
holding the AGM. [Section 92 (4) and Rule 12]
Penalty for contravention

(i) Section 92(5) specifies as under:
if any company fails to file its annual return under sub-section (4), before
the expiry of the period specified therein, such company and its every
officer who is in default shall be liable to a penalty of ten thousand rupees
and in case of continuing failure, with further penalty of one hundred
rupees for each day during which such failure continues, subject to a
maximum of two lakh rupees in case of a company and fifty thousand
rupees in case of an officer who is in default.
(ii) Section 92(6) specifies penalty in case of a Company Secretary in Practice as
under:
If a company secretary in practice certifies the annual return otherwise than
in accordance with section 92 or the rules made thereunder, he shall be
liable to a penalty of two lakh rupees.
Illustration 3
Big Fox Entertainment Limited called its Annual General Meeting on 30 th
September, 2021, for laying down the financial statements relating to the Financial
Year ended 31 st March 2021 for approval of its shareholders and conducting of
other requisite businesses. However, due to want of quorum, the meeting could not
take place and was cancelled. The company did not file the annual return for the
year ending 31st March 2021, with the jurisdictional Registrar of Companies till
date. The directors are of the view that since the Annual General Meeting did not
take place, the period of 60 days for filing of annual return is not applicable and
thus, there is no contravention of section 92.
Answer: The contention of directors is incorrect if they are of the view that there
is no contravention of the provisions of the Companies Act, 2013. Section 92 (4)
states that every company has to file an annual return with the RoC within 60
days from the date on which Annual General Meeting is held or where no Annual

General Meeting is held in any year, it shall be filed within 60 days from the date
on which the Annual General Meeting should have been held, along with the
reasons for not holding the AGM.
In the above case, the Annual General Meeting should have been held by 30 th
September, 2021 but it did not take place for want of quorum. Even if it was not
held, Big Fox Entertainment Limited was required to file Annual Return within the
specified time along with the reasons for not holding the AGM. By not filing
Annual Return, the company has contravened the provisions of Section 92 of the
Companies Act, 2013 and therefore, it shall be liable for a penalty as specified in
Section 92 (5) of the Act.
PLACE OF KEEPING AND INSPECTION OF REGISTERS, RETURNS, ETC.

[SECTION 94]5
Registered Office
Place of keeping registers

and returns
Can also be kept at a place in India (other than
registered office) where more than 1/10th of total
members reside, if approved by passing a Special
Resolution
Place of keeping Registers and Returns

In respect of place of keeping Registers and Returns Section 94 (1) and First
Proviso state as under:
(i) At Registered office: The registers required to be kept and maintained by a
company under section 88 and copies of the annual return filed under section
92 shall be kept at the registered office of the company.
(ii) At any other place in India: The registers or copies of return may also be kept
at any other place in India in which more than one-tenth of the total number of
members entered in the register of members reside, if approved by a special
resolution passed at a general meeting of the company.
5 Section 93 was omitted by the Companies (Amendment) Act, 2017 w.e.f. 13-6-2018.

Inspection of Registers, etc.

According to section 94 (2), the registers and their indices, except when they are
closed and the copies of all the returns shall be open for inspection by any
member, debenture holder, other security holder or beneficial owner, during
business hours without payment of any fees and by any other person on payment
of such fees as may be prescribed.
As per Rule 14 (1), the registers and indices maintained pursuant to section 88 and
copies of returns prepared pursuant to section 92, shall be open for inspection
during business hours, at such reasonable time on every working day as the Board
may decide, by any member, debenture holder, other security holder or beneficial
owner without payment of fee and by any other person on payment of such fee as
may be specified in the Articles of Association of the company but not exceeding fifty
rupees for each inspection.
Explanation.- For the purposes of this sub-rule, reasonable time of not less than
two hours on every working day shall be considered by the company.
Extracts of register or index: According to Section 94 (3) read with Rule 14 (2), any
member, debenture-holder or security holder or beneficial owner or any other
person can take the extracts without payment of any fee or can also get copies
thereof with payment of fee not exceeding ` 10 for each page. Such copies or
entries or return shall be supplied within 7 days of deposit of fee.
Provided that such particulars of the register or index or return as may be
prescribed shall not be available for inspection under sub-section (2) or for taking
extracts or copies under this sub-section.
As per Rule 14, Notwithstanding anything contained in sub-rules (1) and (2), the
following particulars of the register or index or return in respect of the members
of a company shall not be made available for any inspection under sub-section (2)
or for taking extracts or copies under sub-section (3) of section 94, namely: —
(i) address or registered address (in case of a body corporate);
(ii) e-mail ID
(iii) Unique Identification Number
(iv) PAN Number

Preservation of Register of Members etc. and Annual Return

As per Second Proviso to Section 94 (1), the period for which the registers, returns
and records are required to be kept shall be such as may be prescribed. In this
respect Rule 15 of the Companies (Management & Administration) Rules, 2014
states as under:
◼ Preservation of register of members: The register of members along with
the index shall be preserved permanently and shall be kept in the custody
of company secretary of the company or any other person authorised by the
Board for such purpose.
◼ Preservation of register of debenture holders/other security holders:

The register of debenture-holder or any other security holder along with the
index shall be preserved for a period of 8 years from the date of redemption
of debentures or securities, as the case may be, and shall be kept in the
custody of the company secretary of the company or any other person
authorized by the Board for such purpose.
◼ Preservation of Copies of documents filed with ROC: Copies of all annual
returns prepared under section 92 and copies of all certificates and
documents required to be annexed thereto shall be preserved for a period of
8 years from the date of filing with the RoC.
◼ Preservation of Foreign Register of Members: The foreign register of
members shall be preserved permanently, unless it is discontinued and all
the entries are transferred to any other foreign register or to the principal
register.
Foreign register of debenture-holders or any other security holders shall be
preserved for a period of 8 years from the date of redemption of such
debentures or securities.
The foreign register shall be kept in the custody of the company secretary
or person authorised by the Board.
Penalty for refusing the inspection or making any extract or copy required –
◼ If any inspection or the making of any extract or copy required under this
section is refused, the company and every officer of the company who is in
default shall be liable for each such default, to a penalty of ` 1, 000 for every

day subject to a maximum of ` 1, 00,000 during which the refusal or default

continues. [Section 94 (4)]
◼ The Central Government* may also, by order, direct an immediate inspection
of the document, or direct that the extract required shall forthwith be
allowed to be taken by the person requiring it. [Section 94 (5)]
* Powers are delegated to Regional Directors.
REGISTERS, ETC. TO BE EVIDENCE [SECTION 95]
According to Section 95, the registers, indices and copies of annual return shall be prima
facie evidence of any matter directed or authorised to be inserted therein by or under
this Act.
4. PRE-REQUISITES OF A MEETING
Before we move on to our next concept of types of meetings and the procedure
to convene them as per the Companies Act, 2013, let us understand the terms
which are important to know for convening a meeting.
During Meeting • Minutes of

Meeting -
•- Notice of
Section 118
meeting -
Section 101 • Inspection of
•Quorum for minute-books of
- Explanatory meetings - Section GM - Section
Statement to be 103 119
annexed with •Chairman of
notice - Section • Maintenance &
meetings - Section inspection of
102 104 documents in
•Proxies - Section 105 e-form - Section
Before Meeting
•Voting - Sections 120
106 - 110
•Resolutions -
Sections 111, 114 - Post - Meeting
117

Key terms:
(a) General Meeting: It is the meeting of the shareholders of a
company to be held as per the provisions of the Act. The
general meeting can be an Annual General Meeting (AGM)
or an Extraordinary General Meeting (EGM). An annual
general meeting (AGM) is a mandatory yearly gathering of a
company's shareholders. The objective of holding an AGM is to provide an
opportunity to members to discuss the functioning of the company and
take steps to protect their interests. They can discuss any matter relating to
the conduct of the affairs of the company. An Extraordinary General
Meeting (EGM) can be defined as a meeting of shareholders which is not an
AGM. The objective of holding an EGM is to discuss any matter of urgent
importance which cannot be postponed till the next Annual General
Meeting.
(b) Board Meeting: It is the meeting of the Board of Directors of

a company.
(c) Class Meeting: It is the meeting of particular class of
persons, like, creditors, preference shareholders, debenture-
holders, etc.
The pre-requisites of the meetings are, in general, applicable to all kinds of
meetings, although the time limits may differ and there might be a specific
mention of a certain type of meeting in the respective section.
NOTICE OF A MEETING [ SECTION 101]

Section 101 (1) of the Companies Act, 2013 states that in order to properly call a
general meeting, a notice of at least 21 clear days is required to be given either in
writing or through electronic mode in such manner as may be prescribed.
In case of Specified IFSC Public Company - Section 101 shall apply in case of a
Specified IFSC public company, unless otherwise specified in the articles of the
company. [Notification No. GSR 8 (E), dated 4th January, 2017.]
In case of section 8 company, in clause (1) of Sub-section (1) of Section 101 for
the words "21 days", the words "14 days" shall be substituted. This exception shall
be applicable to a section 8 company which has not committed a default in filing

its financial statements under section 137 or annual return under section 92 with
the Registrar. [Notification No. GSR 466 (E), 5-6-2015 as amended by Notification
No. GSR 584 (E), dated 13th June, 2017.]
Contents of the Notice [Section 101(2)]

Every notice of a meeting must state the place, date, day and the hour of the
meeting and shall contain a statement of business to be transacted at that
meeting.
Persons entitled to receive the Notice of the General Meeting [Section
101(3)]
The notice of every meeting of the company shall be given to:
(a) every member of the company, legal representative of any deceased
member or the assignee of insolvent member;
(b) the auditor or auditors of the company;

(c) every director of the company.
* Members
* Legal representative of the deceased member
Notice needs to be * Assignee of the insolvent member
served to * Auditor/auditors of the company
* Every director of the company
Meaning of 21 clear days:

The term ‘21 clear days’ means that the date on which notice is served and the
date of meeting are excluded while sending the notice of a meeting. A company
cannot curtail the requirement of 21 clear days through its Articles of Association.
Note: Where a notice of a meeting is sent by post, it shall be deemed to be

served at the expiration of 48 hours after the letter containing the same is posted
(Rule 35(6) of the Companies (Incorporation) Rules, 2014)

Sending of Notice of Meeting through Electronic Mode:

As per Rule 18 of the Companies (Management & Administration) Rules, 2014 ,
sending of notices through electronic mode has been statutorily recognized.
Accordingly, it is permitted for a company to give notice through electronic
mode.
The expression ‘‘electronic mode’’ shall mean any communication sent by a
company through its authorized and secured computer programme which is
capable of producing confirmation and keeping record of such communication
addressed to the person entitled to receive such communication at the last
electronic mail address provided by the member.
◼ A notice may be sent through e-mail as a–
 Text; or
 As an attachment to e-mail; or
 As a notification providing electronic link; or
 Uniform Resource Locator for accessing such notice.
◼ Rule 18(3)
 The e-mail shall be addressed to the person entitled to receive such
e-mail as per the records of the company as provided by the
depository.
It is to be noted that the company shall provide an advance
opportunity at least once in a financial year, to the member to register
his e-mail address and the changes therein and such request may be
made by only those members who have not got their e-mail ID
recorded or to update a fresh e-mail ID and not from the members
whose e-mail ids are already registered.
 The subject line in e-mail shall state the name of the company, notice
of the type of meeting, place and the date on which the meeting is
scheduled.
 If notice is sent in the form of a non-editable attachment to e-mail,
such attachment shall be in the Portable Document Format or in a

non-editable format together with a ‘link or instructions’ for recipient

for downloading relevant version of the software.
 The company’s obligation shall be satisfied when it transmits the e-
mail and the company shall not be held responsible for a failure in
transmission beyond its control.
 If a member entitled to receive notice fails to provide or update
relevant e-mail address to the company, or to the depository
participant as the case may be, the company shall not be in default for
not delivering notice via e-mail.
 The company may send e-mail through in-house facility or its registrar
and transfer agent or authorise any third-party agency providing bulk
e-mail facility.
 The notice shall be placed simultaneously on the website of the

Company, if any, and on the website as may be notified by Central
Government.
Non-receipt of Notice: According to Section 101(4) any accidental omission to
give notice to or the non-receipt of such notice by, any member or other person
who is entitled to such notice for any meeting shall not invalidate the
proceedings of the meeting. The onus is on the company to prove that the
omission was not deliberate.
Illustration 4
Mr. Abhinav, a member of Elixir Logistics Limited, filed a complaint against the
company for not serving him a notice for attending the Annual General Meeting.
The company, in turn, provided the proof that they had sent the notice, by way of
an email to Mr. Abhinav, inviting him to attend the annual general meeting of the
company. Mr. Abhinav alleges that he never received the email. State whether the
company is liable to be guilty for contravening the provisions of section 101 of the
Companies Act, 2013 read with the applicable Rules.
Answer: As per Rule 18 (3) (v) of the Companies (Management & Administration)
Rules, 2014, the company’s obligation shall be satisfied when it transmits the e-
mail and the company shall not be held responsible for a failure in transmission
beyond its control. Also, Rule 18 (3) (vi) if a member entitled to receive the notice
fails to provide or update relevant e-mail address to the company, or to the

depository participant as the case may be, the company shall not be in default for
not delivering notice via e-mail. Accordingly, Elixir Logistics Limited shall not be
held guilty if there was a failure in transmission beyond its control or in case
where Mr. Abhinav did not update his e-mail address.
Shorter notice of less than 21 days [Proviso to Section 101 (1)]

As noted earlier, usually general meetings need to be called by giving at least a
notice of 21 clear days.
However, a general meeting may be called after giving shorter notice than that
specified in sub-section (1) of Section 101, if consent, in writing or by electronic
mode, is accorded thereto—
(i) in the case of an annual general meeting, by not less than ninety-five per
cent. of the members entitled to vote thereat; and
(ii) in the case of any other general meeting, by members of the company—
(a) holding, if the company has a share capital, majority in number of

members entitled to vote and who represent not less than ninety-five
per cent. of such part of the paid-up share capital of the company as
gives a right to vote at the meeting; or
(b) having, if the company has no share capital, not less than ninety-five
per cent. of the total voting power exercisable at that meeting.
Where any member of a company is entitled to vote only on some resolution or

resolutions to be moved at a meeting and not on the others, those members shall
be taken into account for the purposes of sub section (1) of section 101 in respect
of the former resolution or resolutions and not in respect of the latter.
Illustration 5
The paid-up share capital of Aakash Soaps Limited is Rs. fifty lakh divided into five
lakh shares of `10 each. The directors of the company are desirous of calling an
extra-ordinary general meeting (EGM) by giving a shorter notice which is less than
21 days. Sixty percent of the members holding shares worth Rs. forty lakh accorded
their consent by electronic mode to the shorter notice. Whether EGM can be validly
called.

Answer: In the above case, consent to call the EGM by shorter notice has been
accorded by sixty percent members holding shares worth Rs. forty lakh which works
out to 80% (40,00,000/50,00,000 *100) whereas the requirement is that majority in
number of members who represent not less than 95% of paid-up share capital
which gives them a right to vote at the meeting (i.e. shareholders holding shares
worth ` 47,50,000) must consent to shorter notice. Therefore, the EGM cannot be
validly called and held.
Authority to call a General Meeting
A general meeting (AGM or EGM) has to be called by the Board of Directors. An

individual director does not have the authority to call a General Meeting. Any
notice of General Meeting given without the sanction of the Board is invalid;
however, the same can be ratified by the Board. For calling a General Meeting, the
Board passes a Board Resolution.
EXPLANATORY STATEMENT TO BE ANNEXED TO NOTICE [SECTION 102]6

Section 102 of the Companies Act, 2013 mentions that where any special business is
to be transacted at the company’s general meeting, then an ‘Explanatory Statement’
shall be annexed to the notice calling such general meeting. The ‘Explanatory
Statement’ must specify,
(a) the nature of concern or interest, financial or otherwise, if any, in respect of
each items of—
(i) every director and the manager, if any;
(ii) every other key managerial personnel; and
(iii) relatives of the persons mentioned in sub-clauses (i) and (ii);
(b) any other information and facts that may enable members to understand
the meaning, scope and implications of the items of business and to take
decision thereon.
Ordinary business and Special business: Companies Act, 2013 sets out two
types of businesses as under:
6
Specified IFSC public company, unless otherwise specified in the articles of the company.
Notification GSR 8 (E), Dated 4th January, 2017.

◼ Ordinary business (OB)

◼ Special business. (SB)
Ordinary business includes the following business which are transacted at the
Annual General Meeting of a company–
(i) the consideration of financial statements and the reports of the Board of
Directors and auditors;
(ii) the declaration of any dividend;
(iii) the appointment of directors in place of those retiring;
(iv) the appointment of, and the fixing of the remuneration of, the auditors.
1.
Consideration of financial
statements and the reports of
the Board of Directors and
auditors
4.
Ordinary 2.
Appointment of,
and fixing of the business Declaration
remuneration of, of any
Section 102 (2) dividend
the auditors
3.
Appointment of
Directors in place of
those retiring
◼ In the case of AGM, all business to be transacted thereat except the ones
stated above are special business. At the EGM, every business transacted is
a special business. Explanatory statement is not required for transacting
Ordinary Business.
◼ Proviso to section 102 (2) sets out that if any item of special business relates
to, or affects, any other company, the extent of shareholding in that other
company of every promoter, director, manager and of every other KMP shall
be disclosed, if the extent of shareholding is 2% or more of the paid-up
share capital of that other company.
◼ In case any item of business refers to any document which is to be
considered at the meeting, then the time and place where such document
can be inspected should also be specified in the explanatory statement.

◼ Effect of non-disclosure/insufficient disclosure in Explanatory

Statement [Section 102(4)]: If as a result of non-disclosure or insufficient
disclosure in explanatory statement, any benefit accrues to a promoter,
director, manager, other key managerial personnel or their relatives, such
person shall hold such benefit in trust for the company, and shall, without
prejudice to any other action being taken against him under this Act or
under any other law for the time being in force, be liable to compensate the
company to the extent of the benefit received by him.
Penalty for contravention of the provisions of section 102
Without prejudice to the provisions of sub-section (4), if any default is made in
complying with the provisions of this section, every promoter, director, manager
or other key managerial personnel of the company who is in default shall be
liable to a penalty of fifty thousand rupees or five times the amount of benefit
accruing to the promoter, director, manager or other key managerial personnel or
any of his relatives, whichever is higher. [Section 102 (5)]
QUORUM FOR MEETINGS [SECTION 103]7

Quorum means the minimum number of members who must be personally
present in order to constitute a valid meeting. Section 103 of the Companies Act,
2013 states that unless the articles of the company provide for a larger number,
the quorum for the meeting shall be as follows–
Public Company - Private Company -
If number of members is not more than

1000, quorum shall be 5 members Two members personally
personally present. present shall be the Quorum.
if the number of members is more than
1000 but upto 5000, then the quorum shall
be 15 members personally present
If the number of members exceed 5000,
then quorum shall be 30 members
personally present.
7
company. Notification No. GSR 8 (E), Date 4th January, 2017.

◼ It is to be noted that the term ‘members personally present’ as mentioned

above refers to the members entitled to vote in respect of the items of
business on the agenda of the meeting.
Adjournment of Meeting for want of Quorum [Section 103 (2) and (3)]
If the quorum is not present within half-an-hour from the time appointed for
holding a meeting of the company—
(a) the meeting shall stand adjourned to the same day in the next week at the
same time and place, or to such other date and such other time and place
as the Board may determine; or
(b) the meeting, if called by requisitionists under section 100, shall stand
cancelled:
Provided that in case of an adjourned meeting or of a change of day, time or
place of meeting under clause (a), the company shall give not less than three
days’ notice to the members either individually or by publishing an advertisement
in the newspapers (one in English and one in vernacular language) which is in
circulation at the place where the registered office of the company is situated.
Quorum not present at the adjourned meeting also: Where quorum is not present
in the adjourned meeting also within half an hour, then the members present
shall form the quorum.
Note:
The following points have been prescribed by Secretarial Standard – 2:
1. One person can be an authorised representative of more than one body
corporate. In such a case, he is treated as more than one Member present in
person for the purpose of Quorum. However, to constitute a meeting, at
least two individuals shall be present in person. Thus, in case of a public
company having not more than one thousand members with a Quorum
requirement of five members, an authorised representative of five bodies
corporate cannot form a Quorum by himself but can do so if at least one
more member is personally present.
2. Quorum shall be present not only at the time of commencement of the
Meeting but also while transacting business.

3. Members who have voted by Remote e-voting have the right to attend the
General Meeting and accordingly their presence shall be counted for the
purpose of Quorum.
4. A Member who is not entitled to vote on any particular item of business
being a related party, if present, shall be counted for the purpose of
Quorum.
5. The stipulation regarding the presence of a Quorum does not apply with
respect to items of business transacted through postal ballot.
Illustration 6
There are 54 members in Nice Games Private Limited. The company called its
annual general meeting on Friday, 1st July 2022 at 2:00 p.m. at its registered office.
There were 28 members present till 2:30 p.m. at the venue of the AGM. The
Chairman of the meeting proceeded to initiate the meeting and passed the
resolutions after observing due process. Comment whether the meeting took place
as per the provisions of Companies Act, 2013.
Answer: As per the provisions of Section 103 of the Companies Act, 2013, the
quorum for a Private Limited Company shall be two members personally present,
within half-an-hour from the time appointed for holding a general meeting of the
company. Thus, the quorum for the Annual General Meeting of Nice Games
Private Limited was complied with and the company has not contravened any of
the provisions of the Companies Act, 2013.
Illustration 7
Abbey Lights and Sounds Limited has 2300 members. The company called its
Annual General Meeting on Tuesday, 23rd August, 2022 at 10.30 a.m. at its
registered office situated in Connaught Place, New Delhi. On the day of the
meeting, 18 members were personally present by 11.00 a.m. and the Chairman
proceeded to initiate the Annual General Meeting. There were 5 special businesses
to be discussed at the said meeting and by 2.30 p.m. Agenda 1 to 3 had been
discussed and appropriate resolutions were passed. However, due to some
emergency, 4 of the members had to leave around 3 p.m. The Chairman granted
them the permission and proceeded to discuss Agenda 4 and 5 and accordingly
passed resolutions as per the consent of the remaining members. Comment whether

the meeting is a properly convened meeting as per the provisions of section 103 of
Answer: According to Secretarial Standard - 2 (SS-2), Quorum shall be present
not only at the time of commencement of the Meeting but also while transacting
business.
In the above case, while the required quorum as per section 103 of the
Companies Act, 2013 was present at the time when the meeting started, the
quorum was not present at the time of deciding Agenda 4 and 5. Thus, where at
the time of transacting business, the number of members is less than the quorum
fixed for the meeting, the business cannot be transacted and shall be a nullity.
CHAIRMAN OF MEETING [SECTION 104]8

Election of Chairman by Members: Section 104 of the Companies Act, 2013
seeks to provide that unless the Articles of Association of the Company otherwise
provide, the members, personally present, shall elect among themselves to be the
Chairman on a show of hands.
Demand for Poll: The section further provides that if a poll is demanded on the
election of the Chairman, the Chairman elected by show of hands shall continue to
be the Chairman of the meeting until some other person is elected as Chairman as a
result of poll, and such other elected person shall be the Chairman for rest of the
meeting.
Powers of Chairman: Chairman of the meeting is the person who manages the
meetings and ensures that the required decorum of the meeting is maintained at
all times, till the meeting is concluded and post that, executes the minutes of the
meeting. The Chairman has prima facie authority to decide all questions which
arise at a meeting and which require decision at that time. In order to fulfil his
duty properly, he must observe strict impartiality.
Chairman to have ‘casting vote’ if so provided in the Articles: The Chairman

has a casting vote in Board Meetings and general meetings, if specifically
empowered by the articles of the company. The term ‘casting vote’ means that in
8
In case of Specified IFSC Public Company - Section 104 shall apply in case of
a Specified IFSC public company, unless otherwise specified in the articles of the
company. Notification No. GSR 8 (E), Dated 4th January, 2017.

the event of equality of vote on a particular business being transacted at the

meeting, the Chairman of the meeting shall have a right to cast a second vote. If
there is no provision in the articles for a casting vote, an ordinary resolution on
which there is equality of votes is deemed to be dropped.
Exemption to a Private Company- In case of a private company - Section 104

shall apply, unless otherwise specified in respective section or the articles of the
company provide otherwise. - Notification No. GSR 464 (E), dated 5th June, 2015.
This exception shall be applicable to a private company which has not committed
a default in filing its financial statements under section 137 or annual return
under section 92 of the Act, with the Registrar. - Notification No. GSR 583 (E),
dated 13th June 2017.
5. PROXIES [SECTION 105]9

Section 105 of the Companies Act, 2013 and Rule 19 of the Companies
(Management & Administration) Rules, 2014 contain provisions relating to the
proxies.
◼ Appointment of a proxy is an important right of a member of the company.
Section 105 (1) provides that any member of a company who is entitled to
attend and vote at a meeting of the company shall be entitled to appoint
another person as a proxy to attend and vote at the meeting on his behalf.
However, a proxy shall not have the right to speak at such meeting and shall
not be entitled to vote except on a poll.
◼ Applicability of the sub-section (1) – Unless the articles of a company
otherwise provide, this sub-section shall not apply to a company not having
a share capital. The Central Government may also prescribe a class or classes
of companies whose members shall not be entitled to appoint another
person as a proxy.
9
Specified IFSC public company, unless otherwise specified in the articles of the company.
Notification No. GSR 8 (E), Dated 4th January, 2017.

According to Rule 19, a member of a company registered under section 8

(companies formed with charitable objects, etc.) shall not be entitled to
appoint any other person as his proxy unless such other person is also a
member of such company.
A person can act as proxy on behalf of members not exceeding fifty and
holding in aggregate not more than 10 per cent of the total share capital of
the company carrying voting rights.
However, a member who is holding more than 10 per cent of the total share
capital of the company carrying voting rights may appoint a single person as
a proxy and such person shall not act as proxy for any other person or
shareholder. [Rule 19 (2)]
◼ As a compliance requirement, in every notice calling a meeting of a company

which has a share capital, or the articles of which provide for voting by proxy
at the meeting, there shall appear with reasonable prominence a statement
that a member entitled to attend and vote is entitled to appoint a proxy, or,
where that is allowed, one or more proxies, to attend and vote instead of
himself, and that a proxy need not be a member. [Section 105 (2)]
◼ The appointment of proxy shall be in Form No. MGT-11. [Rule 19(3)]
◼ If the instrument appointing a proxy is in the prescribed Form, it shall not be

questioned on the ground that it fails to comply with any special
requirements specified for such instrument by the articles of a company.
[Section 105 (7)]
◼ The instrument appointing a proxy shall be in writing and signed by the

appointer or his attorney duly authorised in writing. If the appointer is a body
corporate, the instrument shall be under its seal or be signed by an officer or
an attorney duly authorised by the body corporate. [Section 105 (6)]
◼ Section 105 (4) provides that a proxy received 48 hours before the meeting
will be valid even if the articles provide for a longer period.
◼ Section 105 (8) provides that every member entitled to vote at a meeting of
the company, or on any resolution to be moved thereat, shall be entitled
during the period beginning twenty-four hours before the time fixed for the

commencement of the meeting and ending with the conclusion of the

meeting, to inspect the proxies lodged, at any time during the business
hours of the company, provided not less than three days' notice in writing of
the intention so to inspect is given to the company.
In simple words, it can be said that:

- every member entitled to vote at a meeting of the company, or on any
resolution to be moved thereat, shall be entitled to inspect the proxies
lodged.
- for the purpose of inspection, a minimum three days’ notice in writing is

required to be given to the company.
- inspection by any member can be made during the period beginning
twenty-four hours before the time fixed for the commencement of the
meeting and ending with the conclusion of the meeting.
- inspection can be done at any time but only during the business hours of
the company.
◼ Penalty for default–

 If default is made in complying with section 105 (2), every officer of the
company who is in default shall be liable to penalty of five thousand
rupees. [Section 105(3)]
 If for the purpose of any meeting of a company, invitations to appoint
as proxy a person or one of a number of persons specified in the
invitations are issued at the company's expense to any member
entitled to have a notice of the meeting sent to him and to vote
thereat by proxy, every officer of the company who issues the
invitation as aforesaid or authorises or permits their issue, shall be
Provided that an officer shall not be liable under this sub-section by
reason only of the issue to a member at his request in writing of a
form of appointment naming the proxy, or of a list of persons willing
to act as proxies, if the form or list is available on request in writing to
every member entitled to vote at the meeting by proxy. [Section
105(5)]

6. VOTING [SECTION 106-109]

The votes cast by the shareholders play decisive role in the business proposed in
General Meetings of a company.
An equity shareholder has the right to vote for every motion. However, as per the
Section 47 of the Companies Act, 2013 preference shareholder is entitled to vote
only for a resolution pertaining to his rights.
The various modes through which a shareholder can cast his vote are as follows:
 Voting by show of hands – (section 107);
 Voting by electronic means – (section 108);
 Voting by demand of poll – (section 109);
 Voting by Postal Ballot – (section 110).
Voting by
show of hands
(Section 107)
Voting by
electronic
means (Section
108)
Voting
Voting by Poll
(Section 109)
Voting by
Postal Ballot
(Section 110)
The right to vote is a personal right of a shareholder and he may use it as he likes
it. He may split his vote for and against the resolution.

RESTRICTION ON VOTING RIGHTS [SECTION – 106]10

Section 106 (1) indicates the supremacy of Articles of Association and specifies
that the Articles of a company may provide that:
- no member shall exercise any voting right in respect of any share registered
in his name on which any amount is due from him on calls or any other
sums presently payable by him to the company have not been paid, or
- in regard to which the company has exercised any right of lien.
Section 106 (2) requires that a company shall not prohibit any member from
exercising his voting rights on any other ground except the grounds mentioned as
above.
On a poll taken at a meeting of a company, a member entitled to more than one

vote, or his proxy, where allowed, or other person entitled to vote for him, as the
case may be, need not, if he votes, use all his votes or cast in the same way all the
votes he uses. [Section 106 (3)]
In other words, on a poll being taken at a meeting of a company, a member

having more than one vote or his proxy, need not use all his votes or cast in the
same way all the votes he uses.
Also, such member cannot sign a requisition for an extra-ordinary general

meeting.
In case of joint shareholders, they must concur in voting unless the articles
provide to the contrary. Regulation 52 of Table F states as under:
(i) In the case of joint holders, the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders.
(ii) For this purpose, seniority shall be determined by the order in which the
names stand in the register of members.
10
company. Notification No. GSR 8(E), Dated 4th January, 2017.

Note:
Where the articles of the company do not contain any provision restricting the
exercise of voting rights of members, then a member cannot be prevented from
voting, even though, calls or other sums payable by him have not been paid or
the company has exercised any right of lien over his shares. But, where the articles
contain any such provision, and the shares forfeited for non-payment of calls
have been re-allotted, the new allottee being liable for the balance, if any,
remaining unpaid on the shares would not be entitled to vote so long as any calls
presently payable on the shares remain unpaid.
Illustration 8
Suppose Mr. Subramaniam and Mrs. Sneha are joint shareholders of Sports
Equipment Private Limited holding 500 equity shares. In respect of a particular
special business being transacted at the extra-ordinary general meeting (EGM) of
the company, Mr. Subramaniam is in favour of passing the resolution whereas Mrs.
Sneha does not favour the resolution. Decide how should the vote be casted in case
such a situation arises?
Answer:
The voting in case of joint shareholders is done in the order of seniority, which is
determined on the basis of the order in which their names appear in the register of
members. The joint-holders have a right to instruct the company as to the order
in which their names shall appear in the register of members. Accordingly, in case
of Mr. Subramaniam and Mrs. Sneha, it is to be seen as to whose name appears
first in the register of members; and then to decide whether the vote is casted in
favour of resolution or against it.
Illustration 9
Consider a situation where directors are also the shareholders of the company.
Answer:
Directors, who are also the shareholders of the company, stand in a fiduciary
relationship with the company in their capacity as directors. However, a director
shall vote in the same manner as a common shareholder would have voted in a

general meeting. Therefore, while casting his vote, he is not supposed to be

influenced by the fact that he is one of the directors of the company.
VOTING BY SHOW OF HANDS [SECTION 107]11

◼ According to section 107 (1) of the Companies Act, 2013, unless the voting is
demanded by way of poll or by electronic means, the voting shall be done by
way of show of hands in the first instance.
◼ Section 107(2) states that the declaration by the Chairman of the meeting of
the passing of a resolution or otherwise by show of hands and an entry to
that effect in the minutes books shall be conclusive evidence that the
resolution has been passed.
Illustration 10
Can an insolvent shareholder vote at the general meeting by show of hands?
Answer: Yes. Notwithstanding that he has no longer any beneficial interest in the
shares and the dividends are payable only to his trustee in bankruptcy, an
insolvent shareholder so long as he remains in the register of the company as a
member, is entitled to exercise his votes which are attributed to his status as a
member.
VOTING THROUGH ELECTRONIC MEANS [SECTION 108]
Section 108 of the Companies Act, 2013 has introduced the facility of e-voting in
respect of prescribed classes of companies. Accordingly, the members of such
companies may exercise their right to vote by electronic means.
Rule 20 of the Companies (Management & Administration) Rules, 2014 provides a

detailed procedure for electronic voting.
Rule 20 (1) states that “voting through electronic means” shall apply in respect
of the general meetings for which notices are issued on or after the date of
commencement of Rule 20.
11
company. Notification No. GSR 8 (E), Dated 4th January, 2017.

Companies required to provide its members the facility of exercising right to

vote by electronic means [Rule 20 (2)]:
Every company which:
- has listed its equity shares on a recognised stock exchange; and
- has not less than one thousand members;
shall provide to its members facility to exercise their right to vote on resolutions
proposed to be considered at a general meeting by electronic means.
Exempted entity: However, a Nidhi, or an enterprise or institutional investor

referred to in Chapter XB or Chapter XC of the Securities and Exchange Board of
India (Issue of Capital and Disclosure Requirements) Regulations, 2009 is not
required to provide the facility to vote by electronic means.
Explanation-I.- For the purpose of this sub-rule, “Nidhi” means a company which
has been incorporated as a Nidhi with the object of cultivating the habit of thrift
and savings amongst its members, receiving deposits from and lending to, its
members only, for their mutual benefit, and which complies with such rules as are
prescribed by the Central Government for regulation of such class of companies.
Explanation-II.- For the purposes of this rule, the expression-
✓ ‘cut-off date' means a date not earlier than seven days before the date of
general meeting for determining the eligibility to vote by electronic means
or in the general meeting. [Explanation II (ii) to Rule 20(2)]
✓ ‘cyber security’ means protecting information, equipment, devices,
computer, computer resource, communication device and information
stored therein from unauthorised access, use, disclosures, disruption,
modification or destruction;
✓ 'electronic voting system' means a secured system based process of display

of electronic ballots, recording of votes of the members and the number of
votes polled in favour or against, in such a manner that the entire voting
exercised by way of electronic means gets registered and counted in an
electronic registry in a centralised server with adequate cyber security.
[Explanation II(iv) to Rule 20(2)]

✓ 'remote e-voting' means the facility of casting votes by a member using an

electronic voting system from a place other than venue of general meeting.
[Explanation II(v) to Rule 20(2)]
✓ ‘secured system’ means computer hardware, software, and procedure that -

(a) are reasonably secure from unauthorised access and misuse;
(b) provide a reasonable level of reliability and correct operation;

(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures; [Explanation II (vi)
to Rule 20(2)]
✓ 'voting by electronic mean' includes "remote e-voting and voting" at the
general meeting through an electronic voting system which may be the
same as used for remote e-voting. [Explanation II (vii) to Rule 20(2)]
Exercise of right to vote through voting by electronic means by a member: A
member may exercise his right to vote through voting by electronic means on
resolutions and the company shall pass such resolutions in accordance with the
provisions of this rule.
Procedure: Rule 20 (4) states that a company which provides the facility to its
members to exercise voting by electronic means shall comply with the following
procedure:
(i) Notice of meeting: The notice of the meeting shall be sent to all the
members, directors and auditors of the company either-
(a) by registered post or speed post; or
(b) through electronic means, namely, registered e-mail ID of the
recipient; or
(c) by courier service;
(ii) Placing of Notice on website: The notice shall also be placed on the
website, if any, of the company and of the agency forthwith after it is sent
to the members;

(iii) Particulars contained in Notice: The notice of the meeting shall clearly
state -
(a) that the company is providing facility for voting by electronic means
and the business may be transacted through such voting;
(b) that the facility for voting, either through electronic voting system or
ballot or polling paper shall also be made available at the meeting and
members attending the meeting who have not already cast their vote
by remote e-voting shall be able to exercise their right at the meeting;
(c) that the members who have cast their vote by remote e-voting prior
to the meeting may also attend the meeting but shall not be entitled
to cast their vote again;
(iv) The Notice shall:

(a) indicate the process and manner for voting by electronic means;
(b) indicate the time schedule including the time period during which the
votes may be cast by remote e-voting;
(c) provide the details about the login ID;
(d) specify the process and manner for generating or receiving the
password and for casting of vote in a secure manner.
(v) Publication of notice:
The company shall cause a public notice by way of an advertisement to be
published, immediately on completion of dispatch of notices for the
meeting under clause (i) of sub-rule (4) but at least twenty-one days before
the date of general meeting, at least once in a vernacular newspaper in the
principal vernacular language of the district in which the registered office of
the company is situated, and having a wide circulation in that district, and at
least once in English language in an English newspaper having country-
wide circulation, and specifying in the said advertisement, inter alia, the
following matters, namely:-
(a) statement that the business may be transacted through voting by
electronic means;
(b) the date and time of commencement of remote e-voting;

(c) the date and time of end of remote e-voting;

(d) cut-off date;
(e) The manner in which persons who have acquired shares and become
members of the company after the dispatch of notice may obtain the
login ID and password;
(f) the statement that-
(A) remote e-voting shall not be allowed beyond the said date and
time;
(B) the manner in which the company shall provide for voting by
members present at the meeting;
(C) a member may participate in the general meeting even after
exercising his right to vote through remote e-voting but shall
not be allowed to vote again in the meeting; and
(D) a person whose name is recorded in the register of members or
in the register of beneficial owners maintained by the
depositories as on the cut-off date only shall be entitled to avail
the facility of remote e-voting as well as voting in the general
meeting;
(g) website address of the company, if any, and of the agency where
notice of the meeting is displayed; and
(h) name, designation, address, email id and phone number of the person
responsible to address the grievances connected with facility for
voting by electronic means:
Provided that the public notice shall be placed on the website of the
company, if any, and of the agency;
(vi) Time for opening of e-voting: The facility for remote e-voting shall remain
open for not less than three days and shall close at 5.00 p.m. on the date
preceding the date of the general meeting;
(vii) Option for remote e-voting: During the period when facility for remote e-
voting is provided, the members of the company, holding shares either in

physical form or in dematerialized form, as on the cut-off date, may opt for
remote e-voting.
Provided that once the vote on a resolution is cast by the member, he shall
not be allowed to change it subsequently or cast the vote again:
Provided further that a member may participate in the general meeting
even after exercising his right to vote through remote e-voting but shall not
be allowed to vote again;
(viii) When to block facility: At the end of the remote e-voting period, the
facility shall forthwith be blocked:
Provided that if a company opts to provide the same electronic voting
system as used during remote e-voting during the general meeting, the said
facility shall be in operation till all the resolutions are considered and voted
upon in the meeting and may be used for voting only by the members
attending the meeting and who have not exercised their right to vote
through remote e- voting.
(ix) Appointment of scrutinizer(s): The Board of Directors shall appoint one or
more scrutinizer, who may be Chartered Accountant in practice, Cost
Accountant in practice, or Company Secretary in practice or an Advocate, or
any other person who is not in employment of the company and is a person
of repute who, in the opinion of the Board can scrutinize the voting and
remote e-voting process in a fair and transparent manner.
Provided that the scrutinizer so appointed may take assistance of a person
who is not in employment of the company and who is well-versed with the
electronic voting system;
(x) Willingness of scrutinizer for appointment: the scrutinizer shall be
willing to be appointed and be available for the purpose of ascertaining the
requisite majority;
(xi) Role of Chairman: The Chairman shall, at the general meeting, at the end
of discussion on the resolutions on which voting is to be held, allow voting,
as provided in clauses (a) to (h) of sub-rule (1) of rule 21, as applicable, with
the assistance of scrutinizer, by use of ballot or polling paper or by using
an electronic voting system for all those members who are present at the

general meeting but have not cast their votes by availing the remote e-
voting facility.
(xii) Counting of votes: The scrutinizer shall, immediately after the conclusion
of voting at the general meeting, first count the votes cast at the meeting,
thereafter unblock the votes cast through remote e-voting in the presence
of at least two witnesses not in the employment of the company and make,
not later than three days of conclusion of the meeting, a consolidated
scrutinizer’s report of the total votes cast in favour or against, if any, to the
Chairman or a person authorized by him in writing who shall countersign
the same:
Provided that the Chairman or a person authorized by him in writing shall
declare the result of the voting forthwith;
Explanation: It is hereby clarified that the manner in which members have

cast their votes, that is, affirming or negating the resolution, shall remain
secret and not available to the Chairman, Scrutiniser or any other person till
the votes are cast in the meeting.
(xiii) Scrutinisers to have access to details relating to members: For the
purpose of ensuring that members who have cast their votes through
remote e-voting do not vote again at the general meeting, the scrutiniser
shall have access, after the closure of period for remote e-voting and before
the start of general meeting, to details relating to members, such as their
names, folios, number of shares held and such other information that the
scrutiniser may require, who have cast votes through remote e-voting but
not the manner in which they have cast their votes:
(xiv) Maintenance of Register by scrutinisers: The scrutiniser shall maintain a
register either manually or electronically to record the assent or dissent
received, mentioning the particulars of name, address, folio number or
client ID of the members, number of shares held by them, nominal value of
such shares and whether the shares have differential voting rights;
(xv) Safe Custody of register: The register and all other papers relating to
voting by electronic means shall remain in the safe custody of the
scrutiniser until the Chairman considers, approves and signs the minutes
and thereafter, the scrutiniser shall hand over the register and other related
papers to the company.

(xvi) Results along with the report of the scrutiniser to be placed on

websites: The results declared along with the report of the scrutiniser shall
be placed on the website of the company, if any, and on the website of the
agency immediately after the result is declared by the Chairman:
Provided that in case of companies whose equity shares are listed on a
recognised stock exchange, the company shall, simultaneously, forward the
results to the concerned stock exchange or exchanges where its equity
shares are listed and such stock exchange or exchanges shall place the
results on its or their website.
(xvii) Date when resolution shall be deemed to be passed: Subject to receipt of
requisite number of votes, the resolution shall be deemed to be passed on
the date of the relevant general meeting.
Explanation: For the purposes of this clause, the requisite number of votes
shall be the votes required to pass the resolution as the ‘ordinary resolution’
or the ‘special resolution’, as the case may be, under section 114 of the
(xviii) Resolution not to be withdrawn: A resolution proposed to be considered
through voting by electronic means shall not be withdrawn.
DEMAND FOR POLL [SECTION 109]12

Section 109 provides that before or on the declaration of result of the voting on
any resolution on show of hands, a poll may be ordered to be taken by the
Chairman of the meeting on his own motion or on a demand made by the
‘specified’ members in that behalf.
◼ Members who can demand for poll:

 In case of a company having a share capital, by the members present
in person or proxy, where allowed, and having not less than 1/10th of
the total voting power or holding shares on which an aggregate sum
of not less than ` 5,00,000 or such higher amount as may be
prescribed has been paid–up.
12
company. Notification No. 8 (E), Dated 4th January, 2017

 In case of any other company, by any member or members present in

person or by proxy, where allowed, and having not less than 1/10th of
the total voting power.
◼ Withdrawal of demand for poll: The demand for a poll may be withdrawn
at any time by the persons who made the demand.
◼ To take forthwith poll demanded for adjournment of meeting or
appointment of Chairman: A poll demanded for adjournment of the
meeting or appointment of Chairman of the meeting shall be taken
forthwith.
◼ When to take poll demanded on any other question: A poll demanded on

any question other than adjournment of the meeting or appointment of
Chairman shall be taken at such time, not being later than 48 hours from the
time when the demand was made, as the Chairman of the meeting may
direct.
◼ Appointment of sufficient number of scrutinizers: Where a poll is to be
taken, the Chairman of the meeting shall appoint sufficient number of
scrutinizers to scrutinize the poll process and votes given on poll and to
report thereon to him.
◼ Duties of scrutinizer: The duties of a scrutinizer shall be as follows–
 To ensure proper conduct of the polling process;
 To maintain proper records of the poll;
 To submit a report to the Chairman of the meeting which shall contain
the details of votes cast in the favour and against the resolution; and
 To ensure the compliance of the provisions of section 109 and
Rule 21.
◼ Power of Chairman to regulate: The Chairman of the meeting shall have
the power to regulate the manner in which the poll shall be taken.
◼ Rule 21 lays down the procedure describing the manner in which the
Chairman shall get the poll process scrutinized-
 According to Rule 21 (1), the Chairman of the meeting shall ensure
that –

❖ The Scrutinizers are provided with the Register of Members,

specimen signatures of the members, Attendance Register and
Register of Proxies.
❖ The Scrutinizers are provided with all the documents received by
the Company pursuant to sections 105, 112 and section 113.
❖ The Scrutinizers shall arrange for Polling papers and distribute

them to the members and proxies present at the meeting; in
case of joint shareholders, the polling paper shall be given to the
first named holder or in his absence to the joint holder
attending the meeting as appearing in the chronological order in
the folio and the Polling paper shall be in Form No. MGT-12.
❖ The Scrutinizers shall keep a record of the polling papers
received in response to poll, by initialling it.
❖ The Scrutinizers shall lock and seal an empty polling box in the
presence of the members and proxies.
❖ The Scrutinizers shall open the Polling box in the presence of
two persons as witnesses after the voting process is over.
❖ In case of ambiguity about the validity of a proxy, the

Scrutinizers shall decide the validity in consultation with the
Chairman.
❖ The Scrutinizers shall ensure that if a member who has

appointed a proxy has voted in person, the proxy’s vote shall be
disregarded.
❖ The Scrutinizers shall count the votes cast on poll and prepare a
report thereon addressed to the Chairman.
❖ Where voting is conducted by electronic means under the
provisions of section 108 and rules made thereunder, the
company shall provide all the necessary support, technical and
otherwise, to the Scrutinizers in orderly conduct of the voting
and counting the result thereof.

❖ The Scrutinizers’ report shall state total votes cast, valid votes,
votes in favour and against the resolution including the details
of invalid polling papers and votes comprised therein.
❖ The Scrutinizers shall submit the Report to the Chairman who
shall counter-sign the same.
❖ The Chairman shall declare the result of voting on poll. The
result may either be announced by him or a person authorized
by him in writing.
 The scrutinizers appointed for the poll, shall submit a report to the
Chairman of the meeting in Form No. MGT-13. The report shall be
signed by the scrutinizer and, in case there is more than one
scrutinizer by all the scrutinizers, and the same shall be submitted by
them to the Chairman of the meeting within seven days from the date
the poll is taken. [Rule 21 (2)]
 The results of the poll shall be deemed to be the decision of the
meeting on the resolution. [Section 109 (7)]
Applicability of section 101 to 107 and 109 to Private companies- Section 101 to
107 and 109 shall apply unless otherwise specified in respective sections or the
articles of the company provide otherwise. This exception shall be applicable to a
private company which has not committed a default in filing its financial
statements under section 137 or annual return under section 92 of the Act, with
the Registrar. [Notification No. 464 (E), dated 5th June, 2015 as amended by
Notification No. GSR 583 (E), dated 13th June 2017].
POSTAL BALLOT [SECTION 110]

Section 2(65) defines the term “postal ballot” to mean voting by post or through
any electronic mode.
The provisions relating to passing of resolutions by means of ‘postal ballot’ are
contained in Section 110.
Further, Rule 22 of the Companies (Management and Administration) Rules, 2014

contains the provisions relating to procedure to be followed for conducting
business through postal ballot.

Extract of Section 110 of the Companies Act, 2013

“(1) Notwithstanding anything contained in this Act, a company—
(a) shall, in respect of such items of business as the Central Government
may, by notification, declare to be transacted only by means of postal
ballot; and
(b) may, in respect of any item of business, other than ordinary business
and any business in respect of which directors or auditors have a right
to be heard at any meeting, transact by means of postal ballot,
in such manner as may be prescribed, instead of transacting such business

at a general meeting.
Provided that any item of business required to be transacted by means of
postal ballot under clause (a), may be transacted at a general meeting by a
company which is required to provide the facility to members to vote by
electronic means under section 108, in the manner provided in that section.
(2) If a resolution is assented to by the requisite majority of the shareholders by
means of postal ballot, it shall be deemed to have been duly passed at a
general meeting convened in that behalf.”
➢ Section 110 seeks to provide that the Central Government may declare
certain items of business that can be transacted only by postal ballot. In
addition, in respect of any other item of business (except ordinary business
and any business in respect of which directors or auditors have a right to be
heard at any meeting) postal ballot may be used.
➢ Sub-section (2) of Section 110 makes a deeming provision that if a
resolution is assented by requisite majority of shareholders by means of
postal ballot, it shall be deemed to have been passed at a general meeting
convened in that behalf.
➢ Manner in which postal ballot shall be conducted is prescribed in Rule 22 of

the Companies (Management & Administration) Rules, 2014. The same is
described as under:
 Where a company is required or decides to pass any resolution by way
of postal ballot, it shall send a notice to all the shareholders, along
with a draft resolution explaining the reasons therefor and requesting

them to send their assent or dissent in writing on a postal ballot

because postal ballot means voting by post or through electronic
means within a period of thirty days from the date of dispatch of the
notice.
 The notice shall be sent either:
(a) by Registered Post or speed post, or
(b) through electronic means like registered e-mail id or

(c) through courier service for facilitating the communication of the
assent or dissent of the shareholder to the resolution within the
said period of thirty days.
 An advertisement shall be published at least once in a vernacular
newspaper in the principal vernacular language of the district in which
the registered office of the company is situated, and having a wide
circulation in that district, and at least once in English language in an
English newspaper having a wide circulation in that district, about
having dispatched the ballot papers and specifying therein, inter alia,
the following matters, namely:-
(a) a statement to the effect that the business is to be transacted by
postal ballot which includes voting by electronic means;
(b) the date of completion of dispatch of notices;
(c) the date of commencement of voting;
(d) the date of end of voting;

(e) the statement that any postal ballot received from the member
beyond the said date will not be valid and voting whether by
post or by electronic means shall not be allowed beyond the
said date;
(f) a statement to the effect that members, who have not received
postal ballot forms may apply to the company and obtain a
duplicate thereof; and

(g) contact details of the person responsible to address the

grievances connected with the voting by postal ballot including
voting by electronic means.
 The notice of the postal ballot shall also be placed on the website of
the company forthwith after the notice is sent to the members and
such notice shall remain on such website till the last date for receipt of
the postal ballots from the members.
 The Board of directors shall appoint one scrutinizer, who is not in
employment of the company and who, in the opinion of the Board can
conduct the postal ballot voting process in a fair and transparent
manner.
 The scrutinizer shall be willing to be appointed and be available for

the purpose of ascertaining the requisite majority.
 Postal ballot received back from the shareholders shall be kept in the
safe custody of the scrutinizer and after the receipt of assent or
dissent of the shareholder in writing on a postal ballot, no person shall
deface or destroy the ballot paper or declare the identity of the
shareholder.
 The scrutinizer shall submit his report as soon as possible after the last
date of receipt of postal ballots but not later than seven days thereof.
 The scrutinizer shall maintain a register either manually or

electronically to record their assent or dissent received, mentioning
the particulars of name, address, folio number or client ID of the
shareholder, number of shares held by them, nominal value of such
shares, whether the shares have differential voting rights, if any,
details of postal ballots which are received in defaced or mutilated
form and postal ballot forms which are invalid.
 The postal ballot and all other papers relating to postal ballot
including voting by electronic means, shall be under the safe custody
of the scrutinizer till the Chairman considers, approves and signs the
minutes and thereafter, the scrutinizer shall return the ballot papers
and other related papers or register to the company who shall
preserve such ballot papers and other related papers or register safely.

 The assent or dissent received after thirty days from the date of issue
of notice shall be treated as if reply from the member has not been
received.
 The results shall be declared by placing it, along with the scrutinizer’s
report, on the website of the company.
 The provisions of rule 20 regarding voting by electronic means shall
apply, as far as applicable, mutatis mutandis to this rule in respect of
the voting by electronic means.
 pursuant to clause (a) of sub-section (1) of section 110, the following
items of business shall be transacted only by means of voting through
a postal ballot—
(a) alteration of the objects clause of the memorandum and in the
case of the company in existence immediately before the
commencement of the Act, alteration of the main objects of the
memorandum;
(b) alteration of articles of association in relation to insertion or

removal of provisions which, under sub-section (68) of section 2,
are required to be included in the articles of a company in order
to constitute it a private company;
(c) change in place of registered office outside the local limits of any
city, town or village as specified in sub-section (5) of section 12;
(d) change in objects for which a company has raised money from
public through prospectus and still has any unutilized amount
out of the money so raised under sub-section (8) of section 13;
(e) issue of shares with differential rights as to voting or dividend or

otherwise under sub-clause (ii) of clause (a) of section 43;
(f) variation in the rights attached to a class of shares or debentures

or other securities as specified under section 48;
(g) buy-back of shares by a company under sub-section (1) of section

68;

(h) election of a director under section 151 of the Act;
(i) sale of the whole or substantially the whole of an undertaking of

a company as specified under sub-clause (a) of sub-section (1)
of section 180;
(j) giving loans or extending guarantee or providing security in

excess of the limit specified under sub-section (3) of section 186:
Provided that any aforesaid items of business under this sub-rule, required
to be transacted by means of postal ballot, may be transacted at a general
meeting by a company which is required to provide the facility to members
to vote by electronic means under section 108, in the manner provided in
that section.
Provided further that One Person Companies and other companies having
members upto two hundred are not required to transact any business
through postal ballot.
How does the counting happen at the time of postal ballot?

It is important to know here that, a member who is voting by way of postal ballot,
has votes in proportion to his share in the paid-up share capital of the company.
And in this regard, he need not use all his votes in the same way. Therefore,
following types of postal ballots may be received from the shareholders–
(i) Ballots which contain assents;
(ii) Ballots which contain dissents;
(iii) Ballots wherein the member has voted partially assenting, partially
dissenting or using not all his shares in any particular way; and
(iv) Invalid ballots (due to absence/mismatch of signature, overwriting, etc.)
The postal ballots shall be segregated as per the above criteria and resolution
shall be deemed as passed if assents are greater in number.

7. CIRCULATION OF MEMBERS’ RESOLUTIONS

[SECTION 111]
Circulation of members’ resolution and statements: While the board enjoys the
primacy in setting the agenda of the meetings, the members are given a right under
section 111 to propose resolutions for consideration at the general meetings. The
number of members required to make a requisition under sub-section (1) of this section
are as required to requisition a general meeting in sub-section (2) of section 100.
(1) Prerequisites of a valid Requisition: The prerequisites for a valid
requisition prescribed in sub-section (2) of section 111 are as under:
(a) Requisition must be made in writing and signed
(i) in the case of a company having a share capital, such number of
members who hold, on the date of the receipt of the requisition,
not less than one-tenth of such of the paid-up share capital of
the company as on that date carries the right of voting;
(ii) in the case of a company not having a share capital, such
number of members who have, on the date of receipt of the
requisition, not less than one-tenth of the total voting power of
all the members having on the said date a right to vote.
(b) Two or more copies of the said requisition are required to contain
signatures of all the requisitionists.
(c) The requisition must be deposited at the registered office of the
company not less than six weeks before the meeting in the case of a
requisition requiring notice of a resolution. In case of other
resolutions, the same is to be deposited not less than two weeks
before the meeting.
(d) A sum reasonably sufficient to meet the company’s expenses in giving
effect to proposing the resolution is deposited or tendered. When the
money is tendered, no payment is made but an unconditional offer is
made to pay money.
The proviso to sub-section (2) of section 111 provides that the time period
provided above need not be complied with in case an annual general
meeting is called on a date within six weeks after the copy has been

deposited. The copy of requisition, in such a case, shall be deemed to have

been properly deposited for the purposes thereof although not deposited
within the time required by this sub-section. The company is not duty
bound to circulate the notice of the resolution when the prerequisites are
not complied with.
(2) Notice to members: As per section 111 of the Companies Act, 2013, a
company shall, on requisition in writing of such number of members, as
required in section 100 (calling of EGM), give notice to members of any
resolution which may properly be moved and is intended to be moved at a
meeting; and circulate to members any statement with respect to the
matters referred to in proposed resolution or business to be dealt with at
that meeting.
(3) Exemption from circulation of any statement: The Company shall not be
bound to circulate any statement, if on the application either on behalf of
the company or of any other person who claims to be aggrieved, the
13
Central Government, by order, declares that the rights conferred are being
abused to secure needless publicity for defamatory matter.
(4) Order to bear the cost: An order made as above by the Central
Government may also direct that the cost incurred by the company shall be
paid to the company by the requisitionists, notwithstanding that they are
not parties to the application.
(5) Default in complying with the provisions: If any default is made in
complying with the provisions of this section, the company and every officer
of the company who is in default shall be liable to a penalty of twenty-five
thousand rupees.
8. REPRESENTATION OF THE PRESIDENT &

GOVERNORS IN MEETING OF COMPANIES TO
WHICH THEY ARE MEMBER [SECTION 112]
Section 112 of the Companies Act, 2013 provides that the President of India or
the Governor of a State, if he is a member of a company, may appoint such
person as he thinks fit to act as his representative at any meeting and such other
The Power of the Central Government has been delegated to Regional Director. MCA
13
Notification 4090 (E) dated 19 th December, 2016.

person shall be entitled to exercise the same rights and powers including the
right to vote by proxy and postal ballot, as the President or, as the case may be,
the Governor could exercise as a member of the company.
9. REPRESENTATIONS OF CORPORATIONS
MEETING OF COMPANIES AND CREDITORS
[SECTION 113]
Section 113 of the Companies Act, 2013 seeks to provide that where a body
corporate is a member or a creditor including a holder of debentures of the
company and it authorises any person as its representative at any meeting of the
company or any class of members of the company or at any meeting of creditors
of the company, such representative shall be entitled to exercise the same rights
and powers including right to vote by proxy and by postal ballot on behalf of the
body corporate which he represents.
10. RESOLUTIONS [SECTION 114–117]

In lay man’s language, a resolution is the formal decision of an organization while
transacting a business at a meeting. A motion which has obtained the necessary
majority vote in its favour becomes a resolution. When a resolution is passed, a
company is bound by it.
Difference between Motion and Resolution—
◼ Most matters come before a meeting by way of a motion recommending
that the meeting may express approval or disapproval or take certain action
or order something to be done.
◼ A motion is a proposal, and a resolution is the adoption of a motion duly
made and seconded. But every motion need not be followed by a resolution,
e.g. where a motion is made for the adjournment of the meeting.
◼ A motion whether it is passed for the closure of discussion or adjournment,
etc. can be passed by an ordinary resolution unless there is a specific
provision in the articles.

ORDINARY AND SPECIAL RESOLUTION [SECTION 114]

As per the Companies Act, 2013, resolutions are of two types–
◼ Ordinary Resolutions – which are passed by simple majority; and

◼ Special Resolutions – votes cast in favour are not less than 3 times the
number of the votes, if any, cast against the resolution by members so
entitled and voting
Resolutions
Special resolution
Ordinary Resolution
votes cast in favour are not less than 3 times the
passed by simple majority, number of the votes, if any, cast against the
i.e. more than 50% resolution by members so entitled and voting
Section 114 of the Companies Act, 2013 states as to what constitutes an Ordinary
Resolution and a Special Resolution.
Ordinary Resolution
Section 114(1) states that a resolution shall be ordinary resolution, if the notice
required under this Act has been duly given and it is required to be passed by the
votes cast, whether on a show of hands, or electronically or on a poll, as the case
may be, in favour of the resolution, including the casting vote, if any, of the
Chairman, by members, who, being entitled so to do, vote in person, or where
proxies are allowed, by proxy or by postal ballot, exceed the votes, if any cast
against the resolution by members, so entitled and voting.
Simply put, the votes cast in the favour of the resolution by any mode of voting
should exceed the votes cast against it.
Special Resolution
As per Section 114(2) of the Act, a resolution shall be a special resolution, when–
(a) The intention to propose the resolution as a special resolution has been
duly specified in the notice calling the general meeting or other intimation
given to the members of the resolution;
(b) The notice required under this Act has been duly given; and

(c) The votes cast in favour of the resolution, whether on a show of hands, or
electronically or on a poll, as the case may be, by members who, being
entitled so to do, vote in person or by proxy or by postal ballot, are required
to be not less than 3 times the number of the votes, if any, cast against the
resolution by members so entitled and voting.
Characteristics of Special Resolution—
1. Specified Majority - 3 times of the number of votes cast against
2. Resolution shall be set out in the notice
3. Proper notice of 21 days is given for holding the general meeting
4. Explanatory Statement should be annexed to the notice for conducting special

business
Illustration 11
The Annual General Meeting of Super Star Bakers Limited was attended by 60
members. In respect of a particular business, the resolution was to be passed as a
special resolution. Ten members voted against the resolution whereas five abstained
themselves from the voting. The Chairman of the meeting Mr. Ravinder declared
that the resolution was passed as a special resolution. Whether the declaration is
valid.
Answer: In case of a special resolution, the requirement is that the votes cast in
favour of the resolution must be three times the number of the votes cast against
it. In the above case, ten members voted against the resolution which implies that
minimum thirty members (three times of ten) must vote in favour of the
resolution. Ignoring five members who abstained themselves from voting, forty-
five members (sixty minus ten minus five) voted in favour of the resolution which
far exceeds the required majority of thirty members. Therefore, declaration by Mr.
Ravinder, Chairman of the meeting, that the resolution was passed as a special
resolution is valid.

Illustration 12
In the annual general meeting of Steel Products Limited, the notice contained the
agenda for 8 special businesses to be transacted. The Chairman decided to move all
the resolutions at one time in order to save time of the members present at the
meeting. Discuss whether two or more resolutions can be moved together as per the
provisions of the Companies Act, 2013.
Answer: For the sake of avoiding confusion and mixing up, the resolutions are
moved separately. However, there is nothing illegal if the Chairman of the
meeting decides that two or more resolutions should be moved together, unless
any member requires that each resolution should be put to vote separately or
unless a poll is demanded in respect of any.
The only case where a resolution should be moved separately is the one which
requires that as regards the appointment of directors at a general meeting of a
public or private company, where two or more directors may not be appointed as
directors by a single resolution.
Where notice has been given of several resolutions, each resolution must be put
separately. However, if the meeting unanimously adopts all the resolutions, this
would be immaterial.
RESOLUTIONS REQUIRING SPECIAL NOTICE [SECTION 115]
Section 115 of the Companies Act, 2013 read with rule 23 of Companies
(Management and Administration) Rules, 2014 deals with resolutions
requiring special notice
According to Section 115 where, by any provision contained in this Act or in the
Articles of a company, special notice is required for passing any resolution, then
the notice of the intention to move such resolution shall be given to the company
by such number of members holding not less than 1% of the total voting power,
or holding shares on which such aggregate sum not exceeding five lakh
rupees, as may be prescribed, has been paid-up.
Special notice for passing a resolution is required in the following cases –
(a) Resolution for appointment of an auditor other than the retiring auditor at
an annual general meeting. [Section 140 (4)]

(b) Resolution at an annual general meeting providing expressly that a retiring

auditor shall not be re-appointed. [Section 140 (4)]
(c) Resolution to remove a director before the expiry of his period of office.
[Section 169 (2)]
(d) Resolution to appoint another person as director in place of the removed
director at the meeting at which he is removed. [(Section 169 (2)]
Further, the articles may provide for certain additional matters which require
special notice.
Rule 23 specifies the procedure to be followed in respect of Special Notice as
under:
1. A special notice required to be given to the company shall be signed, either
individually or collectively by such number of members holding not less
than one percent of total voting power or holding shares on which an
aggregate sum of not less than 5,00,000 rupees has been paid up on the
date of the notice.
2. The afore-mentioned notice shall be sent by members to the company not

earlier than 3 months but at least 14 days before the date of meeting at
which the resolution is to be moved, exclusive of the day on which the
notice is given and the day of the meeting.
3. The company shall immediately after receipt of the notice, give its members
notice of the resolution at least seven days before the meeting, exclusive of
the day of dispatch of notice and day of the meeting, in the same manner as
it gives notice of any general meetings.
4. Where it is not practicable to give the notice in the same manner as it gives
notice of any general meetings, the notice shall be published in English
language in English newspaper and in vernacular language in a vernacular
newspaper, both having wide circulation in the State where the registered
office of the Company is situated and such notice shall also be posted on
the website, if any, of the Company.
5. The notice shall be published at least seven days before the meeting,
exclusive of the day of publication of the notice and day of the meeting.

RESOLUTIONS PASSED AT ADJOURNED MEETING [SECTION 116]

As per Section 116 of the Companies act, 2013, where a resolution is passed at an
adjourned meeting of:
(a) a company; or
(b) the holders of any class of shares in a company; or
(c) the Board of Directors of a company,

the resolution shall be treated as having been passed on the day on which it was
actually passed and not on any earlier date.
Example
The extra-ordinary general meeting of the company, Purple Cosmetics Private
Limited was due to be held on Thursday, 23rd June, 2022. However, due to want of
quorum, the meeting was adjourned to a later date on Thursday, 30 th June, 2022
and two resolutions were passed on that date.
According to section 116 of the Companies Act, 2013, the said two resolutions
shall be deemed to have been passed on the adjourned date of meeting, i.e.
Thursday, 30 th June, 2022 and not on the earlier date.
RESOLUTIONS AND AGREEMENTS TO BE FILED [SECTION 117]
Section 11714&15 of the Companies Act, 2013 provides that a copy of every
resolution or any agreement, in respect of matters specified in sub-section (3)
together with the explanatory statement under section 102, if any, annexed to the
notice calling the meeting in which the resolution is proposed, shall be filed with
the Registrar within thirty days of the passing or making thereof in such manner
and with such fees as may be prescribed.
Provided that the copy of every resolution which has the effect of altering the
articles and the copy of every agreement referred to in sub-section (3) shall be
14
In case of Specified IFSC Public Company - Sub-section (1) of section 117, for the
words “thirty days” read as “sixty days”. Notification No. GSR 8 (E), Dated 4th January,
2017.
15
In case of Specified IFSC Private Company - Sub-section (1) of section 117, for the
words “thirty days” read as “sixty days”. Notification No. GSR 9 (E), Dated 4th January,
2017.

embodied in or annexed to every copy of the articles issued after passing of the
resolution or making of the agreement.
According to Rule 24 of the Companies (Management and Administration) Rules,

2014, a copy of every resolution or any agreement required to be filed, together
with the explanatory statement under section 102, if any, shall be filed with the
Registrar in Form No. MGT-14 along with the fee.
Resolutions and agreements to be filed with the Registrar as per Section 117
(3) are as under: –
◼ Special Resolutions
◼ Resolutions which have been agreed to by all the members of a company,
but which, if not so agreed to, would not have been effective for their
purpose unless they had been passed as special resolutions;
◼ Any resolution of the Board of Directors of a company or agreement

executed by a company, relating to the appointment, re-appointment or
renewal of the appointment, or variation of the terms of appointment, of a
managing director;
◼ Resolutions or agreements which have been agreed to by any class of
members but which, if not so agreed to, would not have been effective for
their purpose unless they had been passed by a specified majority or
otherwise in some particular manner; and all resolutions or agreements
which effectively bind such class of members though not agreed to by all
those members.
◼ Resolutions requiring a company to be wound up voluntarily passed in
pursuance of section 59 of the Insolvency and Bankruptcy Code, 2016.
◼ Resolutions passed in pursuance of sub-section (3) of section 179.
16 & 17
16 In case of a private company - clause (g) of Sub-section 3 of Section 117 shall not
apply.
The above mentioned exemption shall be applicable to a private company which has not
committed a default in filing its financial statements under section 137 or annual return under
section 92 with the Registrar- Notification No. GSR 464 (E), dated 5th June, 2015 as amended
by Notification No. GSR 583 (E), dated 13th June, 2017.
17
In case of Specified IFSC Public Company - Clause (g) of sub-section (3) of section
117 shall not apply. Notification No. GSR 8 (E), Dated 4th January, 2017.

Provided that no person shall be entitled under section 399 to inspect or

obtain copies of such resolutions;
Provided further that nothing contained in this clause shall apply in respect
of a resolution passed to grant loans, or give guarantee or provide security
in respect of loans under clause (f) of sub-section (3) of section 179 in the
ordinary course of its business by,—
(a) a banking company;
(b) any class of non-banking financial company registered under Chapter
IIIB of the Reserve Bank of India Act, 1934, as may be prescribed in
consultation with the Reserve Bank of India;
(c) any class of housing finance company registered under the National
Housing Bank Act, 1987, as may be prescribed in consultation with the
National Housing Bank; and
◼ any other resolution or agreement as may be prescribed and placed in the
public domain.
Penalty for contravention [Section 117(2)]
If any company fails to file the resolution or the agreement under sub-section (1)
before the expiry of the period specified therein, such company shall be liable to
a penalty of ten thousand rupees and in case of continuing failure, with a further
penalty of one hundred rupees for each day after the first during which such
failure continues, subject to a maximum of two lakh rupees and every officer of
the company who is in default including liquidator of the company, if any, shall be
liable to a penalty of ten thousand rupees and in case of continuing failure, with a
further penalty of one hundred rupees for each day after the first during which
such failure continues, subject to a maximum of fifty thousand rupees.
11. MINUTES (SECTION 118)

◼ Section 118 of the Companies Act, 2013, states that every company shall
prepare, sign and keep minutes of every general meeting of any class of
shareholders or creditors, including the meeting called by the requisitionists,
and every resolution passed by postal ballot and every meeting of its Board
of Directors or of every committee of the Board, within 30 days of the
conclusion of every such meeting concerned, or passing of resolution by

postal ballot in books kept for that purpose with their pages consecutively
numbered. [Sub-section (1)]18 & 19
◼ The minutes of each meeting shall contain a fair and correct summary of the
proceedings that took place at the concerned meeting.
◼ All appointments made at any of the meetings aforesaid shall be included in
the minutes of the meeting.
◼ In the case of a Board Meeting or a meeting of a committee of the Board,
the minutes shall also contain–
 the names of the directors present at the meeting; and
 in the case of each resolution passed at the meeting, the names of the
directors, if any, dissenting from, or not concurring with the
resolution.
◼ There shall not be included in the minutes, any matter which, in the opinion
of the Chairman of the meeting–
 is or could reasonably be regarded as defamatory of any person; or
 is irrelevant or immaterial to the proceedings; or
 is detrimental to the interests of the company.
◼ The matter to be included or excluded in the minutes of the meetings on the
afore-said grounds shall be at the absolute discretion of the Chairman of the
meeting.
18
In case of Specified IFSC Public Company - In Sub-section (1) of section 118, the
following proviso shall be inserted, namely:-
“Provided that in case of a Specified IFSC public company, the minutes of every
meeting of its Board of Directors or of every committee of the Board, to be prepared and
signed in the manner as may be prescribed under sub section (1) at or before the next
Board or committee meeting, as the case may be and kept in books kept for that
purpose.”.- Notification Date 4th January, 2017
19
In case of Specified IFSC Private Company - In Sub-section (1) of section 118, the
“Provided that in case of a Specified IFSC private company, the minutes of every
meeting of its Board of Directors or of every committee of the Board, to be prepared and
signed in the manner as may be prescribed under sub section (1) at or before the next
Board or committee meeting, as the case may be and kept in books kept for that
purpose.”.- Notification Date 4th January, 2017

◼ The minutes kept in accordance with the provisions of Section 118 shall
serve as the evidence of the proceedings recorded therein.
◼ Where the minutes have been kept in accordance with Section 118 (1), then
until the contrary is proved, the meeting shall be deemed to have been duly
called and held, and all proceedings thereat to have duly taken place, and
the resolutions passed by postal ballot to have been duly passed and in
particular, all appointments of directors, key managerial personnel, auditors
or company secretary in practice, shall be deemed to be valid.
◼ No document, purporting to be a report of the proceedings of any general
meeting of a company shall be circulated or advertised at the expense of the
company, unless it includes the matters requires by this section to be
contained in the minutes of the proceedings of such meeting.
◼ Every company shall observe Secretarial Standards with respect to general
and Board meetings, specified by the Institute of Company Secretaries of
India and approved as such by the Central Government.20 & 21 [Section 118 (10)]
◼ Penalty for contravention–
 If any default is made in complying with the provisions of this section
in respect of any meeting, the company shall be liable to a penalty of
` 25,000 and every officer of the company who is in default shall be
liable to a penalty of ` 5,000.
 If a person is found guilty of tampering with the minutes of the
proceedings of the meeting, he shall be punishable with imprisonment
for a term which may extend to 2 years and with fine which shall not
be less than ` 25,000 but which may extend to ` 1,00,000.
Rule 25 of the Companies (Management & Administration) Rules, 2014
prescribes the procedure for maintenance of minutes of proceedings of
general meeting, meeting of Board of Directors and other meetings and
resolutions passed by postal ballot as follows–
 Distinct minute books to be maintained for each type of meeting: A
distinct minute book shall be maintained for each type of meeting
namely:
20
In case of Specified IFSC Public Company- Sub-section (10) of section 118 Shall not
apply. - Notification No. GSR 8 (E), Dated 4th January, 2017.
21
In case of Specified IFSC Private Company- Sub-section (10) of section 118 Shall not
apply. - Notification No. GSR 9 (E), Dated 4th January, 2017

(i) general meetings of the members;

(ii) meetings of the creditors
(iii) meetings of the Board; and
(iv) meetings of each of the committees of the Board.

Note: Resolutions passed by postal ballot shall be recorded in the
minute book of general meetings as if it has been deemed to be
passed in the general meeting.
 Maximum time allowed for entering minutes of proceedings: The
minutes of proceedings of each meeting shall be entered in the books
maintained for that purpose along with the date of such entry within
thirty days of the conclusion of the meeting.
 Data to be entered when a resolution is passed by Postal Ballot: In case
of every resolution passed by postal ballot, a brief report on the postal
ballot conducted including the resolution proposed, the result of the
voting thereon and the summary of the scrutinizer’s report shall be
entered in the minutes book of general meetings along with the date
of such entry within thirty days from the date of passing of resolution.
 Signing of Minute Books: Each page of every such book shall be
initialled or signed and the last page of the record of proceedings of
each meeting or each report in such books shall be dated and signed–
(i) in the case of minutes of proceedings of a meeting of the Board
or of a committee thereof, by the chairman of the said meeting
or the Chairman of the next succeeding meeting;
(ii) in the case of minutes of proceedings of a general meeting, by
the Chairman of the same meeting within the aforesaid period of
thirty days or in the event of the death or inability of that
Chairman within that period, by a director duly authorised by the
Board for the purpose;
(iii) In case of every resolution passed by postal ballot, by the
Chairman of the Board within the aforesaid period of thirty days
or in the event of there being no Chairman of the Board or the

death or inability of that Chairman within that period, by a

director duly authorized by the Board for the purpose.
 Place of keeping minute books of general meetings and their

preservation: The minute books of general meetings shall be kept at
the registered office of the company and shall be preserved
permanently and kept in the custody of the company secretary or any
director duly authorised by the board.
 Place of keeping minute books of Board and committee meetings and
their preservation: The minute books of the Board and committee
meetings shall be preserved permanently and kept in the custody of
the company secretary of the company or any director duly authorized
by the Board for the purpose and shall be kept in the registered office
or such place as Board may decide.
Exemption to Section 8 companies: In case of section 8 companies (companies

formed with charitable objects, etc.), section 118 shall not apply as a whole except
that minutes may be recorded within 30 days of the conclusion of every meeting
in case of companies where the articles of association provide for confirmation of
minutes by circulation.
The exceptions, modifications and adaptations, shall be applicable to a section 8

company which has not committed a default in filing its financial statements
under 137 or Annual Return under section 92 with the Registrar. Notification No.
GSR 466 (E), dated 5th June, 2015 as amended by Notification No. GSR 584 (E),
dated 13th June, 2017.
12. INSPECTION OF MINUTES-BOOKS OF

GENERAL MEETING [SECTION 119]
Section 119 of the Companies Act, 2013 contains the provisions in respect of
inspection of minute-books of general meeting.
Accordingly, the books containing the minutes of the proceedings of any general
meeting of a company shall–
◼ be kept at the registered office of the company; and

◼ be open for inspection, during business hours, by any member, without

charge, subject to such reasonable restrictions as specified in the articles of
the company or as imposed in the general meeting. However, at least 2
hours in each business day shall be allowed for inspection [Section 119 (1)].
Any member shall be entitled to be furnished, within seven working days after he
has made a request in that behalf to the company, and on payment of such fees
as may be prescribed, with a copy of any minutes. [Section 119 (2)].
In other words, within 7 working days of making a request along with the
requisite fees, the member shall be furnished with a copy of any minutes.
Penalty for contravention [Section 119 (3)]

If any inspection under sub-section (1), is refused by the company to the member,
or if the copy of minute-book is not furnished within the time specified under sub-
section (2), then the company shall be liable to a penalty of ` 25,000 and every
officer of the company who is in default shall be liable to a penalty of ` 5,000 for
each such refusal or default, as the case may be.
Power of Tribunal to order inspection [Section 119 (4)]

In case of any such refusal or default, the Tribunal may, without prejudice to any
action being taken under sub-section (3), by order, direct an immediate
inspection of the minute-books or direct that the copy required shall forthwith be
sent to the person requiring it.
Copy of minute book of general meeting [Rule 26]
Any member shall be entitled to be furnished, within seven working days after he
has made a request in that behalf to the company, with a copy of any minutes of
any general meeting, on payment of such sum as may be specified in the articles
of association of the company, but not exceeding a sum of ten rupees for each
page or part of any page:
Provided that a member who has made a request for provision of soft copy in
respect of minutes of any previous general meetings held during a period
immediately preceding three financial years shall be entitled to be furnished, with
the same free of cost.

MAINTENANCE AND INSPECTION OF DOCUMENTS IN ELECTRONIC

FORM [SECTION 120]
Section 120 of the Companies Act, 2013 seeks to provide that any document,
record, register or minute, etc., required to be kept by a company or allowed to
be inspected or copies given to any person by a company under this Act, may be
kept or inspected or copies given, as the case may be, in electronic form in such
form and manner as may be prescribed.
Provisions prescribed in Rules 27, 28 and 29 of the Companies (Management and
Administration) Rules, 2014 are relevant in this respect. Rule 30 states the penalty
in case of contravention.
Companies which may maintain records in electronic form: Rule 27 of the
Companies (Management and Administration) Rules, 2014 states as under:
◼ Every listed company or a company having at least 1000 shareholders,
debenture-holders and other security holders, may maintain its records, as
required to be maintained under the Act or rules made thereunder, in
electronic form.
Explanation.- For the purposes of this sub- rule, it is hereby clarified that in
case of existing companies, data 1[may] be converted from physical mode to
electronic mode within six months from the date of notification of provisions
of section 120 of the Act.
◼ The records in electronic form shall be maintained in such manner as the
Board of directors may think fit:
Provided that -
(a) the records are maintained in the same formats and in accordance
with all other requirements as provided in the Act or the rules made
thereunder;
(b) the information as required under the provisions of the Act or the
rules made thereunder should be adequately recorded for future
reference;
(c) the records must be capable of being readable, retrievable and
reproducible in printed form;

(d) the records are capable of being dated and signed digitally wherever
it is required under the provisions of the Act or the rules made
thereunder;
(e) the records, once dated and signed digitally, shall not be capable of
being edited or altered;
(f) the records shall be capable of being updated, according to the
provisions of the Act or the rules made thereunder, and the date of
updating shall be capable of being recorded on every updating.
◼ Explanation:- For the purpose of this rule, the term "records" means any
register, index, agreement, memorandum, minutes or any other document
required by the Act or the rules made thereunder to be kept by a company.
Who is responsible for the maintenance and security of electronic records:
Rule 28 sets out that the Managing Director, Company Secretary or any other
director or officer of the company as the Board may decide shall be responsible
for the maintenance and security of electronic records.
The person who is responsible for the maintenance and security of electronic
records shall-
(a) provide adequate protection against unauthorized access, alteration or
tampering of records;
(b) ensure against loss of the records as a result of damage to, or failure of the
media on which the records are maintained;
(c) ensure that the signatory of electronic records does not repudiate the signed
record as not genuine;
(d) ensure that computer systems, software and hardware are adequately secured
and validated to ensure their accuracy, reliability and consistent intended
performance;
(e) ensure that the computer systems can discern invalid and altered records;
(f) ensure that records are accurate, accessible, and capable of being
reproduced for reference later;
(g) ensure that the records are at all times capable of being retrieved to a readable
and printable form;

(h) ensure that records are kept in a non-rewritable and non-erasable format like
pdf. version or some other version which cannot be altered or tampered;
(i) ensure that at least one backup, taken at a periodicity of not exceeding one
day, are kept of the updated records kept in electronic form, every backup is
authenticated and dated and such backups shall be securely kept at such
places as may be decided by the Board;
(j) limit the access to the records to the managing director, company secretary or
any other director or officer or persons performing work of the company as
may be authorized by the Board in this behalf;
(k) ensure that any reproduction of non-electronic original records in electronic
form is complete, authentic, true and legible when retrieved;
(l) arrange and index the records in a way that permits easy location, access and
retrieval of any particular record; and
(m) take necessary steps to ensure security, integrity and confidentiality of records.
Inspection and copies of records maintained in electronic form: Rule 29 states
that the records maintained in electronic form shall be made available for
inspection by the company in electronic form. Copies of the records maintained in
electronic form, containing a clear reproduction of the whole or part thereof, shall
be provided on payment of not exceeding ` 10 per page.
13. GENERAL MEETINGS

Now that we have understood the basic terms which are required to call, convene
and conduct the meetings properly, let us discuss the provisions related to
meetings given in the Companies Act, 2013. The Act describes two types of
general meetings to be held by a company. They are–
Annual General Meeting

Section 96
General Meetings
Extra-ordinary General Meeting
Section 100
read with Rule 17

ANNUAL GENERAL MEETING (AGM) [SECTION 96]

◼ Section 96(1) of the Companies Act, 2013 states that every company,
whether public or private, except One Person Company, shall hold an annual
general meeting every year and that the gap between two AGMs shall not be
more than 15 months.
◼ The company shall specify the meeting as such [i.e. Annual General Meeting
(AGM)] in the notices calling it.
Holding of Annual General Meeting (AGM)
◼ Annual general meeting should be held once every year.
◼ First annual general meeting of the company should be held within 9 months
from the closing of the first financial year. Hence it shall not be necessary for
the company to hold any annual general meeting in the year of its
incorporation.
◼ Subsequent annual general meetings of the company should be held within
6 months from the closing of the financial year.
◼ The gap between two annual general meetings should not exceed 15
months.
Extension of validity period of AGM
In case, it is not possible for a company to hold an annual general meeting within
the prescribed time, the Registrar may, for any special reason, extend the time
within which any annual general meeting shall be held. Such extension can be for
a period not exceeding 3 months. No such extension of time can be granted by
the Registrar for the holding of the first annual general meeting.
Illustration 13
Abbeys Grocers Private Limited closed its financial year on 31 st March, 2022. When
should it hold is Annual General Meeting (AGM) for the financial year 2021-22?
Answer: According to section 96 (1) of the Companies Act, 2013, Abbeys Grocers
Private Limited should hold its annual general meeting for the financial year
2021-22 latest by 30th September 2022 unless an extension is granted by
jurisdictional Registrar of Companies for any special reason.

Illustration 14
Abbyrush Mechanics Limited was incorporated on 12th July, 2022. When should the
company hold its first Annual General Meeting (AGM)?
Answer: In the above case, the financial year of Abbyrush Mechanics Limited will
close on 31 st March, 2023. According to section 96 (1),the company must hold its
first AGM latest by 31 st December 2023 i.e. within 9 months of the close of its
financial year on 31st March 2023. If Abbyrush Mechanics Limited holds its first
AGM in this manner, it shall not be necessary for the company to hold any AGM
in the year of its incorporation.
Time and place for holding an annual general meeting: Section 96 (2) states
that every annual general meeting shall be called during business hours, i.e.,
between 9 a.m. and 6 p.m. on any day that is not a National Holiday and shall be
held either at the registered office of the company or at some other place within
the city, town or village in which the registered office of the company is situated.
Provided that annual general meeting of an unlisted company may be held at any
place in India if consent is given in writing or by electronic mode by all the
members in advance.
Provided further that the Central Government may exempt any company from the
provisions of this sub-section subject to such conditions as it may impose.
Explanation—For the purposes of this sub-section, "National Holiday" means and
includes a day declared as National Holiday by the Central Government.
Exemption to Section 8 companies:

In case of Section 8 company- In Sub-section (2) of Section 96 after the proviso
and before the explanation the following proviso shall be inserted;
Provided further that the time, date and place of each annual general meeting are
decided upon before-hand by the board of directors having regard to the
directions, if any, given in this regard by the company in its general meeting. -
Notification No. GSR 466 (E), dated 5th, June 2015.
The above-mentioned exception shall be applicable to a section 8 company which
has not committed a default in filing of its financial statements under section 137
or annual return under section 92 with the Registrar. - Notification No. GSR 584
(E), dated 13th June, 2017.

Exemption to Government companies:

In case of Government company, section 96(2) shall be read as:
‘Every annual general meeting shall be called during business hours, that is,
between 9 a.m. and 6 p.m. on any day that is not a National Holiday and shall be
held either at the registered office of the company or at such other place within
the city, town or village in which the registered office of the company is situate or
such other place as the Central Government may approve in this behalf.
Notification No. GSR 463 (E), dated 5th June, 2015 read with Notification Dated
13th June, 2017
The above-mentioned exception/ modification/ adaptation shall be applicable to

Government company which has not committed a default in filing of its financial
statements under section 137 or annual return under section 92 with the
Registrar. - Notification No. GSR 582 (E), dated 13 th June, 2017’.
POWER OF TRIBUNAL TO CALL ANNUAL GENERAL MEETING

[SECTION 97]
In case a company defaults in holding Annual General Meeting, then Section 97 of
the Companies Act, 2013 empowers Tribunal to call AGM. The provisions of
Section 97 are as under:
(1) If any default is made in holding the annual general meeting of a company
under section 96, the Tribunal may, notwithstanding anything contained in
this Act or the articles of the company, on the application of any member of
the company, call, or direct the calling of, an annual general meeting of the
company and give such ancillary or consequential directions as the Tribunal
thinks expedient:
Provided that such directions may include a direction that one member of
the company present in person or by proxy shall be deemed to constitute a
meeting.
(2) A general meeting held in pursuance of sub-section (1) shall, subject to any
directions of the Tribunal, be deemed to be an annual general meeting of
the company under this Act.
POWER OF TRIBUNAL TO CALL MEETINGS OF MEMBERS, ETC.
[SECTION 98]
(1) If for any reason it is impracticable to call a meeting of a company, other
than an annual general meeting, in any manner in which meetings of the

company may be called, or to hold or conduct the meeting of the company

in the manner prescribed by this Act or the articles of the company, the
Tribunal may, either suo motu or on the application of any director or
member of the company who would be entitled to vote at the meeting,—
(a) order a meeting of the company to be called, held and conducted in
such manner as the Tribunal thinks fit; and
(b) give such ancillary or consequential directions as the Tribunal thinks
expedient, including directions modifying or supplementing in relation
to the calling, holding and conducting of the meeting, the operation
of the provisions of this Act or articles of the company:
Provided that such directions may include a direction that one member of
the company present in person or by proxy shall be deemed to constitute a
meeting.
(2) Any meeting called, held and conducted in accordance with any order made
under sub-section (1) shall, for all purposes, be deemed to be a meeting of
the company duly called, held and conducted.
PUNISHMENT FOR DEFAULT IN COMPLYING WITH THE PROVISIONS
OF SECTION 96 TO 98 [SECTION 99]
Section 99 lists out the punishment for contravention of section 96 to 98.
Accordingly, if any default is made in holding a meeting of the company in
accordance with section 96 (i.e. AGM) or section 97 (i.e. AGM called by Tribunal)
or section 97 (a meeting of members other than AGM called by Tribunal) or in
complying with any the directions issued by the Tribunal, then the company and
every officer of the company who is in default shall be punishable with fine which
may extend to ` 1,00,000 and in the case of a continuing default, with a further
fine which may extend to ` 5,000 for every day during which the default
continues.
REPORT ON ANNUAL GENERAL MEETING [SECTION 121]
According to Section 121 of the Companies Act, 2013, every listed public
company shall prepare a report on each annual general meeting including the
confirmation to the effect that the meeting was convened, held and conducted as
per the provisions of the Act and the rules made thereunder.

A copy of the report is to be filed with the Registrar in Form No. MGT-15 within
thirty days of the conclusion of AGM along with the prescribed fee. According to
Rule 31 of the Companies (Management and Administration) Rules, 2014, the
report shall be prepared in the following manner:
(a) the report under this section shall be prepared in addition to the minutes of
the general meeting;
(b) the report shall be signed and dated by the Chairman of the meeting or in case
of his inability to sign, by any two directors of the company, one of whom shall
be the Managing Director, if there is one and company secretary of the
company;
(c) the report shall contain the details in respect of the following, namely:-
(i) the day, date, hour and venue of the AGM;
(ii) confirmation with respect to appointment of Chairman of the meeting;
(iii) number of members attending the meeting;
(iv) confirmation of Quorum;
(v) confirmation with respect to compliance of the Act and the Rules,
secretarial standards made thereunder with respect to calling,
convening and conducting the meeting;
(vi) business transacted at the meeting and result thereof;
(vii) particulars with respect to any adjournment, postponement of

meeting, change in venue; and
(viii) any other points relevant for inclusion in the report.
(d) the report shall contain fair and correct summary of the proceedings of the
meeting.
Penalty for default : If the company fails to file the report within 30 days of
conclusion of AGM, such company shall be liable to a penalty of one lakh rupees
and in case of continuing failure, with further penalty of five hundred rupees for
each day after the first during which such failure continues, subject to a maximum
of five lakh rupees and every officer of the company who is in default shall be
liable to a penalty which shall not be less than twenty-five thousand rupees and in

case of continuing failure, with further penalty of five hundred rupees for each
day after the first during which such failure continues, subject to a maximum of
one lakh rupees.
EXTRA-ORDINARY GENERAL MEETINGS [SECTION 100]

All general meetings other than annual general meetings are called extra-ordinary
general meetings (EGMs). Section 100 of the Companies Act, 2013 contains
provisions regarding the calling of EGMs.
Calling of EGM
Requisitionists
Board of
themselves, if
Directors
Board does not
on a
call
requisition
Board of
Directors
on its own
Who can call EGM
1. By Board of Directors on its own -

22 & 23
The Board may, whenever it deems fit, call an extraordinary general

meeting of the company.
22
In case of Specified IFSC Private Company - In sub-section (1) of section 100, the
“Provided that in case of a Specified IFSC private company, the Board may subject to
the consent of all the shareholders, convene its extraordinary general meeting at any
place within or outside India.”.- Notification No. 9 (E), Dated 4th January, 2017.
23
In case of Specified IFSC Public Company- In sub-section (1) of section 100, the
“Provided that in case of a Specified IFSC public company, the Board may subject to the
consent of all the shareholders, convene its extraordinary general meeting at any place
within or outside India.”. Notification No. GSR 8 (E), Dated 4th January, 2017.

Provided that an extraordinary general meeting of the company, other than

of the wholly owned subsidiary of a company incorporated outside India,
shall be held at a place within India. [Section 100 (1)]
2. By the Board of Directors at the requisition of –
(a) In the case of company having a share capital, such number of members
who hold, on the date of receipt of requisition, at least 1/10th of such
paid-up share capital of the company as on that date carries the right of
voting;
(b) In the case of company not having a share capital, such number of
members who have, on the date of receipt of requisition, at least 1/10th
of total voting power of all the members having on the said date a right
to vote. [Section 100 (2)]
The requisition shall set out the matters for the consideration of which the
meeting is to be called and shall be signed by the requisitionists and sent to
the registered office of the company. [Section 100 (3)]
Note: The Board must, within 21 days from the date of receipt of a valid
requisition, proceed to call a meeting on a day not later than 45 days from
the date of receipt of such requisition.
3. By requisitionists themselves: If the Board does not, within twenty-one
days from the date of receipt of a valid requisition in regard to any matter,
proceed to call a meeting for the consideration of that matter on a day not
later than forty-five days from the date of receipt of such requisition, the
meeting may be called and held by the requisitionists themselves within a
period of three months from the date of the requisition. [Section 100 (4)]
A meeting under sub-section (4) by the requisitionists shall be called and

held in the same manner in which the meeting is called and held by the
Board. [Section 100 (5)]
Any reasonable expenses incurred by the requisitionists in calling a meeting

under sub-section (4) shall be reimbursed to the requisitionists by the
company and the sums so paid shall be deducted from any fee or other
remuneration under section 197 payable to such of the directors who were
in default in calling the meeting. [Section 100 (6)]

Rule 17 of the Companies (Management and Administration) Rules, 2014 contain

provisions with regard to calling of EGM by requisitionists as under:
(1) The members may requisition convening of an extraordinary general

meeting in accordance with sub-section (4) of section 100, by providing
such requisition in writing or through electronic mode at least clear twenty-
one days prior to the proposed date of such extraordinary general meeting.
(2) The notice shall specify the place, date, day and hour of the meeting and
shall contain the business to be transacted at the meeting.-
Explanation.- For the purposes of this sub-rule, it is hereby clarified that

requisitionists should convene meeting at Registered Office or in the same
city or town where Registered office is situated and such meeting should be
convened on any day except National Holiday.
(3) If the resolution is to be proposed as a special resolution, the notice shall be

given as required by sub-section (2) of section 114.
(4) The notice shall be signed by all the requisitionists or by a requisitionist

duly authorised in writing by all other requisitionists on their behalf or by
sending an electronic request attaching therewith a scanned copy of such
duly signed requisition.
(5) No explanatory statement as required under section 102 need be annexed

to the notice of an extraordinary general meeting convened by the
requisitionists and the requisitionists may disclose the reasons for the
resolution(s) which they propose to move at the meeting.
(6) The notice of the meeting shall be given to those members whose names
appear in the Register of members of the company within three days on
which the requisitionists deposit with the Company a valid requisition for
calling an extraordinary general meeting.
(7) Where the meeting is not convened, the requisitionists shall have a right to
receive list of members together with their registered address and number
of shares held and the company concerned is bound to give a list of
members together with their registered address made as on twenty first day
from the date of receipt of valid requisition together with such changes, if

any, before the expiry of the forty-five days from the date of receipt of a
valid requisition.
(8) The notice of the meeting shall be given by speed post or registered post or
through electronic mode. Any accidental omission to give notice to, or the
non-receipt of such notice by, any member shall not invalidate the
proceedings of the meeting.
Illustration 15
The members of Blumove Peacocks Appliances Private Limited, holding more than
1/10th voting power of the company, requisitioned the Board of Directors to call a
general meeting on 14 th July, 2022. However, the directors did not pay any heed to
such a requisition and therefore, no general meeting was called. Discuss the
consequences of the contravention of not calling a general meeting on the
requisition of required number of members in accordance with the Companies Act,
2013.
Answer: In the above case, the requisition for calling a general meeting is made
by the sufficient number of requisitionists and therefore, the Board Directors is
required to initiate the process of calling the meeting. According to section 100
(4), if the Board does not, within 21 days from the date of receipt of a valid
requisition, proceed to call a meeting within 45 days from the date of receipt of
such requisition, then the requisitionists may themselves call and hold the
meeting. This can be done within a period of three months from the date of the
requisition. According to section 100 (5), a meeting by the requisitionists shall be
called and held in the same manner in which the meeting is called and held by
the Board of Directors.
Accordingly, the requisitionists being members of Blumove Peacocks Appliances
Private Limited can call and hold the general meeting within a period of three
months from the date of the requisition since the Board was not inclined to call
such a meeting within the stipulated time after the requisition was made.
Illustration 16
The Board of Directors of Vishnu Orchards Limited, a company having its registered
office in New Delhi, did not proceed to call a meeting despite receipt of a
requisition from the required number of requisitionists. In view of this,
requisitionists themselves decided to call the meeting to be held in Madrid, Spain on

2nd October, 2022. Discuss whether the general meeting can be convened on the
said date and place.
Keeping in view the facts of the above case, the meeting cannot be convened as
proposed to be held by the requisitionists. As per Rule 17 (2) of the Companies
(Management and Administration) Rules, 2014, the requisitionists should hold the
meeting at the registered office of the company or in the same city or town in
which the registered office is situated. In addition, the day of holding the meeting
should be a working day and not a National Holiday. It is to be noted that 2nd
October, 2022 is a National Holiday.
14. APPLICABILITY OF THIS CHAPTER TO ONE

PERSON COMPANY [SECTION 122]
Applicability of Chapter VII to One Person Company (OPC)

[Section 122]
Resolutions of If there is
Provisions of Ordinary one director
business shall AGM/EGM to be
Section 98 communicated in OPC,
and Sections be resolution of
transacted as by the Member
100 to 111 of OPC to the Board to be
shall not provided in entered in
Sub-Section Company and
apply entered in relevant
(3) of section Minutes
122 relevant
Minutes book book.
(1) Section 122 (1) of the Companies Act, 2013 states that the provisions of
section 98 and section 100 to 111 shall not apply to a One Person Company
(OPC). An overview of these sections is as under:
Section No. Heading of Section

Section 98 Power of Tribunal to call meetings of members, etc.
Section 100 Calling of EGM
Section 101 Notice of meeting

Section 102 Statement to be annexed to notice

Section 103 Quorum for meetings
Section 104 Chairman of meetings
Section 105 Proxies
Section 106 Restrictions on voting rights
Section 107 Voting by show of hands
Section 108 Voting through electronic means
Section 109 Demand for poll
Section 110 Postal ballot
Section 111 Circulation of Members’ Resolution
(2) The ordinary businesses as mentioned under section 102 (2) (a), which a
company is required to transact at an AGM, shall be transacted in the case
of One Person Company, as provided in sub-section (3). [Section 122 (2)]
(3) For the purposes of section 114, any business which is required to be
transacted at an annual general meeting or other general meeting of a
company by means of an ordinary or special resolution, it shall be sufficient
if, in case of One Person Company, the resolution is communicated by the
member to the company and entered in the minutes-book required to be
maintained under section 118 and signed and dated by the member and
such date shall be deemed to be the date of the meeting for all the
purposes under this Act. [Section 122 (3)]
In other words, following procedure shall be adopted for any business to be
transacted at an AGM or any other meeting (i.e. EGM) of OPC:
(i) The resolution of AGM or EGM shall be communicated by the
member to the company;
(ii) The said resolution shall be entered in the relevant minutes book.
(iii) The minutes book shall be signed and dated by the member.
Note: The date on which the minutes book is signed by the member shall be
deemed to be the date of the meeting for all the purposes.

(4) Notwithstanding anything in this Act, where there is only one director on
the Board of Director of a One Person Company, any business which is
required to be transacted at the meeting of the Board of Directors of a
company, it shall be sufficient if, in case of such One Person Company, the
resolution by such director is entered in the minutes book required to be
maintained under section 118 and signed and dated by such director and
such date shall be deemed to be the date of the meeting of the Board of
Directors for all the purposes under this Act. [Section 122 (4)]
Simply stated, in case OPC has only one director, following procedure shall
be adopted for any business to be transacted at the meeting of Board of
Directors:
(i) The resolution by such director shall be entered in the relevant

minutes book.
(ii) The minutes book shall be signed and dated by such director.
Note: The date on which the minutes book is signed by the director shall be
deemed to be the date of the meeting for all the purposes.
Penalty
If any default is made in compliance with any of the provisions of this rule, the
company and every officer or such other person who is in default shall be
punishable with fine which may extend to five thousand rupees and where the
contravention is a continuing one, with a further fine which may extend to five
hundred rupees for every day after the first during which such contravention
continues. [Rule 30]
SUMMARY
◼ The Chapter discusses about the registers and returns to be kept and
maintained by the company as per the provisions of the Companies Act,
2013 and the types of meetings to be held in accordance with the Act. It
also discusses the terms relevant to properly convening and conducting of
the meetings.
◼ Section 89 states that a person holding beneficial interest in the shares of a
company shall intimate the company about such interest in Form No. MGT–

4 or MGT-5, as applicable, and thereafter, the company shall intimate the

RoC about the interest of member within 30 days in Form No. MGT–6.
◼ Section 90 requires a significant beneficial owner to make a declaration to
the company specifying the nature of his interest and other prescribed
particulars.
◼ Section 91 deals with the time limits within which the registers of the
company are allowed to be closed and also mentions the penalty for
contravention. It states that the registers may be closed for a maximum of 30
days at a time and 45 days in aggregate in a year.
◼ Section 92 provides that every company shall file its Annual Return in Form
No. MGT-7 except One Person Company (OPC) and Small Company. One
Person Company and Small Company shall file Annual Return from the
financial year 2020-2021 onwards in Form No. MGT-7A which is an abridged
form of Annual Return.
◼ Section 92 provides that annual return is to be filed after the conclusion of
each Annual General Meeting and specifies the contents to be included in
the annual return.
◼ The annual return shall be signed by a director of the company and the
Company Secretary; and in case, there is no Company Secretary, by a
Company Secretary in Practice.
◼ In case of One Person Company and small company, the annual return shall
be signed by the Company Secretary, or where there is no Company
Secretary, by the director of the company.
◼ Section 94 describes that the registers and returns and other documents of the
company shall be kept at the registered office of company. However, they can
also be kept at any other place where more than 1/10th of the total members
reside but the same should be approved by way of a special resolution.
◼ There are two types of general meetings that are held within the company –
Annual General Meeting as mentioned in section 96 and Extra-Ordinary
General Meeting as stated in section 100.
◼ Section 96 discusses about the annual general meeting (AGM) to be held in a
company every year and prescribes that the AGM shall be held within 6

months from the date of the closing of the financial year and that the gap
between two AGMs shall not exceed 15 months.
◼ In case of a newly incorporated company, first Annual General Meeting shall

be held within 9 months from the closing of the first financial year.
Accordingly, the company is not required to hold any annual general
meeting in the year of its incorporation.
◼ The AGM shall be held within the business hours and on a working day, i.e.
other than National Holidays.
◼ In case of default in holding Annual General Meeting, the Tribunal is

empowered to call, or direct the calling of, an annual general meeting of the
company. The Tribunal may give such ancillary or consequential directions as
it thinks expedient.
◼ If for any reason it is impracticable to call a meeting of a company other
than AGM, the Tribunal may, either suo motu or on the application of any
director or member, order a meeting of the company to be called, held and
conducted in such manner as it thinks fit.
◼ Listed public companies shall file a report on AGM with the RoC in MGT–15
within 30 days of the AGM.
◼ Section 100 prescribes the provisions for holding an Extra-ordinary General
Meeting (EGM) and states that either the board of directors or specified
number of members making a requisition to the Board, are authorised to call
an EGM.
◼ A notice is required to be sent to the members and others for calling the
general meetings. The notice shall specify the place, date, day and the hour
of the meeting and shall also contain a statement of the business to be
transacted at such meeting.
◼ Quorum is the minimum number of members who must be personally

present in order to constitute a valid meeting.
◼ Quorum needs to be present not only at the time of commencement of the
meeting but also while transacting business.
◼ A Chairman needs to be appointed for the meetings. In the absence of any
contrary provision in the Articles of a company, the members personally

present at the meeting shall elect one of themselves to be the Chairman

thereof on a show of hands.
◼ Any member of a company who is entitled to attend and vote at a meeting
of the company shall be entitled to appoint another person as a proxy to
attend and vote at the meeting on his behalf. The appointment of proxy shall
be in Form No. MGT-11.
◼ At any general meeting, a resolution put to vote of the meeting shall be

decided on a show of hands except where a poll is demanded or the voting
is carried out electronically.
◼ There are certain items of business which need to be transacted only by

means of voting through a postal ballot.
◼ If a resolution is assented to by the requisite majority of the shareholders by

means of postal ballot, it shall be deemed to have been duly passed at a
general meeting convened in that behalf.
◼ The members of a company have a right to propose resolutions for

consideration at the general meetings.
◼ A resolution can be ordinary resolution or a special resolution. Ordinary

resolution can be passed by simple majority whereas special resolution
requires minimum 75% majority for its passing.
◼ A resolution passed at an adjourned meeting shall be treated as having been

passed on the day on which it was actually passed and not on any earlier
date.
◼ Copies of specified resolutions and agreements are required to be filed with

the Registrar of Companies.
◼ As regards minutes, every company shall prepare, sign and keep minutes of
every general meeting including the meeting called by the requisitionists,
every resolution passed by postal ballot and every meeting of its Board of
Directors or of every committee of the Board.
◼ The minutes kept in accordance with the prescribed provisions shall serve as
the evidence of the proceedings recorded therein.

◼ The books containing the minutes of the proceedings of any general

meeting shall be open for inspection during business hours by any member,
without charge, subject to certain reasonable restrictions. At least 2 hours in
each business day shall be allowed for inspection.
◼ Any document, record, register or minute, etc., required to be kept or

allowed to be inspected or copies given to any person by a company, may
be kept or inspected or copies given, as the case may be, in electronic form.
TEST YOUR KNOWLEDGE

1. The Annual General Meeting (AGM) of Green Limited was held on 31.8.2022.
Suppose the Chairman of the company after two days of AGM went abroad
for next 31 days. Due to the unavailability of the Chairman, within time
period prescribed for submission of copy of report of AGM with the registrar,
the report as required was signed by two Directors of the company, of which
one was additional Director of the company. Comment on the signing of this
report of AGM.
(a) Yes, the signing is in order as the report can be signed by any director in
the absence of Chairman.
(b) No, the signing is not in order as only the Chairman is authorised to
sign the report
(c) Yes, the signing is in order, as in the absence of Chairman at least two
directors should sign the report.
(d) No, the signing is not in order, since in case the Chairman is unable to
sign, the report shall be signed by any two directors of the company,
one of whom shall be the Managing director, if there is one and
company secretary of the company.
2. The AGM shall be called by giving 21 clear days’ notice. However, it can be
called by giving shorter notice if members entitled to vote at that meeting
give their consent in writing or by electronic mode. In such cases how many
members have to give their consent?

(a) 75% of members entitled

(b) 90% of members entitled
(c) 91% of members entitled
(d) 95% of members entitled

3. Which among the following companies is not required to provide its members
the facility to exercise right to vote by electronic mode under the provisions of
the Companies Act, 2013?
(a) B Limited, whose equity shares (the company is having both equity as
well as preference shares) are listed on a recognised stock exchange.
(b) A Limited, whose equity shares (only type of share the company is
having) are listed on a recognised stock exchange
(c) C Limited, whose preference shares (the company is having both equity
as well as preference shares) are listed on a recognised stock exchange
(d) D Limited, whose equity shares as well as preference shares are listed on
a recognised stock exchange.
1. In a General meeting of Alpha Software Limited, the chairman directed to
exclude certain matters detrimental to the interest of the company from the
minutes, Mukesh, a shareholder contended that the minutes of the meeting
must contain fair and correct summary of the proceedings thereat. Decide,
whether the contention of Mukesh is maintainable under the provisions of the
Companies Act, 2013?
2. A General Meeting was scheduled to be held on Friday, 15th April, 2022 at
3.00 P.M. As per the notice the members who are unable to attend a meeting
in person can appoint a proxy and the proxy forms duly filled should be sent
to the company so as to reach at least 48 hours before the meeting. Mr. X, a
member of the company appoints Mr. Y as his proxy and the proxy form dated
09-04-2022 was deposited by Mr. Y with the company at its registered Office
on 11-04-2022. Similarly, another member Mr. W also gives two separate
proxies to two individuals named Mr. M and Mr. N. In the case of Mr. M, the
proxy dated 12-04-2022 was deposited with the company on the same day

and the proxy form in favour of Mr. N was deposited on 14-04-2022. All the
proxies viz., Y, M and N were present before the meeting.
According to the provisions of the Companies Act, 2013, who would be the
persons allowed to represent as proxies for members X and W respectively?
3. M. H. Mechanics Company Limited served a notice of General Meeting upon
its shareholders. The notice stated that the issue of sweat equity shares would
be considered at such meeting. Mr. ‘A’, a shareholder of the M. H. Mechanics
Company Limited complains that the issue of sweat equity shares was not
specified fully in the notice. Is the notice issued by M. H. Mechanics Company
Limited regarding issue of sweat equity shares valid according to the
provisions of the Companies Act, 2013? Explain in detail.
4. Tulip Gardens Ltd. maintains its Register of Members at its registered office in
Mumbai. A group of members residing in Kolkata wants to keep the register
of members at Kolkata.
(i) Keeping in view the provisions of the Companies Act, 2013, explain
whether Tulip Gardens Ltd. can keep the Registers and Returns at
Kolkata.
(ii) Whether Mr. Rich, a director holding only 400 shares of worth ` 4000,
has the right to inspect the Register of Members?
5. Examine the validity of the following situation with reference to the relevant
provisions of the Companies Act, 2013:
The Board of Directors of Shreya Transporters and Logistics Ltd. called an
extra-ordinary general meeting upon the requisition of members. However,
the meeting was adjourned on the ground that the quorum was not present at
the meeting. Advise the company.
6. Zorab Garments Limited served a notice of General Meeting upon its
members. The notice stated that a resolution to increase the share capital of
the company would be considered at such meeting. Roshni, a shareholder of
the company complained that the amount of the proposed increase was not
specified in the notice. Is the notice valid?
7. Examine the validity of the following decisions of the Board of Directors with
reference of the provisions of the Companies Act, 2013.

(i) In an Annual General Meeting of a company having share capital, 80

members present in person or by proxy holding more than 1/10 th of the
total voting power, demanded for poll. The chairman of the meeting
rejected the request on the ground that only the members present in
person can demand for poll.
(ii) In an annual general meeting, during the process of poll, the members
who earlier demanded for poll want to withdraw it. The chairman of the
meeting rejected the request on the ground that once poll started, it
cannot be withdrawn.
8. Surya, a shareholder, gives a notice for inspecting proxies, five days before the
meeting is scheduled and approaches the company two days before the
scheduled meeting for inspecting the same. What is the legal position in
respect of demand for inspection of proxies by Surya as per the provisions of
the Companies Act, 2013
9. There are certain entities to which the Companies (Significant Beneficial
Owners) Rules, 2018 are not applicable. List them.
10. Infotech Ltd. was incorporated on 1.4.2018. No General Meeting of the
company has been held till 30.4.2020. Discuss the provisions of the
Companies Act, 2013 regarding the time limit for holding the first annual
general meeting of the Company and the power of the Registrar to grant
extension of time for the First Annual General Meeting.
11. The Articles of Association of DJA Water Tanks Ltd. require the personal
presence of 7 members to constitute quorum of General Meetings. The
company has 965 members as on the date of meeting. The following persons
were present in the extra-ordinary general meeting to consider the
appointment of Managing Director:
(i) A is the representative of Governor of Uttar Pradesh.
(ii) B and C are preference shareholders,

(iii) D is representing Y Ltd. and Z Ltd.
(iv) E, F, G and H are proxies of shareholders.
Could it be said that the quorum was present in the meeting?

12. What do you mean by Proxy? Explain the provisions relating to appointment
of proxy under the Companies Act, 2013.
13. Super Mart Limited called its AGM in order to lay down the financial
statements for the approval of the shareholders. Due to want of Quorum, the
meeting was cancelled. The directors did not file the annual returns with the
Registrar. The directors were of the opinion that the time for filing of retur ns
within 60 days from the date of AGM would not apply, as AGM was cancelled.
Has the company contravened the provisions of Companies Act, 2013? If the
company has contravened the provisions of the Act, how will it be penalized?
14. Madurai Bakestry Ltd. issued a notice for holding of its Annual General
Meeting on 7 th September, 2022. The notice was posted to the members on
16th August, 2022. Some members of the company alleged that the company
had not complied with the provisions of the Companies Act, 2013 wit h regard
to the period of notice and as such the meeting was not valid. Referring to
the provisions of the Act, decide:
(i) Whether the meeting has been validly called?
(ii) If there is a shortfall, state and explain by how many days does the
notice fall short of the statutory requirement?
(iii) Can the delay in giving notice be condoned?
15. KMN Cables Ltd. scheduled its Annual General Meeting to be held on 15th
September, 2022 at 11:00 A.M. The company has 900 members. On the
scheduled date of AGM following persons were present by 11:30 A.M.
1. P1, P2 & P3 shareholders
2. P4 representing ABC Ltd.
3. P5 representing DEF Ltd.
4. P6 & P7 as proxies of the shareholders
(i) Examine with reference to relevant provisions of the Companies
Act, 2013, whether quorum was present in the meeting.
(ii) What will be your answer if P4 representing ABC Ltd., reached in
the meeting after 11:30 A.M.?
(iii) In case lack of Quorum, discuss the provisions as applicable for an
adjourned meeting in terms of date, time & place.

What happens if there is no Quorum at the adjourned meeting?

16. As a matter of fact, the usual time allowed for making entries in the register
of members or register of debenture-holders or register of other security
holders is seven days after the Board of Directors or its committee grants its
approval. There are certain events, on the happening of which the entries can
be made even after seven days. Which are those events?
17. With a view to transact some urgent business, Ratna, Rimpi and Ratnesh, the
three directors of Shilpkaar Constructions Limited are desirous of calling a
general meeting of shareholders by giving shorter notice than 21 days’ clear
notice. The fourth director, Nilesh is of the opinion that such an action will
attract penalty provisions since there is contravention. The paid-up share
capital of the company is Rs. 30 crores divided into 3 crores shares of Rs. 10
each. Keeping in view the applicable provisions of the Companies Act, 2013,
discuss regarding the possibility of calling a general meeting by giving shorter
notice.
18. Miraj Sugar Mills Limited held its Annual General Meeting on September 15,
2022. The meeting was presided over by Mr. Venkat, the Chairman of the
Board of Directors of the company. On September 17, 2022, Mr. Venkat, the
Chairman, without signing the minutes of the meeting, left India to look after
his father who fell sick in London. Referring to the provisions of the
Companies Act, 2013, examine the manner in which the minutes of the above
meeting are to be signed in the absence of Mr. Venkat and by whom.
19. Shikhar Cement Limited passed two resolutions by means of postal ballot.
Keeping in view the relevant provisions of the Companies Act, 2013, you are
required to advise the directors of the company regarding the provisions
applicable for making entries in the minutes book including the time limit
within which the entries must be made.
20. The paid-up share capital of Disha Home Appliances Limited is Rs. 8 crores
divided into 80 lacs shares of Rs. 10 each. The directors of the company would
like to know the circumstances under which the Annual Return of the
company shall be required to be certified by a company secretary in practice.
21. Prince Auto-parts Limited, a listed company, has recently concluded its
Annual General Meeting. As a statutory requirement, it is obligatory on its

part to file with the jurisdictional Registrar of Companies a copy of the Report
on its AGM.
(i) State within how much time it is required to file the said Report.
(ii) In case Prince Auto-parts Limited fails to file the Report on its AGM
within the specified time, state the penalty to which the company and
also its every officer who is in default shall be liable for such failure.
ANSWERS
1. (d) No, the signing is not in order, since in case the Chairman
is unable to sign, the report shall be signed by any two
directors of the company, one of whom shall be the
Managing director, if there is one and company secretary
of the company.
2. (d) 95% of members entitled
3. (c) C Limited, whose preference shares (the company is having
both equity as well as preference shares) are listed on a
recognised stock exchange

1. Under Section 118 (5) of the Companies Act, 2013, there shall not be
included in the Minutes of a meeting, any matter which, in the opinion of
the Chairman of the meeting:
(i) is or could reasonably be regarded as defamatory of any person;
(ii) is irrelevant or immaterial to the proceeding; or
(iii) is detrimental to the interests of the company;
Further, under section 118(6) the chairman shall exercise absolute discretion
in regard to the inclusion or non-inclusion of any matter in the Minutes on
the grounds specified in sub-section (5) of section 118.
Hence, in view of the above, the contention of Mukesh, a shareholder of
Alpha Limited is not valid because the Chairman has absolute discretion on

the inclusion or exclusion of any matter in the minutes for aforesaid

reasons.
2. A Proxy is an instrument in writing executed by a shareholder authorizing
another person to attend a meeting and to vote thereat on his behalf in his
absence. As per the provisions of Section 105 of the Companies Act, 2013,
every shareholder who is entitled to attend and vote has a statutory right to
appoint another person as his proxy. It is not necessary that the proxy be a
member of the company. Further, any provision in the articles of association
of the company requiring instrument of proxy to be lodged with the
company more than 48 hours before a meeting shall have effect as if 48
hours had been specified therein. The members have a right to revoke the
proxy’s authority by voting himself before the proxy has voted but once the
proxy has voted the member cannot retract his authority.
Where two proxy instruments by the same shareholder are lodged in such a
manner that one is lodged before and the other after the expiry of the date
fixed for lodging proxies, the former will be counted.
Thus, in case of member X, the proxy Y will be permitted to vote on his
behalf as form for appointing proxy was submitted within the permissible
time.
However, in the case of Member W, the proxy M (and not Proxy N) would be
permitted to vote as the proxy authorizing N to vote was deposited in less
than 48 hours before the meeting.
3. Under section 102 (2) (b) of the Companies Act, 2013, in the case of any
meeting other than an Annual General Meeting, all business transacted
thereat shall be deemed to be special business.
Further under section 102 (1) a statement setting out the following material
facts concerning each item of special business to be transacted at a general
meeting, shall be annexed to the notice calling such meeting:
(a) the nature of concern or interest, financial or otherwise, if any, in
respect of each items, of every director and the manager, if any or
every other key managerial personnel and relatives of such persons;
and

(b) any other information and facts that may enable members to
understand the meaning, scope and implications of the items of
business and to take decision thereon.
Thus, the objection of the member is valid since the complete details about
the issue of sweat equity were required to be sent with the notice of
meeting. The notice is, therefore, cannot be said to be a valid one when the
provisions of Section 102 of the Companies Act, 2013 are considered.
4. (i) Maintenance of the Register of Members etc.: As per section 94(1)
of the Companies Act, 2013, the registers required to be kept and
maintained by a company under section 88 and copies of the annual
return filed under section 92 shall be kept at the registered office of
the company:
Provided that such registers or copies of return may also be kept at
any other place in India in which more than one-tenth of the total
number of members entered in the register of members reside, if
approved by a special resolution passed at a general meeting of the
company.
So, Tulip Ltd. can also keep the registers and returns at Kolkata after
compliance with the above provisions, provided more than one-tenth
of the total number of members entered in the register of
members reside in Kolkata.
(ii) As per section 94(2) of the Companies Act, the registers and their
indices, except when they are closed under the provisions of this Act,
and the copies of all the returns shall be open for inspection by any
member, debenture-holder, other security holder or beneficial owner,
during business hours without payment of any fees and by any other
person on payment of such fees as may be prescribed.
Accordingly, a director Mr. Rich, who is a shareholder of the company,
has a right to inspect the Register of Members during business hours
without payment of any fees, as per the provisions of this section.
5. According to section 100 (2) of the Companies Act 2013, the Board of
directors must convene a general meeting upon requisition made by the
stipulated minimum number of members.

As per Section 103 (2) (b) of the Companies Act, 2013, if the quorum is not
present within half an hour from the appointed time for holding a meeting
of the company, the meeting, if called on the requisition of members, shall
stand cancelled. Therefore, the meeting stands cancelled and the stand
taken by the Board of Directors to adjourn it, is not proper and valid.
6. Under section 102 (2) (b) of the Companies Act, 2013, in the case of any
general meeting other than an AGM, all business transacted thereat shall be
deemed to be special business.
Further under section 102 (1), a statement setting out the following material
facts concerning each item of special business to be transacted at a general
meeting, shall be annexed to the notice calling such meeting, namely:—
(a) the nature of concern or interest, financial or otherwise, if any, in
respect of each items, of:
(i) every director and the manager, if any;
(ii) every other key managerial personnel; and
(iii) relatives of the persons mentioned in sub-clauses (i) and (ii);
(b) any other information and facts that may enable members to
understand the meaning, scope and implications of the items of
business and to take decision thereon.
Thus, the objection of the shareholder is valid since the details of the item
to be considered at the general meeting are not fully disclosed. The
information about the amount is a material fact with reference to the
proposed increase of share capital. The notice is, therefore, not a valid
notice considering the provisions of section 102 of the Companies Act,
2013.
7. Section 109 of the Companies Act, 2013 provides for the demand of poll
before or on the declaration of the result of the voting on any resolution on
show of hands.
Accordingly, section 109 (1) lays down as under:
Before or on the declaration of the result of the voting on any resolution on
show of hands, a poll may be ordered to be taken by the Chairman of the

meeting on his own motion, and shall be ordered to be taken by him on a

demand made in that behalf:-
(a) In the case of a company having a share capital, by the members

present in person or by proxy, where allowed, and having not less
than one-tenth of the total voting power or holding shares on which
an aggregate sum of not less than five lakh rupees or such higher
amount as may be prescribed has been paid-up; and
(b) in the case of any other company, by any member or members
present in person or by proxy, where allowed, and having not less
than one tenth of the total voting power.
Withdrawal of the demand for poll: According to section 109 (2), the
demand for a poll may be withdrawn at any time by the persons who made
the demand.
Hence, on the basis on the above provisions of the Companies Act, 2013:
(i) The chairman cannot reject the demand for poll subject to the
provisions contained in the articles of company.
(ii) The chairman cannot reject the request of the members for withdrawal
of the demand for poll.
8. Under section 105 (8) of the Companies Act, 2013 every member entitled to
vote at a meeting of the company, or on any resolution to be moved
thereat, shall be entitled during the period beginning twenty-four hours
before the time fixed for the commencement of the meeting and ending
with the conclusion of the meeting, to inspect the proxies lodged, at any
time during the business hours of the company, provided not less than
three days’ notice in writing of the intention so to inspect is given to the
company.
In the given case, Surya has given a proper notice. Therefore, validity of
notice cannot be denied.
However, such inspection can be undertaken only during the period
beginning 24 hours before the time fixed for the commencement of the
meeting and ending with the conclusion of the meeting.

In view of above provision, Surya can undertake the inspection only during
the above-mentioned period and not two days prior to the meeting.
9. Rule 8 of the Companies (Significant Beneficial Owners) Rules, 2018 (as
amended by the Companies (Significant Beneficial Owners) Amendment
Rules, 2019, w.e.f. 8-2-2019) states that the ‘SBO’ Rules shall not be made
applicable to the extent the shares of the Reporting Company are held by
following entities:
(a) the Investor Education and Protection Fund Authority [constituted
under section 125 (5)];
(b) its holding reporting company provided that the details of such
holding reporting company shall be reported in Form No. BEN-2;
(c) the Central Government, State Government or any local authority;
(d) (i) a reporting company; or
(ii) a body corporate; or
(iii) an entity,
controlled wholly or partly by the Central Government and/ or State
Government(s);
(e) Securities and Exchange Board of India (SEBI) registered Investment
Vehicles such as mutual funds, alternative investment funds (AIFs),
Real Estate Investment Trusts (REITs) and Infrastructure Investment
Trusts (InVITs) regulated by SEBI;
(f) Investment Vehicles regulated by Reserve Bank of India, or Insurance

Regulatory and Development Authority of India, or Pension Fund
Regulatory and Development Authority.
10. According to Section 96 of the Companies Act, 2013, every company shall
be required to hold its first Annual General Meeting within a period of 9
months from the date of closing of its first financial year.
The first financial year of Infotech Ltd is for the period 1st April 2018 to 31st
March 2019, the first Annual General Meeting (AGM) of the company should
be held on or before 31st December, 2019.

The section further provides that the Registrar may, for any special reason,
extend the time within which any Annual General Meeting, other than the
first Annual General Meeting, shall be held, by a period not exceeding three
months.
Thus, the first AGM of Infotech Ltd. should have been held on or before 31st
December, 2019. Further, in case of first AGM, the Registrar of Companies does
not have the power to grant extension of any time limit.
11. According to section 103 of the Companies Act, 2013, unless the articles of
the company provide for a larger number in case of a public company, five
members personally present if the number of members as on the date of
meeting is not more than one thousand, shall be the quorum.
In this case the quorum for holding a general meeting is 7 members to be

personally present (higher of 5 or 7). For the purpose of quorum, only those
members are counted who are entitled to vote on resolution proposed to
be passed in the meeting.
Again, only members present in person and not by proxy are to be counted.
Hence, proxies whether they are members or not will have to be excluded
for the purpose of quorum.
If a company is a member of another company, it may authorize a person by
resolution to act as its representative at a meeting of the latter company,
then such a person shall be deemed to be a member present in person and
counted for the purpose of quorum. Where two or more companies which
are members of another company, appoint a single person as their
representative then each such company will be counted as quorum at a
meeting of the latter company.
Further, the President of India or Governor of a State, if he is a member of a
company, may appoint such a person as he thinks fit, to act as his
representative at any meeting of the company. A person so appointed shall
be deemed to be a member of such a company and thus considered as
member personally present.
In view of the above there are only three members personally present.
‘A’ will be included for the purpose of quorum. B & C have to be excluded
for the purpose of quorum because they represent the preference shares

and since the agenda being the appointment of Managing Director, their
rights cannot be said to be directly affected and therefore, they shall not
have voting rights. D will have two votes for the purpose of quorum as he
represents two companies ‘Y Ltd.’ and ‘Z Ltd.’ E, F, G and H are not to be
included as they are not members but proxies representing the members.
Thus, it can be said that the requirement of quorum has not been met and
the composition shall not constitute a valid quorum for the meeting.
12. A proxy is an instrument in writing executed by a shareholder authorising
another person to attend a meeting and to vote thereat on his behalf in his
absence. The term also applies to the person so appointed and in such case
a proxy is a person appointed by a member of a company, to attend the
general meeting of the company and vote thereat on his behalf.
The various provisions relating to the appointment of a proxy are contained

in section 105 of the Companies Act, 2013. They are as under:
1. Under section 105 (1) any member of a company entitled to attend
and vote at a meeting of the company shall be entitled to appoint
another person as a proxy to attend and vote at the meeting on his
behalf.
2. A proxy shall not have the right to speak at such meeting and shall
not be entitled to vote except on a poll. This means that a proxy
cannot vote on a resolution by show of hands.
3. The Central Government may prescribe a class or classes of companies

whose members shall not be entitled to appoint another person as a
proxy.
4. Under section 105 (6) the instrument appointing a proxy shall be in
writing; and be signed by the appointer or his attorney duly
authorised in writing or, if the appointer is a body corporate, be under
its seal or be signed by an officer or an attorney duly authorised by it.
5. Under section 105 (7) an instrument appointing a proxy, if in the form
as may be prescribed, shall not be questioned on the ground that it
fails to comply with any special requirements specified for such
instrument by the articles of a company.

13. According to section 92 (4) of the Companies Act, 2013, every company
shall file with the Registrar a copy of the annual return, within sixty days
from the date on which the annual general meeting is held or where no
annual general meeting is held in any year within sixty days from the date
on which the annual general meeting should have been held together with
the statement specifying the reasons for not holding the annual general
meeting.
Sub-section (5) of Section 92 also states that if any company fails to file its
annual return under sub-section (4), before the expiry of the period
specified therein, such company and its every officer who is in default shall
be liable to a penalty of ten thousand rupees and in case of continuing
failure, with further penalty of one hundred rupees for each day during
which such failure continues, subject to a maximum of two lakh rupees in
case of a company and fifty thousand rupees in case of an officer who is in
default.
In the instant case, the opinion of the directors that since the AGM was
cancelled, the provisions requiring the company to file annual returns within
60 days from the date of AGM would not apply, is not correct.
In the above case, the annual general meeting of Super Mart Limited should
have been held within a period of six months, from the date of closing of
the financial year but it did not take place. Thus, the company has
contravened the provisions of section 92 of the Companies Act, 2013 for not
filing the annual return and shall attract the penal provisions along with
every officer of the company who is in default as specified in Section 92 (5)
of the Act.
14. According to section 101(1) of the Companies Act, 2013, a general meeting
of a company may be called by giving not less than clear twenty-one days'
notice either in writing or through electronic mode in such manner as may
be prescribed.
Also, it is to be noted that 21 clear days mean that the date on which notice
is served and the date of meeting are excluded for sending the notice.
Further, Rule 35(6) of the Companies (Incorporation) Rules, 2014, provides
that in case of delivery by post, such service shall be deemed to have been

effected - in the case of a notice of a meeting, at the expiration of forty

eight hours after the letter containing the same is posted.
Hence, in the given question:
(i) A 21 days’ clear notice must be given. In the given question, only 19
clear days’ notice is served (after excluding 48 hours from the time of
its posting and the day of sending and date of meeting). Therefore,
the meeting was not validly called.
(ii) As explained in (i) above, notice falls short by 2 days.
(iii) The Companies Act, 2013 does not provide anything specific
regarding the condonation of delay in giving of notice. Hence, the
delay in giving the notice calling the meeting cannot be condoned.
15. According to section 103 of the Companies Act, 2013, unless the articles of
the company provide for a larger number, the quorum for the meeting of a
Public Limited Company shall be 5 members personally present, if number
of members is not more than 1000.
(i) (1) P1, P2 and P3 will be counted as three members.
(2) If a company is a member of another company, it may authorize

a person by resolution to act as its representative at a meeting
of the latter company, then such a person shall be deemed to be
a member present in person and counted for the purpose of
quorum. Hence, P4 and P5 representing ABC Ltd. and DEF Ltd.
respectively will be counted as two members.
(3) Only members present in person and not by proxy are to be

counted. Hence, proxies whether they are members or not will
have to be excluded for the purposes of quorum. Thus, P6 and
P7 shall not be counted as constituting quorum.
In the light of the provision of the Act and the facts of the
question, it can be concluded that the quorum for Annual
General Meeting of KMN Cables Ltd. is 5 members personally
present. Total 5 members (P1, P2, P3, P4 and P5) were present.
Hence, the requirement of quorum is fulfilled.

(ii) The section further states that, if the required quorum is not present
within half an hour, the meeting shall stand adjourned for the next
week at the same time and place or such other time and place as
decided by the Board of Directors.
Since, P4 is an essential part for meeting the requirement of quorum

and he reaches after 11:30 A.M. (i.e. after half an hour from the
starting time of the meeting), the meeting will be adjourned as
provided above.
(iii) In case of lack of quorum, the meeting will be adjourned as provided

in section 103 of the Companies Act, 2013.
In case of the adjourned meeting or change of day, time or place of

meeting, the company shall give not less than 3 days' notice to the
members either individually or by publishing an advertisement in the
newspaper.
(iv) Where quorum is not present in the adjourned meeting also within
half an hour, then the members present shall form the quorum.
16. In this respect Rules 5 (7) and 5 (8) of the Companies (Management and
Administration) Rules, 2014 are relevant.
Rule 5 (7) specifies that in case of companies whose securities are listed on
a stock exchange in or outside India, the particulars of any pledge, charge,
lien or hypothecation created by the promoters in respect of any securities
of the company held by the promoter including the names of
pledgee/pawnee and any revocation therein shall be entered in the register
within fifteen days from such an event.
According to Rule 5 (8), if promoters of any listed company, which has

formed a joint venture company with another company, have pledged or
hypothecated or created charge or lien in respect of any security of the
listed company in connection with such joint venture company, the
particulars of such pledge, hypothecation, charge and lien shall be entered
in the register members of the listed company within fifteen days from
such an event.

Thus, in the above two cases, it is permitted for the listed companies to
make entries relating to pledge, charge, lien or hypothecation in the
registers within fifteen days from the happening of such an event.
17. Normally, general meetings are to be called by giving at least 21 clear days’
notice as required by Section 101 (1) of the Companies Act, 2013.
As an exception, first proviso to Section 101 (1) states that a general meeting
may be called after giving shorter notice than that specified in sub-section (1)
of Section 101, if consent, in writing or by electronic mode, is accorded
thereto—
(i) in the case of an annual general meeting, by not less than ninety-five
per cent. of the members entitled to vote thereat; and
(ii) in the case of any other general meeting, by members of the

company—
(a) holding, if the company has a share capital, majority in number of
members entitled to vote and who represent not less than ninety-
five per cent. of such part of the paid-up share capital of the
company as gives a right to vote at the meeting; or
(b) having, if the company has no share capital, not less than ninety-
five per cent. of the total voting power exercisable at that
meeting.
Second proviso to Section 101 (1) clarifies that where any member of a
company is entitled to vote only on some resolution or resolutions to be
moved at a meeting and not on the others, those members shall be taken
into account for the purposes of sub section (1) of section 101 in respect of
the former resolution or resolutions and not in respect of the latter.
In view of the above provisions, Shilpkaar Constructions Limited is permitted
to call the requisite general meeting by giving a shorter notice. However, the
members holding at least ninety-five per cent of the paid-up share capital of
the company which gives them a right to vote at the meeting must consent
to the shorter notice.

Hence, the opinion of Nilesh that there shall be contravention of relevant

provisions attracting penalty if a general meeting is called at shorter notice
than usually required is not correct.
18. Section 118 of the Companies Act, 2013 provides that every company shall
prepare, sign and keep minutes of proceedings of every general meeting,
including the meeting called by the requisitionists and all proceedings of
meeting of any class of shareholders or creditors or Board of Directors or
committee of the Board and also resolution passed by postal ballot within
thirty days of the conclusion of every such meeting concerned. Minutes kept
shall be evidence of the proceedings recorded in a meeting.
By virtue of Rule 25 of the Companies (Management and Administration )
Rules 2014 read with section 118 of the Companies Act, 2013 each page of
every such book shall be initialled or signed and the last page of the record
of proceedings of each meeting or each report in such books shall be dated
and signed by, in the case of minutes of proceedings of a general meeting,
by the Chairman of the same meeting within the aforesaid period of thirty
days or in the event of the death or inability of that Chairman within that
period, by a director duly authorized by the Board for the purpose.
Therefore, the minutes of the meeting referred to in the case given above
can be signed in the absence of Mr Venkat, by any other director also who
is authorized by the Board.
19. Section 118 of the Companies Act, 2013 requires a company to make entries
of resolutions passed by means of postal ballot in the minutes book.
Rule 25 (1) (b) (ii) of the Companies (Management and Administration)
Rules, 2014 states that in case of every resolution passed by postal ballot, a
brief report on the postal ballot conducted including the resolution
proposed, the result of the voting thereon and the summary of the
scrutinizer’s report shall be entered in the minutes book of general
meetings along with the date of such entry within thirty days from the date
of passing of resolution.
Accordingly, the directors of Shikhar Cement Limited are advised to keep
following points under consideration while entering resolutions passed by
means of postal ballot in the minutes book of general meetings:

(i) there should be entered a brief report on the postal ballot conducted
including the resolution proposed.
(ii) there should be entered the result of the voting made by the
shareholders in respect of resolution.
(iii) there should be entered the summary of the scrutinizer’s report.
(iv) there should be entered the date of making entry.
Further, the directors must ensure that the entries in respect of resolutions
are made within thirty days from the date of passing of resolution by means
of postal ballot.
20. In respect of certification of Annual Return by a company secretary in
practice, the directors of Disha Home Appliances Limited are advised to
refer Section 92 (2) of the Companies Act, 2013 and also Rule 11 (2) of the
Companies (Management and Administration) Rules, 2014 which state that
the Annual Returns of following companies shall be certified by a company
secretary in practice:
(i) a listed company; or
(ii) a company having paid-up share capital of Rs. 10 crores or more or
turnover of Rs. 50 crores or more.
Accordingly, if Disha Home Appliances Limited gets listed or in case its
paid-up share capital is increased to Rs. 10 crores or more or its turnover
becomes Rs. 50 crores or more, it shall be required to get its Annual Return
certified by a company secretary in practice. The certificate given by the
company secretary in practice shall be in Form No. MGT-8. The certificate,
inter-alia, shall state that the Annual Return discloses the facts correctly and
adequately and that the company has complied with all the provisions of
21. (i) In terms of Section 121 (2) of the Companies Act, 2013, Prince Auto-
parts Limited is required to file with the jurisdictional Registrar of
Companies a copy of the Report maximum within thirty days of the
conclusion of its Annual General Meeting.
(ii) In terms of Section 121 (3) of the Companies Act, 2013, every listed
company, which fails to file with the jurisdictional Registrar of

Companies a copy of the Report on its Annual General Meeting within

the specified time limit, shall be liable to the following penalty:
• Company: Rs. one lakh and in case of continuing failure, with a
further penalty of Rs. five hundred for each day after the first
during which such failure continues subject to a maximum of Rs.
five lakh.
• Every officer who is in default: Minimum Rs. twenty-five
thousand and in case of continuing failure, with a further penalty
of Rs. five hundred for each day after the first during which such
failure continues subject to a maximum of Rs. one lakh.
Accordingly, if Prince Auto-parts Limited fails to file a copy of the report on
its Annual General Meeting within the specified time limit of thirty days, it
shall be liable to the above stated penalty which may go maximum up to Rs.
five lakh in case of continuing default. In addition, its every officer who is in
default shall also liable to the penalty maximum of which will be Rs. one
lakh in case of continuing failure.

CHAPTER a
8
DECLARATION AND
PAYMENT OF DIVIDEND
LEARNING OUTCOMES
 Comprehend the legal provisions relating to declaration and
payment of dividend
 Identify about the conditions which need to be fulfilled before
declaring dividend out of accumulated reserves.
 Appreciate the manner in which unpaid and unclaimed
dividend is to be dealt with.
 Identify the nature and framework of the Investor Education
and Protection Fund (IEPF).
 Appreciate the consequences for failure to distribute
dividend.

Dividend
Meaning of Declaration of Unpaid/ IEPF Punishment

Dividend Dividend [Sec. 123 Unclaime for failure to
[Sec. 125]
[Sec. 2(35] & Companies d distribute
(Declaration and Dividend dividend
Payment of [Sec. 124] within 30
Types of Dividend) Rules, Establisment days [Sec.
Dividend 2014] of Fund 127]
Interim
Dividend Credits to
Current the Fund
Final Year and
Dividend profits Exemptions
Utilization of
Fund
Past Year
profits
Reserves
1. MEANING OF DIVIDEND
Definition
Section 2(35) of the Companies Act, 2013, while defining the term dividend simply
states that “dividend” includes any interim dividend. In common parlance,
“Dividend” implies a distribution of any sums to members out of profits and
wherever permitted out of free reserves available for the purpose.
Dividend is the shareholders return on their investment / capital in the company.

Dividend is part of the distributable profits which has been paid out to them. In
simple words, it is a distribution of profits i.e. a portion of profits earned and
allocated as payable to the shareholders whenever declared.

DECLARATION AND PAYMENT OF DIVIDEND 8.3 a
The company in general meeting may declare dividends, but no dividend shall
exceed the amount recommended by the Board. (Clause 80 of Table F in Schedule I)
Dividend is recommended by Board of Directors in the Board’s Report 1 and

approved by Shareholders at the Annual General Meeting. Dividend is not a
liability unless it is declared by the shareholders at a validly constituted general
meeting by passing an ordinary resolution 2 at the rates recommended by the
Board or such lower rates as they may decide.
Declaration of dividend by the company at a rate higher than the rate

recommended by the Board is not permitted.
Dividend is Declared as a proportion of Nominal or Face Value of a share.
Example 1: AB Ltd. has issued equity shares having face value of ` 10 per share.
The shares are currently quoting on the NSE at ` 250/- per share. The Company at
its AGM held on 27.7.20 has declared a dividend of 20%. Mr. Shekar owns 1000
shares which he purchased at ` 300/- per share. What is the amount of dividend
he will receive?
The dividend is to be calculated on Face Value i.e. ` 10/-. So dividend per share is
20% of ` 10/- = ` 2/- per share. So, Mr. Shekar will receive ` 2 * 1000 shares =
` 2000/-.
Example 2: The shareholders at an annual general meeting unanimously passed a

resolution for payment of dividend at a rate higher than that recommended by
the directors. Discuss the validity of the resolution.
Articles of Association companies usually contain provisions with regard to

declaration of dividend on the pattern of regulations 80 to 85 of Table F to
Schedule I of the Companies Act, 2013. Under regulation 80, although the power
to declare a dividend vests with the shareholders however under no
circumstances they can declare dividend exceeding the amount recommended by
the Board of Directors.
1
As per Section 134 (3) (k).
2
As per section 102 (2) declaration of any dividend at the AGM is an ordinary business
requiring ordinary resolution. At any other general meeting it will be special business.

2. TYPES OF DIVIDEND
I. Classification based on time i.e. when declared
Dividend
Interim Dividend Final Dividend
Interim Dividend
Section 123 (3) and also section 123 (4) contain provisions regarding interim
dividend. Following points are noteworthy:
 Interim dividend may be declared by the Board of Directors at any time
during the period from closure of financial year till holding of the annual
general meeting.
The declaration of interim dividend is done out of profits before the final
adoption of the accounts by the shareholders and therefore, interim
dividend is said to be declared and paid between two AGMs.
 The sources for declaring interim dividend include:
• Surplus in the profit and loss account; or
• Profits of the financial year in which such dividend is sought to be
declared; or
• Profits generated in the financial year till the quarter preceding the
date of declaration of the interim dividend.
 If the company has incurred loss during the current financial year up to the
end of the quarter immediately preceding the date of declaration of interim
dividend, such interim dividend shall not be declared at a rate higher than
the average (rate of) dividend declared by the company during the
immediately preceding three financial years.
Example 3: If a company declared dividend at the rate of 16% during the
immediately preceding three financial years, then in case the company
incurs loss in the current financial year, it is permitted to declare interim
dividend at a rate which is not higher than 16%.

 The amount of the dividend, including interim dividend, shall be deposited

in a separate account maintained with a scheduled bank within five days
from the date of declaration.
 All provisions which are applicable to the payment of dividend shall also
apply in case of interim dividend.
Final Dividend
 When the dividend is declared at the Annual General Meeting of the
company, it is known as ‘final dividend’.
 The rate of dividend recommended by the Board cannot be increased by the

members.
The table given below provides a quick summary of the above concepts of Interim
Dividend and Final Dividend.
BASIS FOR INTERIM DIVIDEND FINAL DIVIDEND

COMPARISON
Definition Interim dividend is declared Final dividend is the

and paid during an accounting dividend recommended by
year, i.e. before the finalization the board of directors, and
of accounts for the year. approved by shareholders
at the company's Annual
General Meeting, after the
close of financial year.
Announcement Announced by Board of Recommended by Board of

Directors. Directors and approved by
shareholders.
Time of Before preparation of financial After preparation of

Declaration statements. financial statements.
Revocation It can be revoked with the It cannot be revoked.

consent of all shareholders.

II. Classification based on Nature of Shares does not require any

specific provision in the articles.
Dividend
Cumulative
accumulates
Preference
unless it is paid
Shares
in full
Preference
Shares Non-
No arrears of
cumulative
dividend in
Preference
future is payable
Shares Shares
Dividend dependent on dividend

Equity policy and the availability of profits
Shares after satisfying the rights of
preference shareholders.
Shares can be classified into two categories i.e. preference shares and equity shares.
The manner of payment of dividend is dependent upon the nature of shares.
(i) Preference Shares: According to Section 43 of the Companies Act, 2013,
shareholders holding preference shares are assured of a preferential
dividend at a fixed rate during the life of the company.
Preference dividend unless otherwise agreed as cumulative in nature need
not be paid every year i.e. a company may decide not to declare any
dividend where there is deficiency of profits.
Classification of preference shares on the basis of payment of dividend is as
follows:
(a) Cumulative Preference Shares: A cumulative preference share is one
in respect of which dividend gets accumulated and any arrears of such
dividend arising due to insufficiency of profits during the current year
is payable from the profits earned in the later years. Until and unless
dividend on cumulative preference shares is paid in full, including
arrears, if any, no dividend is payable on equity shares.
(b) Non-cumulative Preference Shares: A non-cumulative preference
share is one where the dividend is payable only in a year of profit.
There is no accumulation of profit as in the case of cumulative
preference shares. In case no dividend is declared in a year due to any
reason, the right to receive such dividend for that year lapses and the

holder of such a share is not entitled to be paid arrears of dividend

out of future year profits.
(ii) Equity Shares: Equity shares are those shares, which are not preference
shares. They do not enjoy any preferential rights in the matter of payment
of dividend or repayment of capital. The rate of dividend on equity shares is
recommended by the Board of Directors and may vary from year to year.
Rate of dividend depends upon the dividend policy and the availability of
profits after satisfying the rights of preference shareholders.
3. PROVISIONS REGARDING DECLARATION

AND PAYMENT OF DIVIDEND
A. Sources for Declaration of Dividend
According to Section 123 (1), the dividend for any financial year shall be declared
or paid from the following sources:
(a) Profits of the current financial year- Profits arrived at after providing for
depreciation in accordance with Schedule II 3.
(b) Profits of any previous financial year or years- Profits of any previous
financial year(s) arrived at after providing for depreciation in accordance
with Schedule II and remaining undistributed i.e. credit balance in profit and
loss account and free reserves. It is to be noted that only free reserves4 and
no other reserves are to be used for declaration or payment of dividend 5.
(c) Both (a) and (b).
3
As per Section 123 (2).
4
Section 2 (43) defines the term ‘free reserves’ to mean such reserves which, as per the latest
audited balance sheet of a company, are available for distribution as dividend. However,
following items shall not be treated as free reserves:
(a) any amount representing unrealised gains, notional gains or revaluation of assets,
whether shown as a reserve or otherwise; or
(b) any change in carrying amount of an asset or of a liability recognised in equity, including
surplus in profit and loss account on measurement of the asset or the liability at fair
value.
5
As per Third Proviso to Section 123 (1).

(d) Provision of money by the Government- Money provided by the Central

Government or a State Government for the payment of dividend by the
company in pursuance of a guarantee given by that Government.
Note 1: Before declaration of any dividend, carried over previous losses and
depreciation not provided in previous year or years are required to be set
off against profit of the company for the current year 6.
Note 2: In computing profits any amount representing unrealised gains,

notional gains or revaluation of assets and any change in carrying amount
of an asset or of a liability on measurement of the asset or the liability at
fair value shall be excluded 7.
Note 3: Capital profits are not same as distributable profits because they
are not earned in the normal course of business; and therefore, normally not
available for distribution as dividend.
Need for providing for depreciation out of profits before declaring

dividend
Dividend is an apportionment from revenue profits. Therefore, dividend

should never be declared out of capital. This is also the reason for
prohibition on issue of shares at a discount which you studied in the topic
Share Capital and Debentures.
"Depreciation" is a notional estimate of the reduction in the value of an

asset due to
i. wear and tear,
ii. efflux of time,
iii. improvements in technology etc.
If depreciation is not provided for there will be two consequences:
i. The value of the asset will be overstated in Balance Sheet
ii. The profits of the current year will be overstated.
6
As per Fourth Proviso to Section 123 (1).
7
As per Proviso to Section 123 (1) (a).

Let us take a hypothetical case where a company declares all the profits
earned during any year as dividend.
At the time of winding up of the company the value of assets appearing in

the Balance-sheet would appear to be sufficient to repay the capital of the
shareholders but the actual realizable value thereof will be a paltry sum
which may not be sufficient even to meet the expenses of winding up.
This is because the company has failed to retain the amount of wear and
tear in the value of the asset by way of provision for depreciation. In a way
the company would have declared dividend out of capital, which is
prohibited.
Hence the law mandates provision for depreciation out of profits before
declaration of dividend.
Example 4: Shreyas Mechanics Limited owns a plot of land which was

purchased long before. As the property rates are going up, it is decided to
revalue the plot at fair value which is moderately ten times the original
price, thus resulting in a revaluation profit of ` 20,00,000. The Board of
Directors is keen to utilize this ` 20,00,000 along with free reserves of
` 24,00,000 for declaration of dividend at the forthcoming Annual General
Meeting (AGM) to be held on 28th September, 2023. But according to
Proviso to Section 123 (1) (a), the amount of ` 20,00,000 cannot be
considered as it does not form part of Free Reserves as the same cannot be
utilized towards declaration of dividend.
B. Transfer to Reserves
Transfer of profits to reserves for any financial year has been left to the discretion of
the company. Therefore, a company is free to transfer any portion of its profit to
reserves as it may deem fit. It may also decide not to transfer any amount to reserves.
Illustration 1: For the current year, Alma Watches Limited proposes to transfer
more than 10% of its profits to the reserves before declaration of dividend at the
rate of 12%. Can the company do so?
Answer: The amount to be transferred to reserves out of profits for any financial
year before the declaration of dividend has been left to the discretion of the

company. Therefore, Alma Watches Limited is free to transfer any part of its
profits to reserves as it may deem fit.
Illustration 2: Brix Shipyards Limited has earned a profit of ` 1,000 crores for the
financial year 2018-19. It has proposed a dividend @ 8.75%. However, it does not
intend to transfer any amount to the reserves out of the profits earned. Can the
company do so?
Answer: The amount to be transferred to reserves out of profits for any financial
year has been left to the discretion of the company. The company is free to
transfer any part of its profits to reserves as it may deem fit or it may even not
transfer any profits to reserve if it is deemed appropriate before the declaration
of dividend. Thus, Brix Shipyards Limited is justified in its action if it does not
transfer any amount of profits to the reserves.
C. Declaration of Dividend when there is inadequacy or Absence of

Profits (Second Proviso to Sec. 123)
Where in any year there are no adequate profits for declaring dividend, the
company may declare dividend out of the accumulated profits earned by it in
previous years and transferred by it to the free reserves only in accordance with
the procedure laid down in Rule 3 of the Companies (Declaration and Payment of
Dividend) Rules, 2014.
Free Reserves 8means such reserves which, as per the latest audited balance sheet
of a company, are available for distribution as dividend:
The following shall not be treated as free reserves;
Any amount representing unrealized gains, notional gains or revaluation of assets,

whether shown as a reserve or otherwise, or
Any change in carrying amount of an asset or of a liability recognized in equity,

including surplus in profit and loss account on measurement of the asset or the
liability at fair value.
Under Rule 3 such declaration shall be subject to the following conditions:
8
Section 2 (43)

CONDITION I
The rate of dividend declared shall not exceed the average of the rates at which
dividend was declared by the company in the immediately preceding three years.
Rate of Dividend ≤ (RD1 +RD2 + RD3)/3
Where, RD1, RD2, RD3 are rates at which dividend was declared by the company in
the immediately preceding three years.
However, this condition shall not apply if the company has not declared any
dividend in each of the three preceding financial year.
CONDITION II
The total amount to be drawn from such accumulated profits shall not exceed 10% of
its paid-up share capital and free reserves as appearing in the latest audited financial
statement. In other words:
Total amount that can be drawn from ≤ 10% of (paid up

accumulated profits
share capital + free reserves)
CONDITION III
The amount so drawn shall first be utilised to set off the losses incurred in the
financial year in which dividend is declared and only thereafter, any dividend in
respect of equity shares shall be declared.
CONDITION IV
The balance of reserves after such withdrawal shall not fall below 15% of its paid up
share capital as appearing in the latest audited financial statement.
Free Reserves – Amount drawn for >= 15 % of paid up share capital

payment of dividend
It may be noted that all the above three conditions have to be satisfied.
The conditions prescribed by Rule 3 are not applicable to a Government company

in which the entire paid up share capital is held by the Central Government, or by

any Stale Government or Governments or by the Central Government and one or

more State Governments (vide Notification No. 463 (E), dated 05-06-2015).
Illustration 3: Capricorn Industries Limited has a paid-up capital of ` 200 lakhs and
accumulated Reserves of ` 240 lakhs. Loss for the year ending 31st March 2020 is
` 30 Lakhs. Dividend was declared at the following rates during the three years
immediately preceding.
Year 1 9%
Year 2 10%
Year 3 12%
What is the maximum rate at which the company can declare dividend for the current
year?
Answer: In the given case, Capricorn Industries Limited has not made adequate
profits during the current year ending on 31st March, 2020, but it still wants to
declare dividend. Let us apply the conditions:
Condition I:
9 + 10 + 12
Average rate = =10.33%
3
Therefore, the rate of dividend shall not exceed 10.33%.
i.e. 10.3% of Paid up Capital i.e. ` 200 lakhs = ` 20.6 lakhs
Condition II:
Paid-up capital + Free reserves = ` (200+240) Lakhs
(Assuming all reserves are free) ` 440 Lakhs
10% thereof = ` 44 Lakhs
Less: loss for the year = ` 30 Lakhs
Amount available = ` 14 Lakhs
Hence, the quantum of dividend is further restricted to ` 14 lakhs.
Condition III:
Accumulated Reserves ` 240 Lakhs

Proposed withdrawal declaration of dividend ` 14 Lakhs

Balance of Reserves ` 226 Lakhs
This is more than 15% of paid-up capital (i.e 15% of ` 200 Lakhs) i.e. ` 30 lakhs.
Thus, the company can declare a dividend of ` 14 lakhs i.e. at a rate of 7% on its
paid-up capital of ` 200 lakhs.
Illustration 4: Shipra Sugar Mills Limited has been regularly declaring dividend at the
rate of 20% on its equity shares for the past 3 years. However, the company has not
made adequate profits during the current year ending on 31st March, 2020, but it has
got adequate free reserves which can be utilized for maintaining the rate of dividend at
20%.
Advise the company as to how it should proceed in the matter if it wants to declare
dividend at the rate of 20% for the year 2019-20, as per the provisions of the
Answer: The company can declare a dividend out of its Accumulated Free Reserves
subject to satisfaction of the following conditions:
• The rate of dividend declared shall not exceed the average of the rates at
which dividend was declared by the company in the immediately preceding
three years.
However, this condition shall not apply if the company has not declared any
dividend in each of the three preceding financial year.
• The total amount to be drawn from free reserves shall not exceed 10% of its
paid-up share capital and free reserves as per the latest audited financial
statement.
• The amount so drawn shall first be utilised to set off the losses incurred in
the current financial year and only thereafter, dividend at 20% shall be
declared.
• After such withdrawal from free reserves, the residual reserves shall not fall
below 15% of its paid-up share capital as per the latest audited financial
statement.
The company is advised to get the desired dividend recommended by the Board of
Directors and propose the same for the approval of the members at the ensuing

Annual General Meeting as the authority to declare dividend lies with the members
of the company.
D. Depositing of Amount of Dividend

In terms of section 123(4), the amount of the dividend (including
interim dividend), shall be deposited in a separate account maintained
with a scheduled bank. This is to be done within 5 days from the date
of declaration of dividend 9.
Example 5: The authorised and paid-up share capital of Avantika Ayurvedic
Products Limited is ` 50.00 lacs divided into 5,00,000 equity shares of ` 10 each.
At its Annual General Meeting (AGM) held on 24 th September, 2019, the company
declared a dividend of ` 2 per share by passing an ordinary resolution. The
amount of dividend must be deposited in a scheduled bank in a separate account
latest by 29th September, 2019.
E. Payment of Dividend
Section 123(5) contains provisions regarding payment of dividend. These are
stated as under:
(a) Dividend shall be payable only to the registered shareholder or to his
order or to his banker.
In case a shareholder informs the company to pay dividend to a particular
banker and if the payment is so made by the company, then it shall be
deemed to be made to the shareholder himself.
A purchaser of shares whose name is not entered in the Register of
Members cannot claim payment of dividend to him though he might have
made full payment to the seller of shares. In this regard we will, later in this
chapter, see Section 126 which provides for keeping of dividend etc., in
abeyance pending registration of transfer of shares, unless the registered
holder has authorized the company to pay the dividend to the purchaser.
9
In terms of Notification No. 463 (E), dated 05-06-2015, this requirement shall not apply
to a Government Company in which the entire paid up share capital is held by the Central
Government, or by any State Government or Governments or by the Central Government
and one or more State Governments or by one or more Government Company.

Illustration 5: The Directors of East West Limited proposed dividend at 15% on

equity shares for the financial year 2022-2023. The company announced 28th
September 2023 as the record date for payment of dividend. The dividend was
approved in the Annual General Meeting held on 30th September 2023.
Mr. Binoy was the holder of 2000 equity of shares on 31st March, 2018, but he
transferred the shares to Mr. Mohan, whose name has been entered in the
register of members on 18th June, 2023. Who will be entitled to the above
dividend?
Answer: According to section 123, dividend shall be paid by a company
only to the registered shareholder of such share.
Record date is the date announced by the company for determining
entitlement to dividend. All those persons whose name is included in the
register of members on that date shall be entitled to dividend.
In the instant case, on the date announced by the company as the record
date, Mr. Mohan’s name is present in the register of members (i.e. Mr.
Binoy’s name is NOT present therein). Therefore, the dividend should be
paid to Mr. Mohan who is the registered shareholder on the record date.
Illustration 6: The Board of Directors of Som Mechanical Toys Limited

proposed a dividend at 12% on equity shares for the financial year 2022-23.
The same was approved at the Annual General Meeting of the company held
on 25th June, 2023.
Mr. Nitin Jha was holding 1,000 equity shares as on 31st March, 2023, but the
same were transferred by him to Mr. Raj, whose name was registered on 20 th
April, 2023 in the Register of Members. State as to who will be entitled to the
dividend declared by the company.
Answer: According to section 123(5), dividend shall be payable only to the
registered shareholder of the shares or to his order or to his banker. Facts in
the given case state that Mr. Nitin Jha, the holder of equity shares
transferred his shares to Mr. Raj whose name was registered on 20 th April,
2023. Since, Mr. Raj became the registered shareholder before the
declaration of the dividend in the Annual General Meeting of the company
held on 25 th June, 2023, he will be entitled to the dividend.

Note: In terms of Section 51, a company may, if so authorised by its articles,

pay dividend in proportion to the amount paid-up on each share. Suppose,
some of the shareholders have paid only ` 5 (face value ` 10) on each share
held by them. In case of declaration of dividend at the rate of ` 5 per share,
the company, if authorised by its articles, shall be justified in paying
dividend of ` 2.50 per share in respect of such partly paid shares.
(b) Dividends are payable in cash and not in kind. Dividends

that are payable to the shareholders in cash may also be
paid by cheque or dividend warrant or through any
electronic mode.
Section 127 requires that the declared dividend must be paid to the entitled
shareholders within the prescribed time limit of thirty days from the date of
declaration of dividend. In case dividend is paid by issuing dividend
warrants, such warrants must be posted at the registered addresses within
the prescribed time.
Note: Dividends shall be paid only in cash. The exception to this is the
capitalization of profits or reserves of a company for the purpose of issuing
fully paid-up bonus shares or paying up any amount for the time being
unpaid on any shares held by the members of the company 10.
But you may note that while Declaration of dividend does not affect the
company’s power to issue fully paid up bonus shares, such shares cannot be
issued in lieu of dividend.
(c) Applicability of Section 123 (5) to Nidhis: In terms of Notification No. GSR
465 (E), dated 05-06-2015, this sub-section shall apply to the Nidhis, subject
to the modification that any dividend payable in cash may be paid by
crediting the same to the account of the member, if the dividend is not
claimed within 30 days from the date of declaration of the dividend.
10
First Proviso to Section 123 (5)

Chart depicts the mode of payment and recipient of dividend

Payment of dividend
Payable in Payable to Nidhis
Cash
the registered
shareholder of the any dividend payable in cash may be
cheque share, or paid by crediting the same to the
account of the member, if the
warrant dividend is not claimed within 30 days
to his order, from the date of declaration of the
or dividend.
any electronic
mode
to his banker
F. Prohibition on Declaration of Dividend

In the following cases declaration and payment of dividend is prohibited.
(i) Prohibition in case of any Defaulting
Company:11 A company which fails to comply
with the provisions of section 73 (Prohibition
on acceptance of deposits from public) and
section 74 (Repayment of deposits, etc.,
accepted before the commencement of this
Act of 2013) shall not, so long as such failure
continues, declare any dividend on its equity
shares.
(ii) Prohibition in case of Section 8 Companies:
According to section 8 (1), a company having
licence under Section 8 (Formation of
companies with charitable objects, etc.) is
prohibited from paying any dividend to its
members. Its profits are intended to be applied only in promoting the
objects for which it is formed.
11
Section 123 (6)

4. UNPAID DIVIDEND ACCOUNT (UDA)

Section 124 of the Act contains the provisions relating to Unpaid Dividend
Account (UDA). These are as follows:
(i) Unpaid or Unclaimed Dividend to be transferred to the Unpaid

Dividend Account- Where a dividend has been declared by a company but has
not been paid or claimed within thirty (30) days from the date of declaration, the
company shall, within seven (7) days from the expiry of the said period of 30 days,
transfer the total amount of unpaid or unclaimed dividend to a special account
called the Unpaid Dividend Account (UDA). The UDA shall be opened by the
company in any scheduled bank.
(ii) Preparing of Statement of the Unpaid Dividend- Within 90 days of

transferring any amount to the Unpaid Dividend Account, the company shall
prepare a statement containing the names, last known addresses and the amount
of unpaid dividend to be paid to each person and place such statement on its
web-site, if any, and also on any other web-site approved by the Central
Government for this purpose.
(iii) Payment of Interest if default is made in transferring the Amount- If

any default is made in transferring the total unpaid dividend amount or any part
thereof to the Unpaid Dividend Account, the company shall pay, from the date of
such default, interest at the rate of twelve per cent per annum on the amount not
so transferred to the said account. The interest accruing on such amount shall
ensure i.e. be available to the benefit of the members of the company in
proportion to the amount remaining unpaid to them.
(iv) Claimant to apply for payment of Claimed Amount- Any person claiming
to be entitled to any money transferred to the Unpaid Dividend Account may
apply to the company concerned for payment of the money so claimed.
(v) Transfer of Unclaimed Amount to Investor Education and Protection

Fund (IEPF)- Any money transferred to the Unpaid Dividend Account which
remains unpaid or unclaimed for seven (7) years from the date of such transfer
shall be transferred by the company along with interest accrued thereon to the
Investor Education and Protection Fund.

Further, the company shall send a prescribed statement containing the details of
such transfer to the IEPF Authority and in turn, the Authority shall issue a receipt
to the company as evidence of such transfer.
(vi) Transfer of Shares to IEPF- All shares in respect of which dividend has not
been paid or claimed for 7 consecutive years or more shall be transferred by the
company in the name of Investor Education and Protection Fund along with a
statement containing the prescribed details.
By way of Explanation, it is clarified that in case any dividend is paid or claimed

for any year during the said period of seven consecutive years, the share shall not
be transferred to Investor Education and Protection Fund.
(vii) Right of Owner of ‘transferred shares’ to Reclaim- Any claimant of shares

so transferred to IEPF shall be entitled to reclaim the ‘transferred shares’ from
Investor Education and Protection Fund in accordance with the prescribed
procedure and on submission of prescribed documents.
(viii) Punishment for Contravention- If a company fails to comply with any of

the requirements of this section, such company shall be liable to a penalty of one
lakh rupees and in case of continuing failure, with a further penalty of five
hundred rupees for each day after the first during which such failure continues,
subject to a maximum of ten lakh rupees and every officer of the company who is
in default shall be liable to a penalty of twenty-five thousand rupees and in case
of continuing failure, with a further penalty of one hundred rupees for each day
after the first during which such failure continues, subject to a maximum of two
lakh rupees.

Declared Dividend
Within 30 Days
Dividend Not Paid/ Claimed
Within 7 Days
Deposit the unpaid/ unclaimed If not done Pay Interest @

dividend amount in Scheduled Bank 12% p.a. (from the
(Called Unpaid Dividend Account) date of default)
Within 90 Days
Prepare Statement (Name, Last known

address, Unpaid dividend amount)
Website of Place on Website approved by

Company Govt. for this purpose
After the expiry of 7 Years from date of transfer
Transfer unpaid/unclaimed dividend along with interest to

IEPF
5. INVESTOR EDUCATION AND PROTECTION

FUND (IEPF)
Section 125 of the Act along with various Rules framed from time to time
including 12Investor Education and Protection Fund Authority (Accounting, Audit,
Transfer and Refund) Rules, 2016 deal with the Investor Education and Protection
Fund (IEPF). This fund, being established by the Central Government, shall be
credited with specified amounts and utilized for refund of unclaimed and unpaid
amounts, promotion of investors’ awareness and protection of the interests of
investors, etc.
12
Notified vide Notification No. GSR 854 (E), dated 05.09.2016 w.e.f. 07.09.2016.

The relevant provisions are discussed below:

1. Credit of Specified Amounts to the Fund: Following specified amounts
shall be credited to the Fund:
(a) Amount given by the Central Government- The amount given by the
Central Government by way of grants after due appropriation made by
Parliament;
(b) Donations by the Central Government- Donations given by the Central
Government, State Governments, companies or any other institution for the
purposes of the Fund;
(c) Amount lying in the Unpaid Dividend Account- The amount lying in the
Unpaid Dividend Account (UDA) of companies which is transferred by them
to the Fund under section 124(5);
(d) Amount in the General Revenue Account of the Central Government-
The amount in the General Revenue Account of the Central Government
which had been transferred to that account under section 205A(5) of the
Companies Act, 1956 as it stood immediately before the commencement of
the Companies (Amendment) Act, 1999 and remaining unpaid or unclaimed
on the commencement of the Act of 2013;
(e) Amount in IEPF- The amount lying in the Investor Education and Protection
Fund under section 205C of the Companies Act, 1956;
(f) Income from Investments- The interest or other income received out of
investments made from the Fund;
(g) Amount received through disgorgement or disposal of Securities- The
amount received under section 38(4) i.e. amount received through
disgorgement 13or disposal of securities seized from a person who has been
convicted for personation for acquisition of securities as provided in
section 38(3);
(h) Application Money- The application money received by companies for
allotment of any securities and due for refund (only if such amount has
remained unclaimed and unpaid for a period of seven years from the date it
became due for payment);
13
Disgorgement is the legally enforced repayment of ill-gotten gains imposed on wrongdoers
by the courts. Funds that were received through illegal or unethical business transactions are
disgorged, or paid back, often with interest and/or penalties to those affected by the action.

(i) Matured Deposits- Matured deposits with companies other than banking
companies (only if such amount has remained unclaimed and unpaid for a
period of seven years from the date it became due for payment);
(j) Matured Debentures- Matured debentures with companies (only if such
amount has remained unclaimed and unpaid for a period of seven years
from the date it became due for payment);
(k) Interest- Interest accrued on the amounts referred to in clauses (h) to (j);
(l) Amount received from Sale Proceeds- Amount received from sale
proceeds of fractional shares arising out of issuance of bonus shares,
merger and amalgamation for seven or more years;
(m) Redemption Amount- Redemption amount of preference shares remaining
unpaid or unclaimed for seven or more years; and
(n) Other Amounts- Such other amounts as prescribed in Rule 3 of the Investor
Education and Protection Fund Authority (Accounting, Audit, Transfer and
Refund) Rules, 2016. They are as under:
(a) all amounts payable as mentioned in clause (a) to (n) of section 125
(2) of the Act [as stated above];
(b) all shares in accordance with section 124 (6) i.e. all those shares in
whose case dividends have not been claimed or paid for seven
consecutive years or more;
(c) all the resultant benefits arising out of shares held by the Authority
under clause (b) above;
(d) all grants, fees and charges received by the Authority under these
rules;
(e) all sums received by the Authority from such other sources as may be
decided upon by the Central Government;
(f) all income earned by the Authority in any year;
(fa) all shares held by the Authority in accordance with proviso of sub-
section (9) of section 90 of the Act and all the resultant benefits
arising out of such shares, without any restrictions;

(g) all amounts payable as mentioned in sub-section (3) of section 10B of

the Banking Companies (Acquisition and Transfer of Undertakings)
Act, 1970, section 10B of the Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1980 sub-section (3) of section 38A of
the State Bank of India Act, 1955 and section 40A of the State Bank of
India (Subsidiary Bank) Act, 1959; and; and
(h) all other sums of money collected by the Authority as envisaged in the
Act.
Further, according to Rule 3 (3), in case of term deposits and debentures of

companies, due unpaid or unclaimed interest shall be transferred to the
Fund along with the transfer of the matured amount of such term deposits
and debentures.
2. Utilization of the Fund: According to section 125 (3) the Fund shall be
utilized for:
(a) refund of unclaimed dividends, matured deposits, matured
debentures, the application money due for refund and interest
thereon;
(b) promotion of investors’ education, awareness and protection;

(c) distribution of any disgorged amount among eligible and identifiable
applicants for shares or debentures, shareholders, debenture-holders
or depositors who have suffered losses due to wrong actions by any
person, in accordance with the orders made by the Court which had
ordered disgorgement;
(d) reimbursement of legal expenses incurred in pursuing class action
suits under sections 37 and 245 by members, debenture-holders or
depositors as may be sanctioned by the Tribunal; and
(e) any other purpose incidental thereto in accordance with the rules
framed under the Investor Education and Protection Fund Authority
(Accounting, Audit, Transfer and Refund) Rules, 2016.
Refund of Amount- A person amounts referred to in clauses (a) to (d) of sub-

section (2) of section 205C were transferred to IEPF, after the expiry of 7 years as
per provisions of the Companies Act, 1956, shall be entitled to get refund out of

the fund in respect of such claims in accordance with rules made under this
section.
3. Application to the Authority for payment: According to section 125 (4),

any person claiming to be entitled to the amount referred in section 125 (2) may
apply to the Authority constituted under section 125 (5) for the payment of the
money claimed.
4. Other Provisions governing the IEPF
(i) Constitution of the Authority for Administration of Fund- In terms
of Notification dated 13.01.2016 14, the Ministry of Corporate Affairs
has notified sub-section (5), sub-section (6) (except with respect to the
manner of administration of the Fund) and sub-section (7) of section
125 of the Act w.e.f. 13.01.2016. With this Notification, an Authority is
being constituted for the administration and maintenance of accounts
as well as other relevant records of the Fund.
Further, with the notification of IEPF Authority (Appointment of
Chairperson and Members, holding of Meetings and provision for
Offices and Officers) Rules, 2016 on 13.01.2016, the Secretary, Ministry
of Corporate Affairs shall be the ex-officio Chairperson of the
Authority. In addition, there shall be six members (maximum limit
seven) and a Chief Executive Officer who shall be the convenor of the
Authority.
(ii) Provision of required Resources by the Central Government for

Administration of the Fund- The Central Government may provide to
the Authority such offices, officers, employees and other resources in
accordance with the IEPF Authority (Appointment of Chairperson and
Members, holding of Meetings and provision for Offices and Officers)
Rules, 2016.
(iii) Authority to work in consultation with CAG of India- The Authority

shall administer the Fund and maintain separate accounts and other
relevant records in relation to the Fund in such form as may be
14
Vide Notification No. GSR 26 (E), dated 13.01.2016.

prescribed after consultation with the Comptroller and Auditor-

General of India.
(iv) Spending of Money- The Authority shall be competent to spend

money out of the Fund for carrying out the objects specified in section
125 (3) i.e. purposes for which the fund shall be utilized.
(v) Audit of the Fund- The accounts of the Fund shall be audited by the
Comptroller and Auditor-General of India at such intervals as may be
specified by him. Such audited accounts together with the audit report
thereon shall be forwarded annually by the Authority to the Central
Government.
(vi) Preparation of Annual Report by the Authority- For each financial

year, the Authority shall prepare in the prescribed form and at
prescribed time its annual report giving full account of its activities
during the financial year and forward a copy thereof to the Central
Government. In turn, the Central Government shall cause the annual
report and the audit report given by the Comptroller and Auditor-
General of India to be laid before each House of Parliament.
6. RIGHT OF DIVIDEND, RIGHTS SHARES AND

BONUS SHARES TO BE HELD IN ABEYANCE
PENDING REGISTRATION OF TRANSFER OF
SHARES
According to Section 126, in case any instrument of transfer of shares has been
delivered by a shareholder for registration and the transfer of such shares has not
been registered by the company, such company shall take the following steps:
(a) Transfer the dividend in relation to such shares to the Unpaid Dividend
Account unless it is authorised by the registered holder of such share in
writing to pay such dividend to the transferee specified in the instrument of
transfer; and

(b) Keep in abeyance in relation to such shares any offer of rights shares under
section 62 (1) (a) and any issue of fully paid-up bonus shares in pursuance
of first proviso to section 123 (5).
7. PUNISHMENT FOR FAILURE TO DISTRIBUTE

DIVIDENDS WITHIN 30 DAYS
Section 127 of the Act contains time limit for distribution of dividends and
punishment for failure to distribute dividend on time. Certain exemptions from
punishments are also provided. These provisions are stated as under:
A. Time Limit for Distribution of Dividends

Where a company declares dividend, it must be paid or the dividend
warrant thereof must be posted within 30 days from the date of declaration
of dividend to the shareholders entitled to the same. Posting of dividend
warrants within 30 days absolves the company from any punishment
irrespective of whether it is received by the shareholder concerned within
this time or not. The offence is committed only when the company fails to
post dividend warrants to the registered address of the members within 30
days of declaration. Non-receipt of dividend warrants by the shareholders
within the prescribed time does not attract any punishment.
B. Punishment for Failure
In case a company fails to pay declared dividends or fails to post dividend

warrants within 30 days of declaration, following punishments are
applicable:
(i) Every director of the company shall be punishable with imprisonment

of up to two years, if he is knowingly a party to the default. And, he
shall also be liable to pay minimum fine of ` 1,000 for every day
during which such default continues.
(ii) The company shall be liable to pay simple interest at the rate of 18%
p.a. during the period for which such default continues.

C. Exemption from Punishment

Under the following cases, where the company has failed to pay declared
dividend within 30 days of declaration, no offence shall be deemed to have
been committed and therefore, no punishment is attracted:
(a) where the dividend could not be paid by reason of the operation of
any law;
(b) where a shareholder has given directions to the company regarding
the payment of the dividend and those directions cannot be complied
with and the same has been communicated to him;
(c) where there is a dispute regarding the right to receive the dividend;
(d) where the dividend has been lawfully adjusted by the company
against any sum due to it from the shareholder;
(e) where, for any other reason, the failure to pay the dividend or to post
the warrant within the prescribed period of 30 days was not due to
any default on the part of the company.
Exemption from Punishment under Section 127
Dividend Shareholder for any

could gave Dispute Dividend other
not be directions regarding has been reason,
paid by regarding right to lawfully the failure
reason of payment of receive adjusted to pay/
operation dividend, dividend against post
of any AND any sum dividend
law due from warrant
those shareholder within the
directions to prescribed
cannot be company time, was
complied not due to
with and the any
same has default on
been the part of
communicat the
ed to him company.

Illustration 7: Mr. Alok, holding equity shares of face value of ` 10 lakhs, has
not paid ` 80,000 towards call money due on shares. Can the dividend amount
payable to him be adjusted against such dues? Give reasons for your answer.
Answer: Yes. As per clause (d) of Proviso to Section 127, where the dividend
is declared by a company and there remains calls in arrears or any other
sum due from a member, then the dividend can be lawfully adjusted by the
company against any such dues.
Thus, the action of the company adjusting dividend payable to Mr. Alok
towards call money due on shares amounting to ` 80,000 is justified and
therefore, no punishment is attracted.
Applicability of Section 127 to Nidhis

In terms of Notification No. GSR 465 (E), dated 05-06-2015, Section 127 dealing
with punishment shall apply to the Nidhis, subject to the following
modification:
In case the dividend payable to a member is ` 100 or less, it shall be
sufficient compliance of the provisions of the section 127, if the declaration
of the dividend is announced in the local language in one local newspaper
of wide circulation and announcement of the said declaration is also
displayed on the notice board of the Nidhis for at least 3 months.
SUMMARY
◼ Section 2(35) of the Companies Act, 2013, states that “dividend” includes
any interim dividend.
◼ Dividend can be declared out of:
⧫ Profits of the current year after depreciation,

⧫ Profits for any previous financial year or years arrived at after
providing for depreciation and remaining undistributed,
⧫ Both of the above,

⧫ Money provided by the Central Government or a State Government
for the payment of dividend by the company in pursuance of a
guarantee given by that Government.

[Note: Depreciation shall be provided in accordance with the provisions of

Schedule II.]
◼ Before declaration of dividend, the company may, at its discretion, transfer
any appropriate percentage of its profits to the reserves.
◼ When there is inadequacy or absence of profits, the company may declare
dividend out of free reserves after following the conditions prescribed in the
Rules.
◼ Amount of dividend (including interim dividend) shall be deposited in a
separate bank account maintained with a scheduled bank within 5 days
from the date of declaration of dividend.
◼ Payment of dividend-
⧫ Payable
 in cash; or
 by cheque; or
 by dividend warrant; or
 by any electronic mode
⧫ Payable
 to the registered shareholder of the shares; or
 to his order; or
 to his banker.
⧫ In case of Nidhis
 any dividend payable in cash may be paid by crediting the same to
the account of the member, if the dividend is not claimed within 30
days from the date of declaration of the dividend.
◼ Unpaid Dividend Account (UDA)
⧫ Declared dividend not paid or claimed to be transferred to the Unpaid
Dividend Account (UDA).
⧫ Prepare statement of particulars of the unpaid dividend.
⧫ Default in transferring of amount to UDA - Interest @ 12% p.a.
⧫ Entitled shareholders can apply for payment of amount from UDA.

⧫ Transfer unpaid or unclaimed amount of dividend (and shares thereof) to

Investor Education and Protection Fund (IEPF) after the expiry of seven
years from the date of such transfer to UDA.
⧫ Right of owner of shares transferred to IEPF to claim from IEPF: Claimant
of transferred shares is entitled to reclaim the transfer of shares from IEPF
by following the prescribed procedure and on submission of prescribed
documents.
⧫ In case any dividend is paid or claimed for any year during the said
period of 7 consecutive years, the shares shall not be transferred to IEPF.
⧫ Punishment: In case a company fails to pay declared dividends or fails to
post dividend warrants within 30 days of declaration, company shall be
liable to a penalty of one lakh rupees and in case of continuing failure,
with a further penalty of five hundred rupees for each day after the
first during which such failure continues, subject to a maximum of ten
lakh rupees and every officer of the company who is in default shall be
liable to a penalty of twenty-five thousand rupees and in case of
continuing failure, with a further penalty of one hundred rupees for
each day after the first during which such failure continues, subject to
a maximum of two lakh rupees.
◼ Exemptions from punishment under section 127
⧫ dividend could not be paid by reason of operation of any law;
⧫ shareholder gave directions regarding payment of dividend but those
directions could not be complied with and the same had been
communicated to him;
⧫ dispute regarding right to receive dividend;
⧫ dividend had been lawfully adjusted against any sum due from the
shareholder to the company;
⧫ for any other reason and the failure to pay/post dividend warrant within
the prescribed time was not due to any default on the part of the
company.

TEST YOUR KNOWLEDGE

1. When the dividend is declared at the Annual General Meeting of the
company, it is known as ….
(a) Final Dividend

(b) Interim Dividend
(c) Dividend on preference shares
(d) Scrip Divided

2. Amount to be transferred to reserves out of profits before any declaration of
dividend is ___________
(a) 5%
(b) 7.5%
(c) 10%
(d) at the discretion of the company.
3. The Board of Directors of Vidyut Limited are contemplating to declare interim
dividend in the last week of July, 2022 but the company has incurred loss
during the current financial year up to the end of June, 2022. However, it is
noted that during the previous five financial years i.e., 2017-18, 2018-19,
2019-20, 2020-21 and 2021-22, the company had declared dividend at the
rate of 8%, 9%, 12%, 11% and 10% respectively. Advise the Board as to the
maximum rate at which they can declare interim dividend despite incurring
loss during the current financial year.
(a) Maximum at the rate of 10%.
(b) Maximum at the rate of 11%.
(c) Maximum at the rate of 10.5%.
(d) Maximum at the rate of 11.5%.

4. The amount accumulated in the Investor Education and Protection Fund shall
not be used for:
(a) refunds in respect of unclaimed dividends, matured deposits, matured

debentures, application money due for refund and interest thereon.
(b) reimbursement of legal expenses incurred in pursuing class action suits
under section 37 and 245.
(c) grants or donation to the Central Government for the purpose of
investor’s education and training.
(d) distribution of any disgorged amount among eligible and identifiable

applicants who have suffered losses.
5. In case a company fails to pay declared dividends or fails to post dividend
warrants within 30 days of declaration, company shall be liable to pay simple
interest at the rate of ………during the period for which such default continues.
(a) 6% p.a.
(b) 12% p.a.
(c) 15% p.a.
(d) 18% p.a.
1. The Annual General Meeting of ABC Bakers Limited held on 30th May, 2022,
declared a dividend at the rate of 30% payable on its paid-up equity share
capital as recommended by Board of Directors. However, the Company was
unable to post the dividend warrant to Mr. Ranjan, an equity shareholder, up
to 25th July, 2022. Mr. Ranjan filed a suit against the Company for the
payment of dividend along with interest at the rate of 20 percent per annum
for the period of default. Decide in the light of provisions of the Companies
Act, 2013, whether Mr. Ranjan would succeed? Also, state the directors’
liability in this regard under the Act.
2. The Board of Directors of Future Fashions Limited at its meeting
recommended a dividend on its paid-up equity share capital which was later
on approved by the shareholders at the Annual General Meeting. Thereafter,
the directors at another meeting of the Board passed a board resolution for

diverting the total dividend to be paid to the shareholders for purchase of

certain short-term investments in the name of the company. As a result,
dividend was paid to shareholders after 45 days.
Examining the provisions of the Companies Act, 2013, state whether the act of
directors is in violation of the provisions of the Act and if so, state the
consequences that shall follow for the above violative act.
3. Referring to the provisions of the Companies Act, 2013, examine the validity
of the following:
The Board of Directors of ABC Tractors Limited proposes to declare dividend

at the rate of 20% to the equity shareholders, despite the fact that the
company has defaulted in repayment of public deposits accepted before the
commencement of this Act.
4. Star Computers Limited declared and paid dividend in time to all its equity
holders for the financial year 2021-22, except in the following two cases:
(i) Mrs. Sheela Bhatt, holding 250 shares had mandated the company to
directly deposit the dividend amount in her bank account. The company,
accordingly remitted the dividend but the bank returned the payment
on the ground that there was difference in surname of the payee in the
bank records. The company, however, did not inform Mrs. Sheela Bhatt
about this discrepancy.
(ii) Dividend amount of ` 50,000 was not paid to the successor of Late
Mr. Mohan, in view of the court order restraining the payment due to
family dispute about succession.
You are required to analyse these cases with reference to provisions of the
Companies Act, 2013 regarding failure to distribute dividends.
5. Alpha Herbals, a Section 8 company is planning to declare dividend in the
Annual General Meeting for the Financial Year ended 31-03-2023. Mr. Chopra
is holding 800 equity shares as on date. State whether the act of the company
is according to the provisions of the Companies Act, 2013.
6. YZ Medical Instruments Limited is a manufacturing company & has proposed
a dividend @ 10% for the year 2022-2023 out of the profits of current year.
The company has earned a profit of ` 910 crores during 2022-2023. The

company does not intend to transfer any amount to the general reserves out
of the profits. Is YZ Medical Instruments Limited allowed to do so? Comment.
7. PQ Ltd. declared and paid 10% dividend to all its shareholders except Mr.
Kumar, holding 500 equity shares, who instructed the company to deposit the
dividend amount directly in his bank account. The company accordingly
remitted the dividend, but the bank returned the payment on the ground that
the account number as given by Mr. Kumar doesn't tally with the records of
the bank. The company, however, did not inform Mr. Kumar about this
discrepancy. Comment on this issue with reference to the provisions of the
Companies Act, 2013 regarding failure to distribute dividend.
8. Alex limited is facing loss in business during the financial year 2022-2023. In
the immediate preceding three financial years, the company had declared
dividend at the rate of 7%, 11% and 12% respectively. The Board of Directors
has decided to declare 12% interim dividend for the current financial year
atleast to be in par with the immediate preceding year. Is the act of the Board
of Directors valid?
ANSWERS
1. (a) Final Dividend
2. (d) at the discretion of the company.
3. (b) Maximum at the rate of 11%

4. (c) grants or donation to the Central Government for the purpose
of investor’s education and training.
5. (d) 18% p.a

1. Section 127 of the Companies Act, 2013 lays down the penalty for non-
payment of dividend within the prescribed time period of 30 days.
According to this section where a dividend has been declared by a company
but has not been paid or the warrant in respect thereof has not been posted

within 30 days from the date of declaration of dividend to any shareholder

entitled to the payment of dividend:
(a) every director of the company shall, if he is knowingly a party to the

default, be punishable with imprisonment maximum up to two years
and with minimum fine of rupees one thousand for every day during
which such default continues; and
(b) the company shall be liable to pay simple interest at the rate of 18%
per annum during the period for which such default continues.
Therefore, in the given case Mr. Ranjan will not succeed if he claims interest
at 20% interest as the limit under section 127 is 18% per annum.
2. According to section 124 of the Companies Act, 2013, where a dividend has
been declared by a company but has not been paid or claimed within 30 days
from the date of the declaration, the company shall, within 7 days from the
date of expiry of the said period of 30 days, transfer the total amount of
dividend which remains unpaid or unclaimed to a special account to be opened
by the company in any scheduled bank to be called the Unpaid Dividend
Account.
Further, according to section 127 of the Companies Act, 2013, where a

dividend has been declared by a company but has not been paid or the
warrant in respect thereof has not been posted within 30 days from the date
of declaration to any entitled shareholder, every director of the company
shall, if he is knowingly a party to the default, be liable for punishment.
In the present case, the Board of Directors of Future Fashions Limited at its
meeting recommended a dividend on its paid-up equity share capital which
was later on approved by the shareholders at the Annual General Meeting.
Thereafter, the directors at another meeting of the Board decided by
passing a board resolution for diverting the total dividend to be paid to the
shareholders for purchase of certain short-term investments in the name of
the company. As a result, dividend was paid to shareholders after 45 days.
(i). Since, declared dividend has not been paid within 30 days from the
date of the declaration to any shareholder entitled to the payment of
dividend, the company shall, within 7 days from the date of expiry of
the said period of 30 days, transfer the total amount of dividend which

remains unpaid or unclaimed to a special account to be opened by the

company in any scheduled bank to be called the Unpaid Dividend
Account.
(ii). The Board of Directors of Future Fashions Limited has violated section
127 of the Companies Act, 2013 as it failed to pay dividend to
shareholders within 30 days due to its decision to divert the total
dividend to be paid to shareholders for purchase of certain short-term
investments in the name of the company.
Consequences: The following are the consequences for violation of the

above provisions:
(a) Every director of the company shall, if he is knowingly a party to the
default, be punishable with maximum imprisonment of two years and
shall also be liable for a minimum fine rupees one thousand for every
day during which such default continues.
(b) The company shall also be liable to pay simple interest at the rate of 18%
p.a. during the period for which such default continues.
3. Section 123(6) of the Companies Act, 2013, specifically provides that a
company which fails to comply with the provisions of section 73 (Prohibition
of acceptance of deposits from public) and section 74 (Repayment of
deposits, etc., accepted before the commencement of this Act) shall not, so
long as such failure continues, declare any dividend on its equity shares.
In the given instance, the Board of Directors of ABC Tractors Limited
proposes to declare dividend at the rate of 20% to the equity shareholders,
in spite of the fact that the company has defaulted in repayment of public
deposits accepted before the commencement of the Companies Act, 2013.
Hence, according to the above provision, declaration of dividend by the ABC
Tractors Limited is not valid.
4. (i) Section 127 of the Companies Act, 2013 provides for punishment for
failure to distribute dividend on time. One of such situations is where
a shareholder has given directions to the company regarding the
payment of the dividend and those directions could not be complied
with but the non-compliance was not communicated to him.

In the given situation, the company has failed to communicate to the

shareholder Mrs. Sheela Bhatt about non-compliance of her direction
regarding payment of dividend. Hence, the penal provisions under
section 127 will be applicable.
(ii) Section 127, inter-alia, provides that no offence shall be deemed to
have been committed where the dividend could not be paid by reason
of operation of law.
In the present case, the dividend could not be paid because it was not
allowed to be paid by the court until the matter was resolved about
succession. Hence, there will not be any liability on the company and its
directors, etc.
5. According to Section 8(1) of the Companies Act, 2013, the companies
licenced under Section 8 of the Act (Formation of companies with
Charitable Objects, etc.) are prohibited from paying any dividend to their
members. Their profits are intended to be applied only in promoting the
objects for which they are formed.
Hence, in the instant case, the proposed act of Alpha Herbals, a company
licenced under Section 8 of the Companies Act, 2013, which is planning to
declare dividend, is not according to the provisions of the Companies Act,
2013.
6. According to section 123 of the Companies Act, 2013 a company may,
before the declaration of any dividend in any financial year, transfer such
percentage of its profits for that financial year as it may consider
appropriate to the reserves of the company. Such transfer is not mandatory
and the percentage to be transferred to reserves is at the discretion of the
company.
As per the given facts, YZ Medical Instruments Limited has earned a profit
of ` 910 crores for the financial year 2022-2023. It has proposed a dividend
@ 10%. However, it does not intend to transfer any amount to the reserves
of the company out of the profits of current year.
As per the provisions stated above, the amount to be transferred to reserves
out of profits for any financial year is at the discretion of the company
acting through its Board of Directors. Therefore, at its discretion, if YZ
Medical Instruments Limited decides not to transfer any profit to reserves
before the declaration of dividend at 10%, it is legally allowed to do so.

7. Section 127 of the Companies Act, 2013 provides for punishment for failure
to distribute dividend on time. One of such situations is where a
shareholder has given directions to the company regarding the payment of
the dividend and those directions cannot be complied with and the same
has not been communicated to the shareholder.
In the instant case, PQ Ltd. has failed to communicate to the shareholder Mr.
Kumar about non-compliance of his direction regarding payment of dividend.
Hence, the penal provisions under section 127 will be attracted.
8. As per Section 123(3) of the Companies Act, 2013, the Board of Directors of
a company may declare interim dividend during any financial year out of
the surplus in the profit and loss account and out of profits of the financial
year in which such interim dividend is sought to be declared.
Provided that in case the company has incurred loss during the current
financial year up to the end of the quarter immediately preceding the date
of declaration of interim dividend, such interim dividend shall not be
declared at a rate higher than the average dividends declared by the
company during the immediately preceding three financial years.
According to the given facts, Alex Ltd. is facing loss in business during the
financial year 2022-2023. In the immediate preceding three financial years,
the company declared dividend at the rate of 7%, 11% and 12%
respectively. Accordingly, the rate of dividend declared shall not exceed
10%, the average of the rates (7+11+12=30/3) at which dividend was
declared by it during the immediately preceding three financial years.
Therefore, the act of the Board of Directors as to declaration of interim
dividend at the rate of 12% during the F.Y 2022-2023 is not valid.

CHAPTER a
9
ACCOUNTS OF
COMPANIES
LEARNING OUTCOMES

 Gain knowledge about preparation and maintenance of
books of account etc. to be kept by company.
 Identify the provisions as to preparation and filing of
financial statements and other related matters.
 Explain about the re-opening and revision of financial
statements.
 Gain knowledge about constitution, working and power of
National Financial Reporting Authority (NFRA).
 Comprehend various concepts related to Corporate Social
Responsibility (CSR).
 Explain procedure related to internal audit of companies.


CHAPTER OVERVIEW
This chapter explains the provisions of Chapter IX of the Companies Act, 2013
138 dealing with the accounts of companies. Chapter will also explain procedural
aspects described in relevant rules notified in this context. Following diagram
depicts the arrangement of relevant sections.
Books of account
Types of accounts to be
maintained Relevant books and papers
(Section 128 and 129)
Financial statement
Periodical Financial Results (Section 129A)
Re-opening and recasting of accounts on Court's or

Accounts of Companies
Tribunal's Orders (Section 130)

(Section 128- 138)
Voluntary revision of accounts (Section 131)
Constitution of NFRA & power of CG to prescribe

accounting standards (Section 132- 133)
Financial Statements, Board reports,etc (Section 134)
Corporate Social Responsibility (Section 135)
Right of members & Filing of Financial statement with

Registrar (Section 136- 137)
Internal Audit (Section 138)

ACCOUNTS OF COMPANIES 9.3
a
1. INTRODUCTION
Chapter IX Consists of sections 128 to 138 as well as the Companies
(Accounts) Rules, 2014.
Directors who are agents of shareholders and acting in fiduciary capacity, required
to report in order to disclose financial results (financial performance and position
through financial results) to shareholders so that the shareholders remain aware of
the working and affairs of the company. As stated earlier also, chapter IX of the
Companies Act, 2013, lays down various provisions related to maintenance of
proper books of account of the companies and allied aspects that are explained in
this chapter.
2. BOOKS OF ACCOUNT, ETC., TO BE KEPT BY

COMPANY [SECTION 128]
Company shall prepare
Books and papers Financial statement

Books of account
Keep at its registered office/any other place in India as

the Board of Directors (BOD) may decide
Open for inspection by directors
Preserved for 8 years

Inspection of Other
Books of financial
account of the Failure in compliance information
subsidiary by a outside
person -Only on India-on
authorisation by written
Fine (` 50,000 to 5 lacs)
BOD’s resolution request by
director
himself

Every company shall prepare books of account and other relevant books and
records and financial statement for every financial year.
Note:
(Despite these definition clauses already covered in chapter 1, a quick
reference shall be handy to recapitulate)
1. As defined in Section 2(13) of the Act, the “books of account” includes
records maintained in respect of
❑ All sums of money received and expended by a company and matters in
relation to which the receipts and expenditure take place;
❑ All sales and purchases of goods and services by the company;
❑ The assets and liabilities of the company; and
❑ The items of cost as may be prescribed under section 148 (Cost Audit) of the
Companies Act 2013 (“Act”) in the case of a company which belongs to any
class of companies specified under that section.
2. As per section 2(12) of this Act, the “book and paper” and “book or paper”
include books of account, deeds, vouchers, writings, documents, minutes and
registers maintained on paper or in electronic form.
3. Further as per section 2(40) of this Act, the “financial statement” in relation
to a company, includes-
❑ A balance sheet as at the end of the financial year;
❑ A profit and loss account, or in the case of a company carrying on any activity
not for profit, an income and expenditure account for the financial year;
❑ Cash flow statement for the financial year with exception in case of one
person company, small company, dormant company and private company (if
such private company is a start-up and has not committed a default in filing
its financial statements under section 137 of the said Act or annual return
under section 92 of the said Act with the Registrar 1);
❑ A statement of changes in equity, if applicable; and
1
Vide exemption notification GSR 583(E) dated 13th June, 2017

a
❑ Any explanatory note annexed to, or forming part of, any document referred
to in sub-clause (i) to sub-clause (iv)
It is worth noting here that for the purposes of this Act, the term ‘start-up’
or “start-up company” means a private company incorporated under the
Companies Act, 2013 or the Companies Act, 1956 and recognised as start-
up in accordance with the notification issued by the Department of Industrial
Policy and Promotion, Ministry of Commerce and Industry.
4. As per section 2(41) of this Act, the Financial Year, in relation to any
company or body corporate, means the period ending on the 31st day of
March every year, and where it has been incorporated on or after the 1st day
of January of a year, the period ending on the 31st day of March of the
following year, in respect whereof financial statement of the company or body
corporate is made up.
Example 1 - Mahindra Limited was incorporated as a company on 22 nd February
2022. Its first financial year shall comprises the period ending on the 31st day of the
March of the following year i.e. 31 st March 2023.
Two-year time from the date commencement of this Act was given to corporates
to align their financial year to the provisions contained in 2(41).
Provided that on an application made by a company or body corporate, which is a
holding company or a subsidiary or associate company of a company incorporated
outside India and which is required to follow a different financial year for
consolidation of its accounts outside India, the Central Government may, on the
basis of such application made in such form and manner as may be prescribed,
allow any period as its financial year, whether or not that period is a year.
It is worth noting that in case of a specified IFSC public company 2 and specified
IFSC private company 3 that is a subsidiary of a foreign company, the financial year
of the subsidiary may be same as the financial year of its holding company and
approval of the Tribunal shall not be required.
2
Vide notification GSR 08(E) dated 5th January, 2017
3

Earlier the power to hear and decide upon the application regarding different
financial year for consolidation of its accounts outside India was vested with
tribunal, which was assumed by Central Government through the Companies
(Amendment) Ordinance, 2018 dated 02.11.2018 (later repealed by the Companies
(Amendment) Ordinance, 2019 dated 12.01.2019). This is the reason behind “why
exemption notification specified above still carry the word tribunal” (which shall be
read as Central Government now). Ordinance also provided that pending before
the Tribunal shall be disposed of by the Tribunal in accordance with the provisions
applicable to it before commencement of such ordinance.
BOOKS OF ACCOUNT SHOULD GIVE A TRUE AND FAIR VIEW AND
MUST BE KEPT ON ACCRUAL BASIS AND DOUBLE-ENTRY SYSTEM OF
ACCOUNTING
Section 128(1) requires these books of account should give a
true and fair view of the state of the affairs of the company,
including that of its branch office(s) and explain the
transactions effected both at the registered office and its
branches.
Section 128(1) also requires such books of account shall be kept on accrual basis
and according to the double entry system of accounting. Students are advised
to take note:
1. A True and fair view of the state of the affairs means that the financial
statements are free from material misstatements and faithfully represents the
financial performance and positioning of an entity.
2. Accrual basis of accounting is an accounting assumption, or an accounting
concept followed in preparation of the financial statements, which warrants
recording income and expenses as they accrue (earned or incurred); opposite
to cash system when they are received or paid.
3. Double entry system of accounting is a method of recording any
transaction of a business in a set of accounts, in which every transaction has
a dual aspect of debit and credit and therefore, needs to be posted in at least
two accounts. Double aspect enables an effective control of business because
all the books of account must balance.

a
PLACE OF KEEPING BOOKS OF ACCOUNT

Section 128(1) further requires every company to prepare and keep the
books of account and other relevant books and papers and financial
statements at its registered office.
But first proviso to sub-section 1 provides that all or any of the books of account
may be kept at such other place in India as the Board of directors may decide.
Where such a decision is taken by the Board, the company shall within seven days
thereof file with the registrar a notice in writing as per rule 2A of the Companies
(Accounts) Rules, 2014 in form AOC-5 giving full address of that other place.
MAINTENANCE OF BOOKS OF ACCOUNT IN ELECTRONIC FORM

Second proviso to section 128(1) allows company to keep books of
account or other relevant papers in electronic mode as per manner
specified in the Rule 3 of the Companies (Accounts) Rules, 2014.
For the purposes of rule 3, the expression “electronic mode” includes electronic
form and electronic record as defined in clause (r) and (t) respectively of sub-
section (1) of section 2 of the Information Technology Act, 2000 4
Remain accessible in India [Rule 3(1)]
The books of account and other relevant books and papers maintained in electronic
mode shall remain accessible in India, at all times, so as to be usable for
subsequent reference.
Audit trail and edit log [Proviso to Rule 3(1)]
In order to ensure audit trial, in case of company which uses accounting software
for maintaining its books of account, the proviso to rule 3(1) requires that:
a. For the financial year commencing on or after the 1st day of April, 2023,
b. Every such company (which uses accounting software) shall use only such
accounting software,
c. Which has a feature of recording audit trail of each and every transaction,
4
Act 21 of 2000

d. Creating an edit log of each change made in books of account along with
the date when such changes were made and
e. Ensuring that the audit trail cannot be disabled.

Retain in original or accurate form [Rule 3(2) and Rule 3(3)]
Sub-rule 2 requires the books of account and other relevant books and papers
referred to in sub-rule (1) shall be retained completely in the format in which
they were originally generated, sent or received, or in a format which shall
present accurately the information generated, sent or received and the information
contained in the electronic records shall remain complete and unaltered.
Further sub-rule 3 requires the information received from branch offices shall
not be altered and shall be kept in a manner where it shall depict what was
originally received from the branches.
Proper storage, retrieval and legible display [Rule 3(4) and Rule 3(5)]
Sub-rule 4 requires the information in the electronic record of the document shall
be capable of being displayed in a legible form.
Further sub-rule 5 requires there shall be a proper system for storage, retrieval,
display or printout of the electronic records as the Audit Committee, if any, or the
Board may deem appropriate and such records shall not be disposed of or
rendered unusable, unless permitted by law.
Proviso to sub-rule 5 requires the back-up of the books of account and other books
and papers of the company maintained in electronic mode, including at a place
outside India, if any, shall be kept in servers physically located in India on a daily
basis.
Intimation to Registrar – Information of Service Provider [Rule 3(6)]

The company shall intimate to the Registrar on an annual basis at the time of filing
of financial statement following relevant information related to service provider :
a. The name of the service provider;

b. The internet protocol (IP) address of service provider;
c. The location of the service provider (wherever applicable);
d. Where the books of account and other books and papers are maintained on
cloud, such address as provided by the service provider.

a
e. Where the service provider is located outside India, the name and address of
the person in control of the books of account and other books and papers in
India.
BOOKS OF ACCOUNT - BRANCH OFFICE [SUB-SECTION 2]
Where a company has a branch office in or outside India, it shall be deemed to have
complied with the provisions of sub-section (1) if-
❑ Proper books of account relating to the transactions effected at the branch

office are kept at that office, and
❑ Proper summarised returns are sent on periodical basis by branch office to the
company at its registered office or other place (referred to sub-section 1).
As per Rule 4(1) of the Companies (Accounts) Rules, 2014, the summarised returns
of the books of account of the company kept and maintained outside India shall be
sent to the registered office at quarterly intervals, which shall be kept and maintained
at the registered office of the company and kept open to directors for inspection.
INSPECTION BY DIRECTORS [SUB-SECTION 3 & 4]
In case of books of account and other books and papers maintained by the
company within India.
Any director can inspect the books of account and other books and papers
maintained by the company within India during business hours. Hence same shall
be kept open for inspection at the registered office of the company or at such other
place in India.
In the case of financial information, if any, maintained outside the country
Where any other financial information maintained outside the country is required
by a director, the director shall furnish a request to the company setting out the
full details of the financial information sought, the period for which such
information is sought under Rule 4(2) of the Companies (Accounts) Rules, 2014
Sub-rule 3 requires the company shall produce such financial information to the
director within fifteen days of the date of receipt of the written request.

Note:
1. The financial information (referred in sub-rule 2 and 3 above) shall be sought
for by the director himself and not by or through his power of attorney holder
or agent or representative.
2. As per sub-section 4, where an inspection is made under sub-section 3, the
officers and other employees of the company shall give to the person making
such inspection all assistance in connection with the inspection which the
company may reasonably be expected to give.
Inspection in respect of any subsidiary company

The proviso to sub-section 3 provides that a person can inspect the books of
account of the subsidiary, only on authorisation by way of the board resolution.
Period for preservation of books [Sub-section 5]
The books of account, together with vouchers relevant to any
entry in such books, are required to be preserved in good order by
the company for a period of not less than eight years immediately
preceding the relevant financial year.
Note:
1. In case of a company incorporated less than eight years before the financial
year, the books of account for the entire period preceding the financial year
together with the vouchers shall be so preserved.
2. As per proviso to sub-section 5, where an investigation has been ordered in
respect of a company under Chapter XIV of the Act related to inspection,
inquiry or investigation, the Central Government may direct that the books of
account may be kept for such period longer than 8 years, as it may deem fit
and give directions to that effect.
Persons responsible and Penalty [Sub-section 6]

Following shall be punishable with fine not less than fifty thousand rupees, which
may extend to five lakh rupees; if duty-bound to comply with provisions of this
section (Section 128 of this Act) but contravene such provisions:
❑ Managing Director defined under section 2(54),

a
❑ Whole-Time Director, in charge of finance defined under section 2(94),

❑ Chief Financial Officer defined under section 2(19), or
❑ Any other person of a company charged by the Board with duty of complying
with provisions of section 128.
Illustration 1- True false
Statement – Vouchers need not to be preserved as part of requirement of preserving

books for period of 8 years.
Answer
False
Reason – As per section 128(5) of the Companies Act 2013, the books of
account, together with vouchers relevant to any entry in such books, are required
to be preserved in good order by the company for a period of not less than eight
years immediately preceding the relevant financial year.
Illustration 2
Can XYZ limited maintain its books of account on cash basis?
Answer
The Companies Act 2013 vide section 128(1) requires every company to prepare
books of account and other relevant books and papers and financial statement for
every financial year on accrual basis and according to double entry system of
accounting. No exception has been given by the Act to any class or classes of
companies from the above requirement. Hence XYZ Ltd. cannot maintain its books
of account on cash basis.
3. FINANCIAL STATEMENT [SECTION 129]

As per sub-section 1, the financial statement shall:
❑ Give a true and fair view of the state of affairs of the company or companies,
❑ Comply with the accounting standards notified under section 133, further
the items contained in such financial statements shall be in accordance with
the accounting standards and

❑ Shall be in the form or forms as may be provided for different class or classes
of companies in Schedule III.
Note
1. Schedule III has been amended vide Notification No. G.S.R. 404(E) dated 6th
April 2016 according to which Schedule III has been divided into two
divisions.
Division I deal with financial statement for a company whose financial
statement are required to comply with the Companies (Accounting
Standards) Rules, 20215.
Division II deals with financial statement for a company whose financial
statement is required to comply with the Companies (Indian Accounting
Standards) Rules, 20156.
2. Nothing contained in sub-section 1 to section 128 shall apply to any;
❑ Insurance company or
❑ Banking company or
❑ Company engaged in the generation or supply of electricity, or
❑ Other class of company for which a form of financial statement has been
specified in or under the Act governing such class of company.
3. Further, if matters which are not required to be disclosed by Act governing
the companies specified at point 2 above (such as Insurance Act, 1938;
Insurance Regulatory and Development Authority Act, 1999; Banking
Regulation Act, 1949; or Electricity Act, 2003), then non-disclosure of such
matters shall not be considered as not presenting a true and fair view of
the state of affairs of such company.
Note – Point 3 stated above can be further simplified in the sense that ‘Despite
non-disclosure of matters which are not required to be disclosed by
applicable governing Act, the financial statement of companies specified at
point 2 above are said to present a true and fair view of the state of affairs.’
5
Vide notification GSR 432(E) dated 23rd June, 2021 as amended from time to time
6
Vide notification GSR 111(E) dated 16th February, 2015 as amended from time to time

a
4. For the purposes of section 129, any reference to the financial statement
shall include any notes annexed to or forming part of such financial
statement, giving information required to be given and allowed to be given
in the form of such notes under this Act.
LAYING OF FINANCIAL STATEMENTS AT AGM [SUB-SECTION 2]

At every annual general meeting of a company, the Board of Directors of the
company shall lay before such meeting financial statements for the financial year.
CONSOLIDATED FINANCIAL STATEMENTS [SUB-SECTION 3]
Consolidation of financial Statement
Where a company has one or more subsidiaries or associate companies, it shall (in
addition to financial statements provided under sub-section 2);
❑ Prepare a consolidated financial statement (CFS) of the company and of all
the subsidiaries, associate companies and joint ventures in the same form and
manner as that of its own and in accordance with applicable accounting
standards,
❑ Which shall also be laid before the annual general meeting of the company
along with the laying of its financial statement under sub-section (2).
Salient features of financial statement of Subsidiaries, Associates and JVs –
Form [First proviso to Sub-section 3 read with rule 5]
The statement containing the salient feature of the financial statement of a
company’s subsidiary or subsidiaries, associate company or companies and joint
venture or ventures under the first proviso to sub-section (3) of section 129 shall
be in Form AOC-1 as per Rule 5 of the Companies (Accounts) Rules, 2014.
Manner of consolidation of Accounts [Second proviso to Sub-section 3 read
with rule 6]
Central Government may provide for the consolidation of accounts of companies

in such manner as may be prescribed under Rule 6 of the Companies (Accounts)
Rules, 2014, as explained below:
Manner of consolidation of Accounts - The consolidation of financial statements

of the company shall be made in accordance with the provisions of Schedule III of
the Act and the applicable accounting standards.

Exception to manner stated above

1. A company covered under sub-section (3) of section 129 which is not
required to prepare consolidated financial statements under the Accounting
Standards, it shall be sufficient if the company complies with provisions of
consolidated financial statements provided in Schedule III of the Act.
2. For a company which does not have a subsidiary or subsidiaries but has one
or more associate companies or Joint Ventures or both will not be required
to comply with this rule of consolidation of financial statements in respect of
associate companies or joint ventures or both, as the case may be, only for
the financial year commencing from the 1st day of April, 2014 and ending on
the 31st day of March, 2015.
3. Nothing in this rule shall apply in respect of consolidation of financial

statement by a company having subsidiary or subsidiaries incorporated
outside India commencing on or after 1st April 2014.
Exemptions from preparation of CFS
The preparation of consolidated financial statements by a company is not required

if it meets the following conditions:
a. It is a wholly owned subsidiary, or is a partially owned subsidiary of another

company and all its other members, including those not otherwise entitled to
vote, having been intimated in writing and for which the proof of delivery of
such intimation is available with the company, do not object to the company
not presenting consolidated financial statements;
b. It is a company whose securities are not listed or are not in the process of
listing on any stock exchange, whether in or outside India; and
c. Its ultimate or any intermediate holding company files consolidated financial

statements with the Registrar which are in compliance with the applicable
Accounting Standards.
Preparation, adoption and audit of consolidated financial statements [Sub-
section 4]
The provisions applicable to the preparation, adoption and audit of the financial
statements of a holding company shall, mutatis mutandis, also apply to the
consolidated financial statements.

a
DISCLOSURE OF DEVIATION FROM ACCOUNTING STANDARDS

ALONG WITH REASON AND EFFECT THEREOF [SUB-SECTION 5]
Without prejudice to sub-section (1), where the financial statements of a company
do not comply with the accounting standards referred to in sub-section (1), the
company shall disclose in its financial statements, the deviation from the
accounting standards, the reasons for such deviation and the financial effects, if
any, arising out of such deviation.
EXEMPTION BY CENTRAL GOVERNMENT IN PUBLIC INTEREST [SUB-
SECTION 6]
The Central Government may, on its own or on an application by a class or classes
of companies, by notification, exempt any class or classes of companies from
complying with any of the requirements of this section or the rules made
thereunder, if it is considered necessary to grant such exemption in the public
interest and any such exemption may be granted either unconditionally or subject
to such conditions as may be specified in the notification.
Section 129 shall not apply to the Government Companies engaged in defence
production to the extent of application of relevant Accounting Standard on
segment reporting7
The exceptions, modifications and adaptations provided above shall be applicable
only to those Government Companies which has not committed a default in filing
its financial statements under section 137 of the said act or annual return under
section 92 of the said act with the registrar 8
PENALTY [SUB-SECTION 7]
If a company contravenes the provisions of this section, the managing director, the
whole-time director in charge of finance, the Chief Financial Officer or any other
person charged by the Board with the duty of complying with the requirements of
this section and in the absence of any of the officers mentioned above, all the
directors shall be punishable with imprisonment for a term which may extend to one
7
Exemption originally granted vide notification number G.S.R. 463(E) dated the 5th June, 2015,
later substituted vide notification number G.S.R. 802(E) dated 23.02.2018 to replace “AS-17”
with relevant Accounting Standard
8
Vide notification number G.S.R. 582(E) dated 13th June, 2017

year or with fine which shall not be less than fifty thousand rupees but which may
extend to five lakh rupees, or with both. Penal provision can be summarised as;
Company contravenes the provisions of Section 129

Whether any of below-mentioned officers are present?
MD WTD in charge of Finance CFO Any other person
Yes No (Absence)
Mentioned Officers All directors
Imprisonment upto 1yr

Fine from Rupees 50,000 to Rupees 5 lakh,
Or Both
Note: For listed companies, provisions contained in Regulation 33 and 52 of

Securities and Exchange Board of India (Listing Obligations and Disclosure
Requirements) Regulations, 2015 are to be applied in addition to provisions of
section 129 of this Act.
Illustration 3
Modern Furniture Limited (MFL) is required to prepare the financial statement that
comply with accounting standards and shall be in form specified in schedule III. But
the financial statement prepared and presented are not in compliance with applicable
accounting standards, therefore MFL required to disclose which of following:
i. Deviation
ii. Reason of deviation
iii. Financial effects arise out of such deviation.
Options
a. Only i
b. Only i and ii

a
c. Only i and iii

d. All of i, ii, and iii
Answer – d
Reason – Where the financial statements of a company, which required to but do
not comply with the accounting standards, the company shall disclose in its
financial statements, the deviation from the accounting standards, the reasons for
such deviation and the financial effects, if any, arising out of such deviation.
4. PERIODICAL FINANCIAL RESULTS [SECTION

129A]
The Central Government may, require such class or classes of unlisted companies,
as may be prescribed:
a. To prepare the financial results of the company on such periodical basis and in
such form as may be prescribed;
b. To obtain approval of the Board of Directors and complete audit or limited
review of such periodical financial results in such manner as may be prescribed;
c. File a copy with the Registrar within a period of thirty days of completion of the
relevant period with such fees as may be prescribed.
At present there are over 11 lakh unlisted companies actively operating in India.
Some of these are really large enough with widely-spread interests [to name
top 10 as on Dec 2022 - Serum Institute of India (Valued at ` 2,19,700 cr), Byju's
(` 1,82,000 cr), NSE ( ` 1,39,000 cr), Swiggy (` 88,600 cr), OYO ( ` 77,800 cr), Dream
11 (` 66,200 cr), Parle Products ( ` 62,600 cr), Razorpay (` 62,100 cr), Ola ( ` 60,500
cr), and Intas Pharma (` 59,300 cr)] that make corporate governance critical issue
in case of such unlisted companies as well. Hence this new section inserted vide
Amendment Act of 2020 aims to improve corporate governance of certain class or
classes of unlisted companies by requiring them to prepare financial results on
'periodic' basis in addition to annual submission of financial reports.
Mind it, no rule has been prescribed or notification has been made as on date
(30.04.2023) under this recently inserted section.

5. RE-OPENING OF ACCOUNTS ON COURT’S OR

TRIBUNAL’S ORDERS [SECTION 130]
This section seeks to provide for the re-opening of books of account and recasting
of financial statements.
Application to be made by:
Central Govt. SEBI Any other concerned person
Income Tax authorities Statutory regulatory body
Application made to Court/

Tribunal
Court/Tribunal passes an order to the effect that
Earlier accounts prepared in Affairs of company were mis-

fraudulent manner managed related to accounts
Notice to be served to applicants
Time Limit for reopening:

Take Representation into Maximum period of 8 FY
consideration, if any immediately preceding the
current FY except where
direction by Central
Pass order to revise/ recast the Government to maintain
accounts books of account is beyond
8 years.
The revised accounts shall be final

a
COURT/TRIBUNAL ORDER FOR RE-OPENING OF ACCOUNTS [SUB-

SECTION 1]
A company shall not
a. re-open its books of account and
b. recast its financial statements,
Unless an application in this regard is made by
a. the Central Government,
b. the Income-tax authorities,
c. the Securities and Exchange Board of India (SEBI),
d. any other statutory regulatory body or authority or
e. any person concerned.
& an order is made by a court of competent jurisdiction or tribunal to the effect
a. That the relevant earlier accounts were prepared in a fraudulent manner; or
b. The affairs of the company were mismanaged during the relevant period,
casting a doubt on the reliability of financial statements:
Proviso to section 130(1) requires the Court or Tribunal, as the case may be, shall:
❑ Give notice to the Central Government, Income-tax authorities, SEBI, or any
other statutory regulatory body or authority concerned, or any other person
concerned and
❑ Take into consideration the representations, if any, made by them before
passing any order under this section.
Sub-section 2 is sort of saving clause that provides, without prejudice to the

provisions of this Act, the accounts so revised or re-casted; shall be final.
TIME LIMIT [SUB-SECTION 3]

Order of re-opening of books of account shall only relate to eight financial years
immediately preceding the current financial year.
But where a direction has been issued by the Central Government (under the
proviso to section 128(5) for keeping of books of account for a period longer than
eight years, the books of account may be ordered to be re-opened within such
longer period.

6. VOLUNTARY REVISION OF FINANCIAL

STATEMENTS OR BOARD’S REPORT
[SECTION 131]
If it appears to the Directors of the Co.
FS and Board report

not in compliance with
section 129 &134
Prepare Revised FS
(Any 3 P.F.Y) Copy of order
of tribunal to
On approval and order be filed with
of tribunal Regsitrar
Revise Board's Report
(Any 3 P.F.Y)
VOLUNTARY REVISION OF FINANCIAL STATEMENT OR BOARD’S

REPORT ON THE APPROVAL OF TRIBUNAL [SUB-SECTION 1]
If it appears to the directors of a company that:
a. the financial statement of the company does not comply
with the provisions of section 129; or
b. the report of the Board does not comply with the provisions
of section 134
They may prepare revised financial statement or board’s report in respect of any
of the three preceding financial years.
After obtaining approval of the Tribunal on an application made by the company
in Form No. NCLT 1 within fourteen days of the decision taken by the Board.
A certified copy of the order of the Tribunal shall be filed with the Registrar of
Companies within thirty days of the date of receipt of the certified copy.

a
Note:
1. Section 131 deals with the revision of financial statement or boards report, as
the case may be, on a voluntary basis, if the board of directors so opines,
unlike section 130.
2. Such revised financial statement or report shall not be prepared or filed more
than once in a financial year.
3. Rule 77 of the National Company Law Tribunal Rules, 2016 requires:
a. The application shall contain the following particulars/details, namely:
❑ Financial year or period to which such accounts relates;
❑ The name and contact details of the Managing Director, Chief Financial
Officer, directors, Company Secretary and officer of the company responsible
for making and maintaining such books of account and financial statement;
❑ Where such accounts are audited, the name and contact details of the auditor
or any former auditor who audited such accounts;
❑ Copy of the Board resolution passed by the Board of Directors;
❑ Grounds for seeking revision of financial statement or Board’s Report;
❑ In case the majority of the directors of company or the auditor of the
company has been changed immediately before the decision is taken to apply
under section 131, the company shall disclose such facts in the application.
b. The company shall advertise the application at least fourteen days before
the date of hearing;
c. The Tribunal shall issue notice to the auditor of the original financial
statement and heard him.
d. The Tribunal may pass appropriate order in the matter as may deem fit, after
considering the application, hearing the auditor and/or any other person.
Note – As per first proviso to section 131(1), the tribunal shall also give notice
to the Central Government and the Income tax authorities and shall take
into consideration the representations, if any, made by that Government or
the authorities before passing any order under this section.

e. On receipt of approval from Tribunal a general meeting may be called and

notice of such general meeting along with reasons for change in financial
statements may be published in newspaper in English and in vernacular
language.
Note – As per third proviso to section 131(1), the detailed reasons for revision
of such financial statement or report shall also be disclosed in the Board’s
report in the relevant financial year in which such revision is being made.
f. In the general meeting, the revised financial statements, statement of
directors and the statement of auditors may be put up for consideration
before a decision is taken on adoption of the revised financial statements.
g. On approval in the general meeting, the revised financial statements along
with the statement of auditors or revised report of the Board, as the case may
be, shall be filed with the Registrar of Companies within thirty days of the
date of approval by the general meeting.
SCOPE OF REVISIONS [SUB-SECTION 2]

Where copies of the previous financial statement or report have been sent out to
members or delivered to the Registrar or laid before the company in general
meeting, the revisions must be confined to:
a. Correction in respect of which the previous financial statement does not
comply with the provisions of section 129; and
b. Correction in respect of which the previous board report does not comply
with the provisions of section 134; and
c. Making of any necessary consequential alternation.
FRAMING OF RULES BY THE CENTRAL GOVERNMENT IN RELATION TO
REVISED FINANCIAL STATEMENT/DIRECTOR’S REPORT [SUB-SECTION 3]
The Central Government may make rules as to the application of the provisions
of this Act in relation to revised financial statement or a revised director’s report
and such rules may, in particular:
a. Make different provisions according to which the previous financial statement
or director’s report are replaced or are supplemented by a document
indicating the corrections to be made;

a
b. Make provisions with respect to the functions of the company’s auditor in

relation to the revised financial statement or report;
c. Steps required to be taken by the directors.
Note:
Rule 77 of the National Company Law Tribunal Rules, 2016, notified in this regard
by the Central Government.
7. CONSTITUTION OF NATIONAL FINANCIAL

REPORTING AUTHORITY [SECTION 132]
CONSTITUTION OF NATIONAL FINANCIAL REPORTING AUTHORITY
(REFEREED AS TO NFRA OR THE AUTHORITY) [SUB-SECTION 1]
The Central Government may, by notification, constitute the National Financial
Reporting Authority (NFRA) to provide for matters relating to accounting and
auditing standards under this Act.
Note:
The Central Government hereby appoints the 1 st October 2018 as the date of
constitution of National Financial Reporting Authority, with head office at New
Delhi (as require by sub-section 12).
Extra Reading (only to lay the foundation)
Provisions pertaining to NFRA and Power vested with NFRA are applicable
only in context of those companies and bodies corporate that are governed
by the NFRA, hence at outset, it is essential to list-out them.
As per rule 3 of the National Financial Reporting Authority Rules 2018, the Authority
shall have power to monitor and enforce compliance with accounting standards
and auditing standards, oversee the quality of service under sub-section (2) of
section 132 or undertake investigation under sub-section (4) of such section of the
auditors of the following class of companies and bodies corporate, namely:
a. Companies whose securities are listed on any stock exchange in India or
outside India;

b. Unlisted public companies having paid-up capital of not less than rupees five
hundred crores or having annual turnover of not less than rupees one
thousand crores or having, in aggregate, outstanding loans, debentures and
deposits of not less than rupees five hundred crores as on the 31st March of
immediately preceding financial year;
c. Insurance companies, banking companies, companies engaged in the

generation or supply of electricity, companies governed by any special Act
for the time being in force or bodies corporate incorporated by an Act in
accordance with clauses (b), (c), (d), (e) and (f) of sub-section (4) of section 1
of the Act;
d. Body corporate or company or person, or any class of bodies corporate or

companies or persons, on a reference made to the Authority by the Central
Government in public interest; and
e. A body corporate incorporated or registered outside India, which is a

subsidiary or associate company of any company or body corporate
incorporated or registered in India as referred to in clauses (a) to (d), if the
income or net worth of such subsidiary or associate company exceeds twenty
percent of the consolidated income or consolidated net worth of such
company or the body corporate, as the case may be, referred to in clauses (a)
to (d).
FUNCTIONS AND DUTIES OF THE NFRA [SUB-SECTION 1A AND 2]
Sub-section 1A to section 132 provides that, National Financial Reporting Authority

shall perform its functions through such divisions as may be prescribed.
Further sub-section 2 to section 132 read with rule 4, 6 to 9 of the National

Financial Reporting Authority Rules 2018 lays down the functions and duties that
NFRA shall perform, namely:
The Authority shall protect the public interest and the interests of investors,
creditors and others associated with the companies or bodies corporate by
establishing high quality standards of accounting and auditing and exercising
effective oversight of accounting functions performed by the companies and
bodies corporate and auditing functions performed by auditors.

a
Without prejudice to the generality, the Authority in particular shall: -

a. Maintain details of particulars of auditors appointed in the companies and
bodies corporate governed by NFRA;
b. Recommend accounting standards and auditing standards for approval
by the Central Government;
Note:
For the purpose of recommending accounting standards or auditing
standards for approval by the Central Government, Rule 6 requires, the NFRA:
❑ Shall receive recommendations from the Institute of Chartered
Accountants of India (ICAI) on proposals for new accounting standards
or auditing standards or for Amendment to existing accounting
standards or auditing standards;
❑ May seek additional information from the ICAI on the recommendations
received under clause (a), if required.
The Authority shall consider the recommendations and additional
information in such manner as it deems fit before making recommendations
to the Central Government.
c. Monitor and enforce compliance with accounting standards and auditing

standards;
Note:
For the purpose of monitoring and enforcing compliance with accounting
standards under the Act by a company or a body corporate, Rule 7 requires
NFRA:
1. May review the financial statements of such company or body
corporate, as the case may be, and if so required, direct such company
or body corporate or its auditor by a written notice, to provide further
information or explanation or any relevant documents relating to such
company or body corporate, within such reasonable time as may be
specified in the notice.
2. May require the personal presence of the officers of the company or
body corporate and its auditor for seeking additional information or

explanation in connection with the review of the financial statements of

such company or body corporate.
3. Shall publish its findings relating to non-compliances on its website and

in such other manner as it considers fit, unless it has reasons not to do
so in the public interest and it records the reasons in writing.
4. Where the Authority finds or has reason to believe that any accounting
standard has or may have been violated, it may decide on the further
course of investigation or enforcement action through its concerned
Division.
For the purpose of monitoring and enforcing compliance with auditing
standards under the Act by a company or a body corporate, Rule 8 requires
NFRA:
1. May review working papers (including audit plan and other audit
documents) and communications related to the audit;
2. May evaluate the sufficiency of the quality control system of the auditor
and the manner of documentation of the system by the auditor; and
3. May perform such other testing of the audit, supervisory, and quality
control procedures of the auditor as may be considered necessary or
appropriate.
4. May require an auditor to report on its governance practices and
internal processes designed to promote audit quality, protect its
reputation and reduce risks including risk of failure of the auditor and
may take such action on the report as may be necessary.
5. May seek additional information or may require the personal presence

of the auditor for seeking additional information or explanation in
connection with the conduct of an audit.
6. Shall perform its monitoring and enforcement activities through its

officers or experts with sufficient experience in audit of the relevant
industry.
7. Shall publish its findings relating to non-compliances on its website and
in such other manner as it considers fit, unless it has reasons not to do
so in the public interest and it records the reasons in writing.

a
8. Shall not publish proprietary or confidential information, unless it has

reasons to do so in the public interest and it records the reasons in
writing.
9. May send a separate report containing proprietary or confidential
information to the Central Government for its information.
10. Where the Authority finds or has reason to believe that any law or
professional or other standard has or may have been violated by an
auditor, it may decide on the further course of investigation or
enforcement action through its concerned Division.
d. Oversee the quality of service of the professions associated with ensuring

compliance with such standards and suggest measures for improvement in
the quality of service;
Notes
1. Rule 9 provides, on the basis of its review, the NFRA may direct an
auditor to take measures for improvement of audit quality including
changes in their audit processes, quality control, and audit reports and
specify a detailed plan with time-limits.
2. It shall be the duty of the auditor to make the required improvements
and send a report to the NFRA explaining how it has complied with the
directions made by the NFRA.
3. The NFRA shall monitor the improvements made by the auditor and
take such action as it deems fit depending on the progress made by the
auditor.
4. The NFRA may refer cases with regard to overseeing the quality of
service of auditors of companies or bodies corporate referred to in rule
3 to the Quality Review Board constituted under the Chartered
Accountants Act, 1949 or call for any report or information in respect of
such auditors or companies or bodies corporate from such Board as it
may deem appropriate.
5. The NFRA may take the assistance of experts for its oversight and
monitoring activities.

e. Promote awareness in relation to the compliance of accounting standards

and auditing standards;
f. Co-operate with national and international organisations of independent

audit regulators in establishing and overseeing adherence to accounting
standards and auditing standards; and
g. Perform such other functions and duties as may be necessary or incidental

to the aforesaid functions and duties.
Note:
The Central Government may,
❑ By notification,
❑ Delegate any of its powers or functions under the Act to NFRA, other
than the power to make rules;
❑ Subject to such conditions, limitations and restrictions as may be
specified in such notification.
Sub-section 2 has overriding effects anything contained in any other law for
the time being in force.
COMPOSITION OF NFRA [SUB-SECTION 3, 3A, 3B]

The NFRA shall consist of
a. Chairperson, who shall be a person of eminence and having expertise in

accountancy, auditing, finance or law and
b. Such other members not exceeding fifteen consisting of part-time and full-
time members.
Each division of the NFRA shall be presided over by the Chairperson or a full-time
member authorised by the Chairperson.
There shall be an executive body of the NFRA consisting of the Chairperson and
full-time members of such Authority for efficient discharge of its functions.

a
Chairperson and Members shall be appointed by the Central Government in the

manner and on the terms as prescribed under the National Financial Reporting
Authority (Manner of Appointment and other Terms and Conditions of Service of
Chairperson and Members) Rules, 2018
The chairperson and members shall make a declaration to the Central Government in
the prescribed form regarding no conflict of interest or lack of independence in
respect of his or their appointment.
The chairperson and members, who are in full-time employment with National
Financial Reporting Authority shall not be associated with any audit firm (including
related consultancy firms) during the course of their appointment and two years after
ceasing to hold such appointment.
The following persons shall be appointed as part time members of NFRA, namely:
a. One member to represent the MCA, who shall be an officer not below the rank
of Joint Secretary, ex-officio;
b. One member to represent the CAG of India, who shall be an officer not below
the rank of Accountant General or Principal Director, ex-officio;
c. One member to represent the RBI, who shall be an officer not below the rank of
Executive Director, ex-officio;
d. One member to represent the SEBI, who shall be an officer not below the rank
of Executive Director, ex-officio;
e. President, ICAI, ex-officio;
f. Chairperson, Accounting Standards Board, ICAI, ex-officio;
g. Chairperson, Auditing and Assurance Standards Board, ICAI, ex-officio; and
h. Two experts from the field of accountancy, auditing, finance or law.

Sub-section 11 empowers the Central Government to appoint a secretary and such
other employees as it may consider necessary for the efficient performance of
functions by the National Financial Reporting Authority under this Act and the terms
and conditions of service of the secretary and employees shall be such as may be
prescribed.

POWER TO INVESTIGATE [SUB-SECTION 4]
NFRA shall have the power to investigate,
a. Into the matters of professional or other misconduct committed by any

member or firm of chartered accountants, registered under the Chartered
Accountants Act, 1949.
b. Either suo moto or on a reference made to it by the Central Government in

such manner as prescribed by rule 10 of the National Financial Reporting
Authority Rules, 2018
No other institute or body shall initiate or continue any proceedings in such matters
of misconduct where the NFRA has initiated an investigation under this section.
For the purposes of this sub-section, the expression "professional or other

misconduct" shall have the same meaning assigned to it as given under section 22
of the Chartered Accountants Act, 1949.
Sub-section 4 has overriding effects anything contained in any other law for the
time being in force.
Quasi-judicial powers [Section 132(4)(b)]
NFRA have the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908, while trying a suit, in respect of the following matters, namely
a. Discovery and production of books of account and other documents, at such

place and at such time as may be specified by the NFRA;
b. Summoning and enforcing the attendance of persons and examining them

on oath;
c. Inspection of any books, registers and other documents of any person

referred to in clause (b) at any place;
d. Issuing commissions for examination of witnesses or documents;
Power to make order [Section 132(4)(c)]
Where professional or other misconduct is proved, the NFRA shall have the power
to make order for:

a
Imposing penalty as stated below:
Liable (in case of) Minimum Maximum

Individual one lakh rupee five times of the fees received
Firms five lakh rupees ten times of the fees received
Debarring the member or the firm
From Minimum Maximum

period period
Appointed as an auditor or internal auditor or Six months Ten years
undertaking any audit in respect of financial
statements or internal audit of the functions and
activities of any company or body corporate; or
Performing any valuation as provided under Sec 247,
APPEAL AGAINST ORDERS OF NFRA [SUB-SECTION 5]

Any person aggrieved by any order of the NFRA issued under clause (c) of sub-
section (4), may prefer an appeal before the Appellate Tribunal in such manner
and on payment of such fee as may be prescribed.
MEETINGS OF NFRA [SUB-SECTION 10]
The National Financial Reporting Authority shall meet at such times and places and
shall observe such rules of procedure in regard to the transaction of business at its
meetings in such manner as prescribed under Rule 3 of the National Financial
Reporting Authority (Meeting for Transaction of Business) Rules, 2019.
Note – NFRA may, meet at such other places in India as it deems fit.
MAINTENANCE OF BOOKS OF ACCOUNT BY NFRA & AUDIT THEREOF BY
CAG [SUB-SECTION 13 & 14]
The National Financial Reporting Authority shall maintain such books of account
and other books in relation to its accounts in such form and in such manner as the
Central Government may, in consultation with the CAG of India prescribe.
The accounts of the NFRA shall be audited by the CAG of India at such intervals as
may be specified by him.
Such accounts as certified by the CAG of India together with the audit report
thereon shall be forwarded annually to the Central Government by the NFRA.

ANNUAL REPORT ON WORKING OF NFRA [SUB-SECTION 15]

The National Financial Reporting Authority shall prepare in such form and at such
time for each financial year as may be prescribed its annual report giving a full
account of its activities during the financial year and forward a copy thereof to the
Central Government and the Central Government shall cause the annual report and
the audit report given by the Comptroller and Auditor-General of India to be laid
before each House of Parliament.
Note:
Every existing body corporate other than a company governed by these rules, shall
inform the NFRA within 30 days of the commencement of NFRA rules, in Form
NFRA-1, the particulars of the auditor as on the date of commencement of these
rules.
A company or a body corporate other than a company governed under NFRA Rules
shall continue to be governed by the NFRA for a period of 3 years after it ceases to
be listed or its paid-up capital or turnover or aggregate of loans, debentures and
deposits falls below the limit stated therein [i.e. mentioned in points (a) to (e)
above].
Punishment in case of non-compliance - If a company or any officer of a company
or an auditor or any other person contravenes any of the provisions of NFRA Rules,
the company and every officer of the company who is in default or the auditor or
such other person shall be punishable as per the provisions of section 450 of the
Act.
8. CENTRAL GOVERNMENT TO PRESCRIBE

ACCOUNTING STANDARDS [SECTION 133]
Section 133 of the Companies Act, 2013 empowers the Central Government to
prescribe the accounting standards or any addendum thereto, as recommended by
the ICAI in consultation with and after examination of the recommendations made
by the NFRA.
Proviso to section 133 suggests, until the NFRA is constituted under section 132 of
the Companies Act, 2013, the Central Government may prescribe the standards of
accounting or any addendum thereto, as recommended by the ICAI in consultation
with and after examination of the recommendations made by the National Advisory

a
Committee on Accounting Standards (NACAS) constituted under the previous

company law. Since NFRA constituted in 2018, hence this proviso lost it operating
effects.
Note:
Exercising the powers conferred under section 133, the MCA on behalf of Central
Government so far has notified:
❑ Companies (Accounting Standards) Rules, 2021 9 and
❑ Companies (Indian Accounting Standards) Rules, 201510.
Regulation 48 of Securities and Exchange Board of India (Listing Obligations and
Disclosure Requirements) Regulations, 2015 supplement the provisions to section
133 of this Act by providing that, the listed entity shall comply with all the
applicable and notified Accounting Standards from time to time.
9. FINANCIAL STATEMENT, BOARD’S REPORT,

ETC. [SECTION 134]
Section 134 deals with approval of financial statement by the Board of Directors in
addition to report by the Board of Directors including Director’s responsibility
statement.
AUTHENTICATION OF FINANCIAL STATEMENTS [SUB-SECTION 1, 2,
AND 7]
Financial Statements
Signed on
behalf of the
Board
Chairperson (authorised by
Chief Executive Chief Financial Company
the Board)/ two directors (1
Officer Officer secretary
shall be MD,if any)
9
Vide notification GSR 432(E) dated 23rd June, 2021 as amended from time to time
10
Vide notification GSR 111(E) dated 16th February, 2015 as amended from time to time

As per sub-section 1, the financial statement shall be approved by the Board

of Directors before they are signed on behalf of the Board for the
submission to the auditor for his report thereon; at least by:
a. The chairperson of the company where he is authorised by
the Board OR the two directors out of which one shall be managing director,
if any, and
b. The Chief Executive Officer, and
c. The Chief Financial Officer and
d. The company secretary of the company, wherever they are appointed.
Consolidated financial statement, if any also need to be approved in similar manner.

In the case of one person company financial statements shall be approved only by
one director.
Sub-section 2 requires the auditors’ report shall be attached to every financial

statement.
Further sub-section 7 provides a signed copy of every financial statement, including
consolidated financial statement, if any, shall be issued, circulated or published
along with a copy of
a. Any notes annexed to or forming part of such financial statement:
b. The auditor’s report; and
c. The Board’s report referred to in sub section 3.
Illustration 4
The Board of Directors of ABC Ltd. wants to circulate unaudited accounts before the
Annual General Meeting of the shareholders of the Company. Whether such an act
of ABC Ltd. is tenable?
Answer
Section 129(2) of the Companies Act, 2013 provides that at every annual general
meeting of a company, the Board of Directors of the company shall lay before
such meeting financial statements for the financial year. Further section 134(7)
provides that signed copy of every financial statement, including consolidated

a
financial statement, if any, shall be issued, circulated or published along with a

copy each of
a. Any notes annexed to or forming part of such financial statement;
b. The auditor’s report; and
c. The Board’s report.
It, therefore, follows that unaudited accounts cannot be sent to members or

unaudited accounts cannot be filed with the Registrar of Companies. So, such
an act of ABC Ltd, is not tenable.
BOARD’S REPORT [SUB-SECTION 3, 3A, AND 4 READ WITH RULE 8

OF THE COMPANIES (ACCOUNTS) RULES, 2014]
Board’s report shall be attached to statements laid before a company in general
meeting.
Content of Board’s Report
Section 134(3) read with rule 8 prescribes, the board report shall include:
a. The web address, if any, where annual return referred to in sub-section (3)
of section 92 (i.e., Annual Return) has been placed;
b. Number of meetings of the Board;
c. Directors’ responsibility statement;
ca. Details in respect of frauds reported by auditors under sub-section (12)
of section 143 (i.e. Powers and duties of auditors….), other than those which
are reportable to the Central Government;
d. A statement on declaration given by independent directors under sub-
section (6) of section 149 (i.e., Company to have board of board of Directors in
relation to independent director);
e. In case of a company covered under sub-section (1) of section 178 (i.e.,

Nomination and Remuneration Committee and Stakeholders Relationship
Committee), company’s policy on directors’ appointment and
remuneration including criteria for determining qualifications, positive
attributes, independence of a director and other matters provided under
sub-section (3) of section 178;

Clause (e) shall not apply to the Government Companies 11

The exceptions, modifications and adaptations provided above shall be
applicable only to those Government Companies which has not committed
a default in filing its financial statements under section 137 of the said act
or annual return under section 92 of the said act with the registrar 12
f. Explanations or comments by the Board on every qualification,

reservation or adverse remark or disclaimer made—
i. By the auditor in his report; and
ii. By the company secretary in practice in his secretarial audit report;
g. Particulars of loans, guarantees or investments under section 186;
h. Particulars of contracts or arrangements with related parties referred to in
section 188 (1) (i.e., Related Party Transactions) in the form AOC-2;
i. The state of the company’s affairs;
j. The amounts, if any, which it proposes to carry to any reserves;
k. The amount, if any, which it recommends should be paid by way of dividend;
l. Material changes and commitments, if any, affecting the financial position

of the company which have occurred between the end of the financial year
of the company to which the financial statements relate and the date of the
report;
m. The conservation of energy, technology absorption, foreign exchange

earnings and outgo, in such manner as may be prescribed;
The Government companies engaged in producing defence equipment is

exempted from disclosure under clause m.13
n. A statement indicating development and implementation of a risk

management policy for the company including identification therein of
11
Exemption granted vide notification number G.S.R. 463(E) dated the 5th June, 2015
12
13
Exemption granted vide Companies (Accounts) Second Amendment Rules, 2015 dated 4th
September, 2015

a
elements of risk, if any, which in the opinion of the Board may threaten the
existence of the company;
o. The details about the policy developed and implemented by the company on
corporate social responsibility initiatives taken during the year;
p. In case of a listed company and every other public company having such
paid-up share capital of twenty five crore rupees or more calculated at
the end of the preceding financial year shall include, in the report by its Board
of directors, a statement indicating the manner in which formal annual
evaluation of the performance of the Board, its Committees and of
individual directors has been made;
Clause (p) shall not apply to the Government Companies 14

The exceptions, modifications and adaptations provided above shall be
applicable only to those Government Companies which has not committed
a default in filing its financial statements under section 137 of the said act
or annual return under section 92 of the said act with the registrar 15
q. Such other matters as prescribed Rule 8 of the Companies (Accounts) Rules,

2014, namely
i. The financial summary or highlights;
ii. The change in the nature of business, if any;
iii. The details of directors or key managerial personnel who were
appointed or have resigned during the year;
iiia. A statement regarding opinion of the Board with regard to integrity,

expertise and experience (including the proficiency) of the
independent directors appointed during the year.
Explanation - For the purposes of this clause, the expression
“proficiency” means the proficiency of the independent director as
ascertained from the online proficiency self-assessment test conducted
by the institute notified under sub-section (1) of section 150 (i.e.,
14
Exemption granted vide notification number G.S.R. 463(E) dated the 5th June, 2015
15

Manner of selection of Independent Directors and maintenance of

databank of independent directors).
iv. The names of companies which have become or ceased to be its
subsidiaries, joint ventures or associate companies during the year;
v. The details relating to deposits such as accepted during the year;
remained unpaid or unclaimed as at the end of the year; whether there
has been any default in repayment of deposits or payment of interest
thereon during the year and if so, number of such cases and the total
amount involved at the beginning of the year, maximum during the
year, and at the end of the year;
vi. The details of deposits which are not in compliance with the
requirements of Chapter V (i.e., Acceptance of Deposits by Companies)
of the Act;
vii. The details of significant and material orders passed by the regulators
or courts or tribunals impacting the going concern status and
company’s operations in future;
viii. The details in respect of adequacy of internal financial controls with
reference to the Financial Statements.
ix. A disclosure, as to whether maintenance of cost records as specified
by the Central Government under sub-section (1) of section 148 of this
Act, is required by the Company and accordingly such accounts and
records are made and maintained,
x. A statement that the company has complied with provisions relating to
the constitution of Internal Complaints Committee under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
xi. The details of application made or any proceeding pending under the
Insolvency and Bankruptcy Code, 2016 during the year along-with
their status as at the end of the financial year.
xii. The details of difference between amount of the valuation done at the
time of one-time settlement and the valuation done while taking loan
from the Banks or Financial Institutions along with the reasons thereof.
Note - Rule 8 of the Companies (Accounts) Rules, 2014 shall not apply
to One Person Company or Small Company. Instead rule 8A is applicable
upon them that is detailed on next page.

a

1. Where disclosures referred to in sub-section 3 to section 134 have been
included in the financial statements, such disclosures shall be referred to
instead of being repeated in the Board's report. (It is worth noting earlier
this benefit rest with specified IFSC public company 16 and specified IFSC
private company17only, but w.e.f. 31.7.2018 extended to all)
2. Where the policy referred to in clause (e) or clause (o) of section 134(3)
is made available on company's website, if any, it shall be sufficient
compliance of the requirements under such clauses if the salient features of
the policy and any change therein are specified in brief in the Board's report
and the web-address is indicated therein at which the complete policy is
available.
3. Board’s Report shall be prepared based on the standalone financial
statement of the company and shall report on the highlights of
performance of subsidiaries, associates and joint venture companies and
their contribution to the overall performance of the company during the
period under report.
Abridged Board's report for One Person Company and Small Company [Sub-
section 3A read with rule 8A of the Companies (Accounts) Rules, 2014]
The Board’s Report of One Person Company and Small Company shall be prepared
based on the stand-alone financial statement of the company, which shall be in
abridged form and contain the following;
a. The web address, if any, where annual return referred to in sub-section (3) of
section 92 has been placed;
b. Number of meetings of the Board;
c. Directors’ Responsibility Statement as referred to in sub-section (5) of section
134;
d. Details in respect of frauds reported by auditors under sub-section (12) of
section 143 other than those which are reportable to the Central Government;
16
17

e. Explanations or comments by the Board on every qualification, reservation or

adverse remark or disclaimer made by the auditor in his report;
f. The state of the company’s affairs;

g. The financial summary or highlights;
h. Material changes from the date of closure of the financial year in the nature
of business and their effect on the financial position of the company;
i. The details of directors who were appointed or have resigned during the year;
j. The details or significant and material orders passed by the regulators or
courts or tribunals impacting the going concern status and company’s
operations in future.
k. The particulars of contracts or arrangements with related parties referred to
in sub-section (1) of section 188 in the Form AOC-2.
Board’s Report in case of OPC [Sub-section 4]
In case of a One Person Company, the report of the Board of Directors to be
attached to the financial statement under this section shall, mean a report
containing explanations or comments by the Board on every qualification,
reservation or adverse remark or disclaimer made by the auditor in his report.
Students may note, after insertion of sub-section 3A to section 134 and rule 8A to
the Companies (Accounts) Rules, 2014 the importance of sub-section 4 reduced
substantially.
DIRECTORS’ RESPONSIBILITY STATEMENT [SUB-SECTION 5]
The Directors’ Responsibility Statement referred to in 134(3)(c) shall state that:
a. In the preparation of the annual accounts, the applicable accounting
standards had been followed along with proper explanation relating to
material departures
b. The directors had selected such accounting policies and applied them
consistently and made judgments and estimates that are reasonable and
prudent so as to give a true and fair view of the state of affairs of the
company at the end of the financial year and of the profit and loss of the
company for that period;

a
c. The directors had taken proper and sufficient care for the maintenance of
adequate accounting records in accordance with the provisions of this Act
for safeguarding the assets of the company and for preventing and
detecting fraud and other irregularities;
d. The directors had prepared the annual accounts on a going concern basis;
e. The directors, in the case of a listed company, had laid down internal
financial controls to be followed by the company and that such internal
financial controls are adequate, were operating effectively; and
The term “internal financial controls” for clause e specified above means
the policies and procedures adopted by the company for ensuring the
orderly and efficient conduct of its business, including adherence to
company’s policies, the safeguarding of its assets, the prevention and
detection of frauds and errors, the accuracy and completeness of the
accounting records, and the timely preparation of reliable financial
information.
f. The directors had devised proper systems to ensure compliance with the
provisions of all applicable laws and that such systems were adequate and
operating effectively.
Illustration 5
Modern Furniture Limited a listed entity has internal financial controls in place, during
the financial year a failure in control system has been reported; controls were reinstated
soon after such incident. Whether directors in Director’s Responsibility Statement can
state that controls are adequate and operating efficiently?
Answer
Adequacy refers to the design of the control/system and signify whether the
control/system that is in place, is fit for purpose or not.
Operating effectively refers to whether the control/system in place has the
desired effect of mitigating the risk or not.
Here, adequacy and operating effectively together shall be read as adequate,
operating effectively and applicable throughout also.
Therefore, directors of Modern Furniture Limited in Director’s Responsibility
Statement can’t state that controls are adequate and operating efficiently.

SIGNING OF BOARD’S REPORT [SUB-SECTION 6]

The Board’s report and any annexures thereto shall be signed by
a. Chairperson of the company if he is authorised by the Board and
b. Where he is not so authorised, shall be signed by
i. At least two directors, one of whom shall be a managing director, or
ii. The director where there is one director.
CONTRAVENTION [SUB-SECTION 8]
If a company is in default in complying with the provisions of this section, the
company shall be liable to a penalty of three lakh rupees and every officer of the
company who is in default shall be liable to a penalty of fifty thousand rupees.
Penalty provisions are tabled below;
Persons liable Punishment

Company ` 3,00,000
Every officer of the company who is in default ` 50,000
Illustration 6
ABC Company is a one-person company and has only one director. Who shall
authenticate the balance sheet and statement of profit & loss and the Board‘s report?
Answer
In case of a One Person Company, the financial statements shall be signed by only
one director, for submission to the auditor for his report thereon. So, the financial
statements signed by one director shall be considered in order.
10. CORPORATE SOCIAL RESPONSIBILITY

[SECTION 135]
The corporate (as legal person) use variety of other capitals in blend with economic
capital provided by shareholders to make revenue, earn profit, ensure survival and
register growth. Hence instead of being responsible only towards fund providers,
the corporate is responsible for wide range of stakeholders including the society
within which it exists and operate (even to the environment as well, under the

a
concept of triple bottom line). India become torch bearer for rest of world by giving
legal mandate to corporate social responsibility by incorporating legal provisions
regarding same as section 135 in the Companies Act, 2013 that requires corporates
to mandatorily spend a prescribed percentage of their profits on certain specified
areas of social upliftment in discharge of their social responsibilities.
Broadly, Corporate Social Responsibility (CSR) implies a concept, whereby
companies decide to contribute to a better society and a cleaner environment – a
concept, whereby the companies integrate social and other useful concerns in their
business operations for the betterment of its stakeholders and society in general.
The provisions that are enshrined under section 135 of the Act pertaining to
Corporate Social Responsibility shall be referred in light of the Companies (Social
Responsibility Policy) Rules, 2014 (herein after referred as to ‘the CSR Rules’).
DEFINITIONS
Corporate Social Responsibility (CSR) (Rule 2(d) of the CSR Rules)
CSR means the activities undertaken by a Company in pursuance of its statutory
obligation laid down in section 135 of the Act in accordance with the provisions
contained in these rules, but shall not include the following, namely: -
i. Activities undertaken in pursuance of normal course of business of the
company
Note:
Any company engaged in research and development activity of new vaccine,
drugs and medical devices in their normal course of business may undertake
research and development activity of new vaccine, drugs and medical devices
related to COVID-19 for financial years 2020-21, 2021-22, 2022-23 subject to
the conditions that;
a. Such research and development activities shall be carried out in
collaboration with any of the institutes or organisations mentioned in
item (ix) of Schedule VII to the Act;
b. Details of such activity shall be disclosed separately in the Annual report
on CSR included in the Board’s Report

ii. Any activity undertaken by the company outside India except for training of
Indian sports personnel representing any State or Union territory at national
level or India at international level
iii. Contribution of any amount directly or indirectly to any political party under
section 182 of the Act
iv. Activities benefitting employees of the company as defined in clause (k) of

section 2 of the Code on Wages, 2019
v. Activities supported by the companies on sponsorship basis for deriving
marketing benefits for its products or services
vi. Activities carried out for fulfilment of any other statutory obligations under
any law in force in India.
CSR Committee (Rule 2(e) of the CSR Rules)
CSR Committee means the Corporate Social Responsibility Committee of the
Board referred to in section 135 of the Act (i.e., constituted under sub-section 1 of
section 135).
CSR Policy (Rule 2(f) of the CSR Rules)
CSR Policy means a statement containing;
a. The approach and direction given by the board of a company, taking into
account the recommendations of CSR Committee, and
b. Includes guiding principles for selection, implementation and monitoring of

activities as well as formulation of the annual action plan.
Administrative overheads (Rule 2(b) of the CSR Rules)
Administrative overheads means the expenses incurred by the company for

‘general management and administration’ of Corporate Social Responsibility
functions in the company but shall not include the expenses directly incurred for
the designing, implementation, monitoring, and evaluation of a particular
Corporate Social Responsibility project or programme.
International Organisation (Rule 2(g) of the CSR Rules)
International Organisation means an organisation notified by the Central

Government as an international organisation under section 3 of the United Nations

a
(Privileges and Immunities) Act, 1947, to which the provisions of the Schedule to
the said Act apply.
Net Profit (Rule 2(h) of the CSR Rules read with explanation to section 135 of
the Act)
Net profit means the net profit of a company as per its financial statement
prepared in accordance with the applicable provisions (net profit shall be calculated
in accordance with provisions of section 198) of the Act, and but shall not include
the following, namely: -
i. Any profit arising from any overseas branch or branches of the company,
whether operated as a separate company or otherwise; and
ii. Any dividend received from other companies in India, which are covered
under and complying with the provisions of section 135 of the Act.
In case of a foreign company covered under these rules, net profit means the net
profit of such company as per profit and loss account prepared in terms of clause
(a) of sub-section (1) of section 381, read with section 198 of the Act.
Ongoing Project (Rule 2(i) of the CSR Rules read with explanation to section
135 of the Act)
Ongoing Project means:
a. A multi-year project undertaken by a Company in fulfilment

of its CSR obligation having timelines not exceeding three
years excluding the financial year in which it was
commenced, and
b. Such project that was initially not approved as a multi-year

project but whose duration has been extended beyond
one year by the board based on reasonable justification.
Example 2
Modern Furniture Limited (MFL) undertake a CSR project in light of its CSR policy;
of placing and installing benches as public parks and gardens in supervision of
district administration. Initially it was estimated that project will be completed in a
span of 8-10 months; but due to renovation of half a dozen of parks the task of

installing benches there postponed till the construction is completed (which was
expected to take further couple of quarters). Board of MFL considering the
circumstances declare the project an ongoing project, extend the duration beyond
one year; and also provided reasonable justification. Whether board of MFL
correctly re-categories the project as ongoing project or not?
Rule 2(i) of the CSR rules provides that projects which are initially of less than a
year’s time (therefore not registered as multi-year project) but duration of which
extended beyond the one-year period, by board based on reasonable causes or
justification; shall be re-categories as ongoing project. Hence, decision of board of
MFL is legal and valid.
Public Authority (Rule 2(j) of the CSR Rules)
Public Authority means ‘Public Authority’ as defined in clause (h) of section 2 of

the Right to Information Act, 2005.
COMPANIES THAT REQUIRED TO CONSTITUTE A CSR COMMITTEE
AND COMPOSITION THEREOF [SUB-SECTION 1 and 9]
Criteria that mandate constitution of CSR committee:
A company shall constitute a Corporate Social Responsibility Committee of the

Board if during the immediately preceding financial year such company having;
a. Net worth of rupees five hundred crore or more or
b. Turnover of rupees one thousand crore or more or
c. Net profit of rupees five crore or more.
As per Rule 3(1) of CSR Rules, every company including its holding or subsidiary, and
a foreign company defined under clause (42) of section 2 of the Act having its branch
office or project office in India, which fulfils the criteria specified in sub-section (1)
of section 135 of the Act shall comply with the provisions of section 135 of the Act and
CSR rules
Further, proviso to rule 3(1) of CSR Rules states, a company having any
amount/balance in its Unspent Corporate Social Responsibility Account as per
section 135(6) shall constitute a CSR Committee and comply with the provisions
contained in sub-sections (2) to (6) of the said section.

a
1. Net-worth and Turnover is defined in clause (57) and (91) to section 2 of the Act,
respectively; same are stated under chapter 1 of this module. Whereas Net Profit
is defined under the Rule 2(h) of the CSR Rules read with explanation to section
135 of the Act.
2. The net worth, turnover or net profit of a foreign company of the Act shall be
computed in accordance with balance sheet and profit and loss account of such
company prepared in accordance with the provisions of clause (a) of sub-section
(1) of section 381 and section 198 of the Act.
Illustration 7
ABC Ltd is a company with a turnover of more than ` 1000 crores in each of the
preceding three financial years and have incurred a loss in one of the preceding three
financial years. Will it be required to constitute CSR committee?
Answer
As per section 135(1) of the Act, if any one of the three criteria (whether net worth,
or turnover or net profit) gets satisfied then the company is mandatorily required
to constitute CSR committee and comply with other CSR provisions. Hence, ABC
Ltd. will be required to constitute CSR committee and comply with other CSR
provisions based on its turnover. The mere fact that company has incurred loss in
one of the preceding three financial years will not be considered for determining
the applicability of CSR to the companies.
Exception
According to sub-section 9, where the amount to be spent by a company under
sub-section 5 does not exceed fifty lakh rupees, the requirement for
constitution of the Corporate Social Responsibility Committee shall not be
applicable and the functions of such Committee provided under this section shall,
in such cases, be discharged by the Board of Directors of such company.
Composition of CSR committee
Corporate Social Responsibility Committee of the Board consisting of three or
more directors, out of which at least one director shall be an independent
director.

Proviso to section 135(1) of the Act read with Rule 5 (1) of the CSR Rule further
states:
a. Where a company covered under section 135(1) but is not required to appoint
an independent director under section 149(4), it shall have in its Corporate
Social Responsibility Committee two or more directors, without such
independent director.
b. A private company having only two directors on its Board shall constitute its CSR
Committee with two such directors
c. A foreign company covered under these rules, the CSR Committee shall comprise
of at least two persons of which one person shall be as specified under clause
(d) of sub-section (1) of section 380 of the Act and another person shall be
nominated by the foreign company.
Note:
1. Independent Director is defined under section 2(47) of the Act, same is stated
under chapter 1 of this module.
2. As per section 135(2), the Board's report under sub-section (3) of section 134
shall disclose the composition of the Corporate Social Responsibility Committee.
Summary of the constitution of CSR Committee in different scenarios
Category Sub-category Constitution
Company not required to appoint an Two or more directors, without

covered independent director under independent director
under section 149(4)
section
private company having only Two such directors
135(1)
two directors
a foreign company Least two persons of which one

person shall be as specified under
clause (d) of sub-section (1)
of section 380 of the Act and another
person shall be nominated by the
foreign company

a
Not covered in any of sub- Three or more directors, out of

categories defined above which at least one shall be an
independent director.
DUTIES OF CSR COMMITTEE [SUB-SECTION 3 READ WITH RULE 5(2)]

The Corporate Social Responsibility Committee shall:
a. Formulate and recommend to the Board, a Corporate Social Responsibility
Policy which shall indicate the activities to be undertaken by the
company in areas or subject, specified in Schedule VII;
b. Recommend the amount of expenditure to be incurred on the activities
referred to in above clause; and
c. Monitor the Corporate Social Responsibility Policy of the company from time
to time.
Further, according to Rule 5(2) of Companies (CSR) Rules, 2014, the CSR Committee
shall formulate and recommend to the Board, an annual action plan in pursuance
of its CSR policy, which shall include the following, namely:
a. The list of CSR projects or programmes that are approved to be undertaken
in areas or subjects specified in Schedule VII of the Act
b. The manner of execution of such projects or programmes as specified in
sub-rule (1) of rule 4 (itself or through other section 8 company, etc.)
c. The modalities of utilisation of funds and implementation schedules for the
projects or programmes
d. Monitoring and reporting mechanism for the projects or programmes; and
e. Details of need and impact assessment, if any, for the projects undertaken
by the company.
Note:
Board may alter such plan at any time during the financial year, as per the
recommendation of its CSR Committee, based on the reasonable justification to
that effect.
DUTIES OF THE BOARD IN RELATION TO CSR [SUB-SECTION 4 READ WITH

RULE 9 OF THE CSR RULES]
The Board of every company referred to in sub-section (1) i.e., where CSR
committee required to be constituted, shall,

a. After taking into account the recommendations made by the Corporate Social
Responsibility Committee, approve the Corporate Social Responsibility
Policy for the company and
b. Disclose contents of such Policy in its report and
c. Also place it (CSR Policy) along with composition of the CSR committee and
project approved by board on the company's website; and
d. Ensure that the activities as are included in Corporate Social Responsibility

Policy of the company are undertaken by the company.
AMOUNT AND FORM OF CSR EXPENDITURE [SUB-SECTION 5 AND 6
READ WITH RULE 4, 7, AND 10 OF CSR RULES]
The Board of every company referred to in sub-section (1) i.e., where CSR
committee required to be constituted, shall ensure that the company spends, in
every financial year, at least two percent of the average net profits of the
company made during the three immediately preceding financial years.
Company shall give preference to the local area and areas around it where it
operates, for spending the amount earmarked for Corporate Social Responsibility
activities
The board shall ensure that the administrative overheads shall not exceed five
percent of total CSR expenditure of the company for the financial year.
Where the company has not completed the period of three financial years
since its incorporation
Where the company has not completed the period of three financial years since
its incorporation, the company shall spend, in every financial year, at least two
percent of the average net profits of the company made during such
immediately preceding financial years, in pursuance of its Corporate Social
Responsibility Policy.
Illustration 8
Compute the minimum amount that Modern Furniture Limited is required to spend on
account of Corporate Social responsibility year 2022-2023. MFL was incorporated in
August 2020. Net-profit made during the financial years 2020-2021 and 2021-2022 are
` 20 crore, and ` 38 crore respectively.

a
Options
a. ` 76 lac
b. ` 1.16 crore
c. ` 58 lac
d. Since the company has not completed the period of three financial years since
its incorporation, hence no CSR spending is required.
Answer – c
Reason – Section 135(5).
Surplus arising out of CSR activities [Rule 7(2) of CSR) Rules]
Any surplus arising out of the CSR activities shall:
 Not form part of the business profit of a company
And
✓ Be ploughed back into the same project or
✓ Be transferred to the Unspent CSR Account and spent in pursuance of CSR
policy and annual action plan of the company or
✓ Transfer such surplus amount to a Fund specified in Schedule VII, within a
period of six months of the expiry of the financial year.
Where the company spend in excess to minimum prescribed CSR amount
[Second proviso to Section 135(5) read with Rule 7(1)
If the company spends an amount in excess of the requirements provided under
this sub-section, such company may set off such excess amount against the
requirement to spend under this sub-section for up to immediate succeeding
three financial years subject to the conditions that:
a. The excess amount available for set off shall not include the surplus arising
out of the CSR activities, if any, in pursuance of sub-rule (2) of this rule.
b. The board resolution shall pass to that effect.
Where the company fails to spend minimum prescribed CSR amount [Sub-
section 6 read with Second proviso to Section 135(5)]
If the company fails to spend minimum prescribed CSR amount under section
135(5), the Board shall,
a. Specify the reasons for not spending the amount in board report prepared
under section 134(3)(o), and

b. Where the unspent amount relates to project/s other than ongoing project,
then such unspent amount shall be transferred to a Fund specified in
Schedule VII, within a period of six months of the expiry of the financial
year.
Or
Where any amount remaining unspent pursuant to any ongoing project
(undertaken by a company in pursuance of its CSR Policy), then such unspent
amount shall be transferred to Unspent Corporate Social Responsibility
Account by the company within a period of thirty days from the end of the
financial year.
Notes
1. Unspent Corporate Social Responsibility Account (referred as to
Unspent CSR Account) shall be operated with Scheduled bank.
2. Any sum transferred to Unspent CSR Account, shall be spent by the
company in pursuance of its obligation towards the Corporate Social
Responsibility Policy within a period of three financial years from the
date of such transfer.
3. In case of failure in spending the amount transferred in Unspent CSR
Account in pursuance of its obligation towards the CSR Policy within a
period of three financial years from the date of such transfer, the
company shall transfer the same to a Fund specified in Schedule VII,
within a period of thirty days from the date of completion of the third
financial year.
4. As per rule 10 of CSR Rules, until a fund is specified in Schedule VII for
the purposes of subsection (5) and (6) of section 135 of the Act, the
unspent CSR amount, if any, shall be transferred by the company to any
fund included in schedule VII of the Act.
CSR expenditure for creation or acquisition of a capital Asset [Rule 7(4) of CSR
Rules)
CSR amount may be spent by a company for creation or acquisition of a capital
asset, which shall be held by -
a. A company established under section 8 of the Act, or a Registered Public Trust
or Registered Society, having charitable objects and CSR Registration Number
under Rule 4(2); or

a
b. Beneficiaries of the said CSR project, in the form of self-help groups,

collectives, entities; or
c. A public authority.
Note
Any capital asset created by a company prior to the commencement of the
Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021, shall
within a period of 180 days from such commencement comply with the requirement
of this rule, which may be extended by a further period of not more than 90 days
with the approval of the Board based on reasonable justification.
Unspent CSR
Amount
Other than Ongoing

Ongoing Projects
Projects
transferred to Unspent
transferred to a Fund specified
Corporate Social
in Schedule VII
Responsibility Account
within a period of thirty within a period of six

days from the end of months of the expiry of
the financial year. the financial year
shall be spent by the company in pursuance of its

obligation towards the Corporate Social Responsibility
Policy within a period of three financial years from the
date of such transfer
IF Failed
the company shall transfer the same to a Fund

specified in Schedule VII, within a period of thirty days
from the date of completion of the third financial year.

CSR IMPLEMENTATION [RULE 4 OF THE CSR RULES]

CSR activities can be undertaken by company itself or through specified
entities – Onus (or ultimate responsibility) lies on Board [Sub-rule 1]
The Board shall ensure that the CSR activities are undertaken by the company itself
or through:
a. Connected charitable entity - A company established under section 8 of the

Act, or a registered public trust or a registered society, exempted under sub-
clauses (iv), (v), (vi) or (via) of clause (23C) of section 10 or registered under
section 12A and approved under 80 G of the Income Tax Act, 1961,
established by the company, either singly or along with any other company;
or
b. Entity established by Government – A company established under section

8 of the Act or a registered trust or a registered society, established by the
Central Government or State Government; or
c. Statutory entity - Any statutory body established under an Act of Parliament

or a State legislature to undertake activities covered in Schedule VII of the
Act; or
d. Any Charitable entity with three year of experience - A company

established under section 8 of the Act, or a registered public trust or a
registered society, exempted under sub-clauses (iv), (v), (vi) or (via) of clause
(23C) of section 10 or registered under section 12A and approved under 80
G of the Income Tax Act, 1961, and having an established track record of at
least three years in undertaking similar activities.
Notes:
1. CSR activities should be undertaken by the companies in project/ programme
mode. One-off events such as marathons/ awards/ charitable contribution/
advertisement/ sponsorships of TV programmes etc. would not be qualified as
CSR expenditure.18
18
MCA vide General Circular No. 21/2014 dated 18th June 2014

a
2. Expenses incurred by companies for the fulfillment of any Act/ Statute of

regulations (such as Labour Laws, Land Acquisition Act etc.) would not count
as CSR expenditure under the Companies Act.
3. Registered Trust would include Trusts registered under Income Tax Act 1961,
for those states where registration of Trust is not mandatory.
4. Contribution to Corpus of a Trust/ society/ section 8 companies etc. will

qualify as CSR expenditure as long as (a) the Trust/ society/ section 8
companies etc. is created exclusively for undertaking CSR activities or (b)
where the corpus is created exclusively for a purpose directly relatable to a
subject covered in Schedule VII of the Act.
Registration of undertake CSR activity [Sub-rule 2]

Every entity, covered under sub-rule (1), who intends to undertake any CSR activity,
shall register itself with the Central Government by filing the form CSR-1
electronically with the Registrar, with effect from the 01 st day of April 2021.
The provisions of this sub-rule shall not affect the CSR projects or programmes
approved prior to the 01st day of April 2021.
Form CSR-1 shall be signed and submitted electronically by the entity and shall be
verified digitally by a Chartered Accountant in practice or a Company Secretary in
practice or a Cost Accountant in practice.
On the submission of the Form CSR-1 on the portal, a unique CSR Registration
Number shall be generated by the system automatically.
International Organisations may be engaged [Sub-rule 3]
A company may engage international organisations for designing, monitoring
and evaluation of the CSR projects or programmes as per its CSR policy as well as
for capacity building of their own personnel for CSR.
Note:
Expenditure incurred by Foreign Holding Company for CSR activities in India will
qualify as CSR spending of the Indian subsidiary, if, the CSR expenditures are routed
through Indian subsidiaries and if the Indian subsidiary is required to do so as per

CSR projects can be undertaken in collaboration [Sub-rule 4]

A company may also collaborate with other companies for undertaking projects or
programmes or CSR activities in such a manner that the CSR committees of
respective companies are in a position to report separately on such projects or
programmes in accordance with these rules.
Onus to ensure application fund lies on Board [Sub-rule 5]

The Board of a company shall satisfy itself that the funds so disbursed have been
utilised for the purposes and in the manner as approved by it and the Chief
Financial Officer or the person responsible for financial management shall
certify to the effect.
Board shall monitor ongoing projects [Sub-rule 6]
In case of ongoing project, the Board of a Company shall monitor the
implementation of the project with reference to the approved timelines and year-
wise allocation and shall be competent to make modifications, if any, for smooth
implementation of the project within the overall permissible time period.
Illustration 9
Can an international organisation be engaged for implementation of CSR project?
Answer
Yes, an international organisation may be engaged for implementation of CSR
projects; but engagement shall be restricted to the designing, monitoring and
evaluation of the CSR projects or programmes as per its CSR policy as well as for
capacity building of their own personnel for CSR, as per rule 4(3) of CSR rules.
CSR REPORTING [RULE 8 OF CSR RULES]
Annual Reporting on CSR as part of Board Report [Sub-Rule 1 and 2]
The Board's Report of a company (that covered under these rules, basically those
required to constitute CSR committee) pertaining to any financial year shall include
an annual report on CSR containing particulars.
While as per sub-rule 2, in case of a foreign company, the balance sheet filed under
clause (b) of sub-section (1) of section 381 of the Act, shall contain an annual report
on CSR.

a
Note:
Annexure I and II are provided to the CSR rules as format for such annual reporting.
Annexure I provides the format for the annual report on CSR activities to be
included in the board’s report for financial year commencing before the 1st day of
April, 2020.
While Annexure II prescribes the format for the annual report on CSR activities to
be included in the board’s report for financial year commencing on or after the 1 st
day of April, 2020.
Impact Assessment [Sub-Rule 3]

Every company having average CSR obligation of ten crore rupees or more in
pursuance of section 135(5) of the Act, in the three immediately preceding financial
years, shall undertake impact assessment, through an independent agency, of their
CSR projects having outlays of one crore rupees or more, and which have been
completed not less than one year before undertaking the impact study.
The impact assessment reports shall be placed before the Board and shall be
annexed to the annual report on CSR.
A Company undertaking impact assessment may book the expenditure towards
Corporate Social Responsibility for that financial year, which shall not exceed two
percent of the total CSR expenditure for that financial year or fifty lakh rupees,
whichever is higher.
Penal Provisions [Sub-section 7]
If a company is in default in complying with the provisions of sub-section (5) or
sub-section (6), the company shall be liable to a penalty of twice the amount
required to be transferred by the company to the Fund specified in Schedule VII or
the Unspent Corporate Social Responsibility Account, as the case may be, or one
crore rupees, whichever is less, and every officer of the company who is in default
shall be liable to a penalty of one-tenth of the amount required to be transferred
by the company to such Fund specified in Schedule VII, or the Unspent Corporate
Social Responsibility Account, as the case may be, or two lakh rupees, whichever is
less.

Summary of penalties, if a company is in default in complying with the

provisions of sub-section (5) or sub-section (6) to section 135:
Liable Penalty
Company twice the amount required to be transferred by the company

to the Fund specified in Schedule VII or the Unspent
Corporate Social Responsibility Account, as the case may be,
or one crore rupees, whichever is less
Every officer, who one-tenth of the amount required to be transferred by the

is in default company to such Fund specified in Schedule VII, or the
Unspent Corporate Social Responsibility Account, as the
case may be, or two lakh rupees, whichever is less
SPECIAL INSTRUCTIONS OF THE CENTRAL GOVERNMENT [SUB-

SECTION 8]
The Central Government may give such general or special directions to a company
or class of companies as it considers necessary to ensure compliance of provisions
of this section and such company or class of companies shall comply with such
directions.
Activities specified under the Schedule VII
Activities which may be included by companies in their CSR Policies (i.e., Activities
as specified under Schedule VII) are as follows:
i. Eradicating hunger, poverty and malnutrition, promoting health care
including preventive health care and sanitation including contribution to the
Swach Bharat Kosh set-up by the Central Government for the promotion of
sanitation and making available safe drinking water;
ii. Promoting education, including special education and employment

enhancing vocation skills especially among children, women, elderly, and the
differently abled and livelihood enhancement projects;
iii. Promoting gender equality, empowering women, setting up homes and

hostels for women and orphans; setting up old age homes, day care centres
and such other facilities for senior citizens and measures for reducing
inequalities faced by socially and economically backward groups;

a
iv. Ensuring environmental sustainability, ecological balance, protection of flora

and fauna, animal welfare, agroforestry, conservation of natural resources and
maintaining quality of soil, air and water including contribution to the Clean
Ganga Fund set up by the Central Government for rejuvenation of river
Ganga;
v. Protection of national heritage, art and culture including restoration of

buildings and sites of historical importance and works of art; setting up public
libraries; promotion and development of traditional arts and handicrafts;
vi. Measures for the benefit of armed forces veterans, war widows and their
dependents, Central Armed Police Forces (CAPF) and Central Para Military
Forces (CPMF) veterans, and their dependents including widows;
vii. Training to promote rural sports, nationally recognised sports, paralympic

sports and Olympic sports;
viii. Contribution to the Prime Minister’s National Relief Fund or Prime Minister’s
Citizen Assistance and Relief in Emergency situations Fund (PM CARES FUND)
any other fund set up by the Central Government for socio-economic
development and relief and welfare of the Scheduled Castes, Tribes, other
backward classes, minorities and women;
ix. (a) Contribution to incubators or research development projects in the field
of science, technology, engineering and medicine, funded by Central
Government or State Government or any agency or Public Sector
Undertaking of Central Government or State Government, and
(b) Contributions to public funded Universities; Indian Institute of
Technology (IITs); National Laboratories and Autonomous Bodies
established under Department of Atomic Energy (DAE); Department of
Biotechnology (DBT); Department of Science and Technology (DST);
Department of Pharmaceuticals; Ministry of Ayurveda, Yoga and
Naturopathy, Unani, Siddha and Homoeopathy (AYUSH); Ministry of
Electronics and Information Technology and other bodies, namely Defense
Research and Development Organisation (DRDO);Indian Council of
Agricultural Research (ICAR); Indian Council of Medical Research (ICMR)
Council of Scientific and Industrial Research (CSIR), engaged in conducting
research in science, technology, engineering and medicine aimed at
promoting Sustainable Development Goals (SDGs);

x. Rural development projects;

xi. Slum area development. [For the purposes of this item, the term ‘slum area’
shall mean any area declared as such by the Central Government or any State
Government or any other competent authority under any law for the time
being in force.
xii. Disaster management, including relief, rehabilitation and reconstruction

activities.

The statutory provision and provisions of CSR Rules, 2014, is to ensure that while
activities undertaken in pursuance of the CSR policy must be relatable to Schedule VII
of the Companies Act 2013, the entries in the said Schedule VII must be interpreted
liberally so as to capture the essence of the subjects enumerated in the said Schedule.
The items enlisted in the amended Schedule VII of the Act, are broad-based and are
intended to cover a wide range of activities19
Practical Insight
Clarifications with respect to CSR on COVID

Outbreak of novel corona virus (COVID-19 or COVID) threatened the entire
mankind with severe social and economic consequences. COVID was declared
pandemic by WHO and national disaster by GoI. The prevention from widespread
of COVID and combating against same was possible only with war-footing efforts
of all including businesses and corporates. Hence CSR funds/expenditure required
to be channelised towards activities that are part of prevention and support
mechanism; therefore in order to give effect to the same following clarifications in
form of circulars are issued by MCA;
General Circular No. 10/2020, dated 23 rd March, 2020

The spending of CSR funds for COVID-19 is eligible CSR activity. Funds may be
spent for various activities related to COVID-19 under item nos. (i) and (xii) of
Schedule VII of the Act, relating to promotion of health care, including preventive
health care and sanitation, and, disaster management.
19
MCA vide General Circular No. 21/2014 dated 18th June 2014

a
General Circular No. 01/2021, dated 13th January, 2021

The spending of CSR funds for awareness campaigns/ programmes and public
outreach on COVID-19 Vaccination programme is an eligible CSR activity under
item no. (i), (ii) and (xii) of Schedule VII of the Act, relating to promotion of health
care, including preventive health care and sanitization, promoting education, and,
disaster management respectively.
General Circular No. 05/2021, dated 22 nd April, 2021
The spending of CSR funds for setting up makeshift hospitals and temporary
COVID Care facilities is an eligible CSR activity under item nos. (i) and (xii) of
Schedule VII of the Companies Act, 2013 relating to promotion of health care,
including preventive health care, and, disaster management respectively.
General Circular No. 09/2021, dated 5 th May, 2021
The spending of CSR funds for ‘creating health infrastructure for COVID care’,
‘establishment of medical oxygen generation and storage plants’,
‘manufacturing and supply of Oxygen concentrators, ventilators, cylinders
and other medical equipment for countering COVID-19’ or similar such
activities are eligible CSR activities under item nos. (i) and (xii) of Schedule VII of
the Companies Act, 2013 relating to promotion of health care, including preventive
health care, and, disaster management respectively.
Reference is also drawn to item no. (ix) of Schedule VII of the Companies Act, 2013
which permits contribution to specified research and development projects as well
as contribution to public funded universities and certain Organisations engaged in
conducting research in science, technology, engineering, and medicine as eligible
CSR activities.
The companies including Government companies may undertake the activities or

projects or programmes using CSR funds, directly by themselves or in collaboration
as shared responsibility with other companies, subject to fulfilment of CSR Rules
and the guidelines issued by MCA from time to time.
General Circular 13/2021, dated 30 th July, 2021
The spending of CSR funds of COVID- 19 vaccination for persons other than the
employees and their families, is an eligible CSR activity under item no. (i) of

Schedule VII of the Act relating to promotion of health care including preventive
health care and item no. (xii) relating to disaster management.
MCA Office Memorandum Dated 28 th March 2021
Any contribution made to PM CARES Fund shall qualify as CSR expenditure for
purpose of section 135 of this Act.
Practical Insight
Clarifications with respect to CSR on ‘Har Ghar Tiranga’ campaign
General Circular 08/2022, dated 26 th July, 2022
‘Har Ghar Tiranga’, a campaign under the aegis of Azadi Ka Amrit Mahotsav, is
aimed to invoke the feeling of patriotism in the hearts of the people and to promote
awareness about the Indian National Flag.
In this regard, it is clarified that spending of CSR funds for the activities related to
this campaign, such as mass scale production and supply of the National Flag,
outreach and amplification efforts and other related activities, are eligible CSR
activities under item no. (ii) of Schedule VII of the Companies Act, 2013 pertaining
to promotion of education relating to culture.
In case of specified IFSC public company20 and specified IFSC private company21 the
section 135 shall not apply for period of 5 years from the commencement of business
of a specified IFSC public company and specified IFSC private company.
After reading the provisions pertaining to CSR, a genuine question may strike in
your mind: why were a plethora of changes introduced in 2020-2021? CSR rules
almost re-written; but why?
The COVID management to some extent highlighted the pitfalls in public
infrastructure facilities, whereas CSR could play a drastic role in improving such
facilities, provided accountability is tagged with a full-proof mechanism, hence
need to consolidate the CSR provisions was felt and secondly, the CSR numbers
20
21

a
(tabled below)22 didn’t show convincing and steady growth.
Year No. of CSR Projects No. of Corporates CSR Expenditure (in Cr. ₹)
2020-21 8,009 1,619 8,828
2019-20 34,828 22,531 24,689
2018-19 32,248 25,099 20,150
2017-18 26,858 21,517 17,098
2016-17 23,076 19,552 14,344
11. RIGHT OF MEMBERS TO COPIES OF AUDITED

FINANCIAL STATEMENT [SECTION 136]
Section 136 read with Rule 10 and 11 of the Companies (Accounts) Rules 2014,
confirms a right of members to copies of audited financial statements and prescribe
the manner of circulation of financial statement. Relevant provisions are detailed
below:
WHAT, TO WHOM, WHEN & HOW [SUB-SECTION 1 AND 2 READ
WITH RULE 10 AND 11 OF THE COMPANIES (ACCOUNTS) RULES 2014]
What required to be circulated?
A copy of financial statements including
a. Consolidated financial statement, if any,
b. Auditor’s report and
c. Every other document required by law to be annexed or attached to the
financial statements, which are to be laid before a company in its general
meeting.
Proviso to sub-section 2 provides that every company having a subsidiary or
subsidiaries shall provide a copy of separate audited or unaudited financial
statements, as the case may be, as prepared in respect of each of its subsidiary to
any member of the company who asks for it.
22
Only for information of the students.

To whom copies shall be sent?

a. To every member of the company,
b. To every trustee for the debenture-holder of any debentures issued by the
company, and
c. To all persons other than such member or trustee, being the person so
entitled.
When (timing) to send?
At least twenty-one days before the date of the meeting.
First proviso to section 136(1) provides, even if the copies of the documents are
sent less than twenty-one days before the date of the meeting, they shall be
deemed to have been duly sent if it is so agreed by members:
a. if the company has a share capital – holding majority in number entitled
to vote and who represent not less than ninety-five percent of such part of
the paid-up share capital of the company as gives a right to vote at the
meeting;
Or
b. if the company has no share capital - having not less than ninety-five
percent of the total voting power exercisable at the meeting

In case of section 8 company the words "twenty-one days", shall be substituted
by the words "fourteen days".23
Mode and Manner of Circulation [Rule 11 of the Companies (Accounts) Rules,

2014]
Third Proviso to Section 136 (1) empowers central government to prescribe the
manner of circulation of financial statements of companies having such net worth
and turnover.
In this regard, Rule 11 of the Companies (Accounts) Rules, 2014 states the financial
statements, in case of all listed companies, and
23
Vide Notification No. GSR 466 (E), dated 5th June, 2015

a
Such public companies which have a net worth of more than one crore rupees
and turnover of more than ten crore rupees, may be sent:
a. By electronic mode to such members only whose
Shareholding is in Whose email are registered with

dematerialized format Depository for communication purposes
Shareholding is in But they have positively consented in

Otherwise than by writing for receiving by electronic mode
dematerialized format (this may not be relevant considering that
shareholding is not held otherwise than by
dematerialized form anymore)
b. By dispatch of physical copies through any recognised mode of delivery as

specified under section 20 of the Act, in all other cases.
Statement containing Silent Features may be circulated by Listed Company
Second proviso to section 136(1) provides that in the case of a listed company,
the provisions of this sub-section shall be deemed to be complied with:
a. If the copies of the documents are made available for inspection at its
registered office during working hours for a period of twenty-one days
before the date of the meeting and
b. A statement containing the salient features of such documents in the

Form AOC-3 (Form AOC-3A in case of companies which are required to
comply with Companies (Indian Accounting Standards) Rules, 2015) or copies
of the documents, as the company may deem fit, is sent to every member
of the company and to every trustee for the holders of any debentures
issued by the company not less than twenty-one days before the date of
the meeting
c. Unless the shareholders ask for full financial statements.

Summary
Copies of audited FS + CFS (if any) + Audit Report + other document
Sent to
Every member Every trustee for debenture holder Other entitled persons
At least 21 days before GM
Circulation of Financial statement
Listed companies Public co. (Net worth > 1 crore and Turn over > 10 crores)
Electronic mode Dispatch of physical copies (under Section 20)
Shareholders Shareholders not holding shares in In all other cases

holding shares in Demat form (not relevant any
Demat form more) + Consent given
Hosting on website
Fourth and Fifth Proviso to section 136(1) provides that a listed company shall also
on its website, (which is maintained by or on behalf of the company) place its
financial statements including:
a. Consolidated financial statements, if any,

b. Separate audited accounts in respect of each of subsidiary, if any
c. All other documents required to be attached thereto,
Students are advised to take note that sixth proviso to Section 136(1) in this
context provides that a listed company that has a subsidiary incorporated outside
India (referred as to foreign subsidiary),

a
Category Requirement
a. Where such foreign subsidiary The requirement of this proviso shall be met
is statutorily required to if such consolidated financial statement of
prepare consolidated financial such foreign subsidiary is placed on the
statement under any law of the website of the listed company.
country of its incorporation
b. where such foreign subsidiary The holding Indian listed company may
is not required to get its place such unaudited financial statement
financial statement audited on its website
under any law of the country of and
its incorporation and which does
Where such financial statement is in a
not get such financial statement
language other than English, a translated
audited
copy of the financial statement in English
shall also be placed on the website.
Illustration 10
RELM Industries Limited, a company incorporated under the Companies Act, 2013,
has its shares listed on a recognized Stock Exchange in India. One of the subsidiaries
of RELM Industries Limited is a foreign company incorporated outside India. In the
annual general meeting of the company, RELM Industries Limited has placed its
audited financial statement including consolidated financial statement on its website.
RELM Industries Limited has also placed on its website separate audited accounts of
all its subsidiaries located in India except one subsidiary, which is a foreign company
and located outside India on the grounds that such foreign company is not requi red
to get its financial statement audited under the company law of its country of
incorporation. You are required to examine whether RELM Industries Limited has
complied with the provisions of section 136?
Answer
No, RELM Industries Limited has not complied with the provisions of section 136
because RELM Industries Limited is also required to place unaudited financial
statement of its foreign subsidiary on its website even if such foreign subsidiary is
not required to get its financial statement audited as per the provisions of section
136. The holding Indian listed company (RELM Industries Limited in this case) may
place such unaudited financial statement on its website and where such financial

statement is in a language other than English, a translated copy of the financial

statement in English shall also be placed on the website.
In case of Nidhi company 24

Section 136 (1) shall apply, subject to the modification that, in the case of members
who do not individually or jointly hold shares of more than one thousand rupees
in face value or more than one per cent, of the total paid-up share capital,
whichever is less, it shall be sufficient compliance with the provisions of the section
if an intimation is sent by public notice in newspaper circulated in the district in
which the Registered Office of the company is situated stating the date, time and
venue of AGM and the financial statement with its enclosures can be inspected at
the registered office of the company and the financial statement with enclosures
are affixed in the notice board of the company and a member is entitled to vote
either in person or through proxy
INSPECTION [SUB-SECTION 2]
A company shall also allow every member or trustee of the holder of any
debentures issued by the company to inspect the documents stated under sub-
section (1) at its registered office during business hours.
CONTRAVENTION [SUB-SECTION 3]
If any default is made in complying with the provisions of section 136,
a. The company shall be liable to a penalty of 25,000 rupees and
b. Every officer of the company who is in default shall be liable to a penalty of
5,000 Rupees.
Vide General Circular No. 11/2015, dated 21 July 2015, clarification was issued
by MCA with regard to circulation and filing of financial statement.
1. A company holding general meeting after giving shorter notice as provided

under section 101 of the Act may also circulate financial statements (to be
laid/ considered in the same general meeting) at such shorter notice.
2. The format of accounts of foreign subsidiaries should be, as far as possible,

in accordance with requirements under the Companies Act, 2013. In case this
24
Vide Notification No. GSR 465 (E), dated 5th June, 2015

a
is not possible, a statement indicating the reasons for deviation may be

placed/ filed along with such accounts.
12. COPY OF FINANCIAL STATEMENT TO BE

FILED WITH REGISTRAR [SECTION 137]
This section provides that copies of financial statement including consolidated
financial statement, if any, along with all the documents annexed to financial
statement shall be filed with Registrar.
WHERE AGM CONVENED [SUB-SECTION 1 READ WITH RULE 12 OF
THE COMPANIES (ACCOUNTS) RULES 2014 AND RULE 3 OF THE
COMPANIES (FILING OF DOCUMENTS AND FORMS IN EXTENSIBLE
BUSINESS REPORTING LANGUAGE) RULES, 2015
What is required to be filed with registrar?
A copy of financial statements including
a. Consolidated financial statement, if any,
b. Along with all the documents which are required to be or attached to such
financial statements under this Act,
c. Duly adopted at the annual general meeting of the company, shall be filed
with the Registrar.
By when required to be filed?

Within thirty days of the date of annual general meeting except in case of OPC.
One Person Company (not require to conducted AGM) shall file a copy of the
financial statements duly adopted by its member, along with all the documents
which are required to be attached to such financial statements, within one hundred
eighty days from the closure of the financial year.
Mode, Manner and Form of filing
Every company shall file the financial statement with Registrar together with
applicable form as specified below along-with such fee or additional fee as
prescribe by Companies (Registration Offices and Fees) Rules, 2014:

a. Rule 12(1) of the Companies (Accounts) Rules, 2014 states every company
shall file the financial statement with Registrar together with Form AOC-4 and
the consolidated financial statement, if any with Form AOC-4. CFS.
b. Further rule 12(1A) states every Non-Banking Financial Company (NBFC) that
is required to comply with Indian Accounting Standards (Ind AS) shall file the
financial statements with Registrar together with Form AOC-4 NBFC (Ind AS)
and the consolidated financial statement, if any, with Form AOC-4 CFS NBFC
(Ind AS).
c. Rule 12 (1B) requires that every company covered under the provisions of
sub-section (1) to section 135 shall furnish a report on Corporate Social
Responsibility in Form CSR-2 to the Registrar for the preceding financial year
(2020-2021) and onwards as an addendum to Form AOC-4 or AOC-4 XBRL or
AOC-4 NBFC (Ind AS), as the case may be.
d. Rule 3(1) of the Companies (Filing of Documents and Forms in Extensible
Business Reporting Language) Rules, 2015 states that, the following class
of companies shall file their financial statements & other documents under
section 137 of the Act with the Registrar in e-form AOC-4 XBRL as per
Annexure-I
(i) companies listed with stock exchanges in India and their Indian
subsidiaries;
(ii) Companies having paid up capital of five crore rupees or above;
(iii) companies having turnover of one hundred crore rupees or above;
(iv) All companies which are required to prepare their financial statements
in accordance with Companies (Indian Accounting Standards) Rules,
2015
The companies which have filed their financial statements under Rule 3(1) of the
Companies (Filing of Documents and Forms in Extensible Business Reporting
Language) Rules, 2015 and erstwhile rules (i.e., the Companies (Filing of Documents
and Forms in Extensible Business Reporting Language) Rules, 2011) shall continue to
file their financial statements and other documents though they may not fall under
the class of companies specified therein in succeeding years. Meaning thereby
once company started reporting in XBRL format shall continue to report in
XBRL format in succeeding years also, even if criteria mentioned above is not
met in succeeding years.

a
Example 3
Amazon Company Limited, a company incorporated under the Companies Act,
2013, has a turnover of ` 150 crore and ` 90 crore during the financial year ended
31st March 2020 and 31 st March 2021 respectively. Now Amazon Company Limited
shall continue to file the financial statements and other documents under section 137
in e-form AOC-4 XBRL for the financial year ended 31st March 2021 even if the
company does not fall in the class of companies provided under Rule 3 of the
Companies (Filing of documents and forms in Extensible Business Reporting Language)
Rules, 2015.
Summary of Form and Manner of Filing
Category Standalone Consolidated

Financial
Statement (if any)
1. Companies listed with stock exchanges Shall mandatorily file their financial
in India and their Indian subsidiaries; statement in Extensible Business
2. Companies having paid up capital of Reporting Language (XBRL) format
five crore rupees or above; in e-form AOC-4 XBRL
3. Companies having turnover of one Using the Taxonomy provided in
hundred crore rupees or above; Annexure-II of the Companies
(Filing of Documents and Forms in
4. All companies which are required to
Extensible Business Reporting
prepare their financial statements in
Language) Rules, 2015, if preparing
accordance with the Companies (Indian
their financial statements as per the
Accounting Standards) Rules, 2015
Companies (Accounting Standards)
Note - Non-banking financial companies,
Rules, 2021
Housing finance companies and
Using the Taxonomy provided in
Companies engaged in the business of
Annexure-II A of the Companies
banking and insurance sector are
(Filing of Documents and Forms in
exempted from filing of financial
Extensible Business Reporting
statements under the Companies (Filing of
Language) Rules, 2015, if preparing
Documents and Forms in Extensible
their financial statements as per
Business Reporting Language) Rules, 2015
Companies (Indian Accounting
i.e., in XBRL format
Standards) Rules, 2015

Non-Banking Financial Company that is AOC-4 NBFC AOC-4 CFS NBFC

required to comply with Indian (Ind AS) (Ind AS)
Accounting Standards
Every Other Company not covered above Form AOC-4 Form AOC-4 CFS
Every company covered under the Shall furnish a report on CSR in

provisions of sub-section (1) to section Form CSR-2 as an addendum to the
135 i.e., Corporate Social Responsibility applicable form (out of those stated
(CSR) above, as the case may be).
If the financial statements are not adopted:

First proviso to Section 137(1) provides that where the financial statements are
not adopted at AGM or adjourned AGM, such un-adopted financial statements
along with the required documents shall be filed with the Registrar within 30 days
of the date of AGM.
The Registrar shall take them in his records as provisional till the financial statements
are filed with him after their adoption in the adjourned AGM for that purpose.
Further, second proviso to Section 137(1) provides, if the financial statements are
adopted in the adjourned AGM, then they shall be filed with the Registrar within
30 days of the date of such adjourned AGM with such fees or such additional fees
as may be prescribed.
Company having subsidiaries:
Fourth proviso to Section 137(1) provides a company shall, along with its financial
statements to be filed with the Registrar, attach the accounts of its subsidiary or
subsidiaries which have been incorporated outside India and which have not
established their place of business in India.
Fifth proviso to Section 137(1) provides in the case of a subsidiary which has
been incorporated outside India (herein referred to as "foreign subsidiary"), which
is not required to get its financial statement audited under any law of the country
of its incorporation and which does not get such financial statement audited, the
requirements of the fourth proviso shall be met if the holding Indian company files
such unaudited financial statement along with a declaration to this effect.
But where such financial statement is in a language other than English, along with
a translated copy of the financial statement in English.

a
The format of accounts of foreign subsidiaries should be, as far as possible, in

accordance with requirements under the Companies Act, 2013. In case this is not
possible, a statement indicating the reasons for deviation may be placed/ filed
along with such accounts.25
Illustration 11
Vandana Ltd., based in India, has many subsidiaries in India and outside India. It also
had associates and joint ventures. For the purpose of finalization of the consolidated
financial statements of the company for the year ended 31 March 2021, the
company’s management requested its foreign subsidiary, based out of Italy, to
provide its standalone financial statements. The Italian subsidiary company prepares
its financial statements in the local language of the country and the same is provided
to the Indian parent company as unaudited as the audit is not required by the Italian
subsidiary company. Please advise how the Indian parent should deal with this
financial statement.
Answer
Vandana Ltd. Would have to get the standalone financial statements of Italian
subsidiary company translated in English language and also get those aligned as
per its accounting policies for the purpose of consolidation.
Further, as per the requirements of section 137(1) of the Companies Act 2013,
Vandana Ltd. would need to file such unaudited financial statement of Italian
subsidiary company along with a declaration to this effect along with a translated
copy of the financial statement in English.
Further, the format of accounts of Italian subsidiary company should be, as far as
possible, in accordance with requirements under the Companies Act, 2013. In case
this is not possible, a statement indicating the reasons for deviation may be placed/
filed along with such accounts.
ANNUAL GENERAL MEETING NOT HELD [SUB-SECTION 2]
Where the AGM of a company for any year has not been held, the financial
statements along with the documents required to be attached, duly signed along
with the statement of facts and reasons for not holding the AGM shall be filed with
the Registrar within thirty days of the last date before which the AGM should have
25
vide General Circular no. 11/2015 dated 21 July 2015

been held and in such manner, with such fees or additional fees as may be
prescribed.
Illustration 12
The AGM of R Ltd., for laying the Annual Accounts there at for the year ended 31
March 2022, was not held. What remedy is available with the company regarding
compliance of the provisions of section 137 of the Companies Act, 2013 for filing of
copies of financial statements with the Registrar of Companies?
Answer
In the present case, though AGM was not held, it ought to be held by 30 September
2022 under sections 96 of the Companies Act, 2013.
Therefore, under the provisions of section 137(2), the financial statements along
with the documents required to be attached under this Act, duly signed along with
the statement of facts and reasons for not holding the AGM shall be filed with the
Registrar within thirty days of the last date before which the AGM should have been
held i.e. by 30 October 2022 along with such fees or additional fees as may be
prescribed.
Summary of Sub-section 1 and 2 to section 137
AGM
Held [137(1)] Not held [137(2)]
[Copy of FS + CFS + other Prescribed documents +

documents to be presented]: Statement of Facts & Reasons
Prescribed documents for not holding AGM
Adopted Un- adopted in AGM/ Adjourned File with ROC

AGM
Filed within 30 days of Within 30 days of the

Filed with registrar
AGM. Registrar takes last date before which
within 30 days of the
them as Provisional the AGM should have
date of AGM
in their records been held
Further adopted in
Adjourned AGM - filed
with Registrar within 30
days of the said meeting

a
Illustration 13 (In continuation to above illustration)

Will it make any difference in case the Annual Accounts were duly laid before
the AGM held on 27 September 2022 but the same were not adopted by the
shareholders?
Answer
Since the AGM has been held in time on 27 September 2022, the un-adopted
financial statements along with the required documents under sub-section (1) of
section 137 shall be filed with the Registrar within thirty days of the date of AGM
and the Registrar shall take them in his records as provisional till the financial
statements are filed with him after its adoption in the adjourned AGM for that
purpose.
PENALTY [SUB-SECTION 3]
If any of the provisions of section 137 is contravened, then;
The company shall be liable to a penalty of ten thousand rupees and in case of
continuing failure, with a further penalty of one hundred rupees for each day
during which such failure continues, subject to a maximum of two lakh rupees;
and
The managing director and the Chief Financial Officer of the company, if any, an d,
in the absence of the managing director and the Chief Financial Officer, any other
director who is charged by the Board with the responsibility of complying with the
provisions of this section, and, in the absence of any such director, all the directors
of the company, shall be liable to a penalty of ten thousand rupees, and in case
of continuing failure, with further penalty of one hundred rupees for each day
after the first during which such failure continues, subject to a maximum of fifty
thousand rupees.
Summary of penalty provisions
Person liable Penalty

Company Fine of ` 10,000 and
In case of continuing failure, with a
further penalty of ` 100 for each day
during which such failure continues,
subject to a maximum of ` 2 lakh.

MD and CFO of the company, if any; Fine of ` 10,000 and

In their absence In case of continuing failure, with a
Any other director who is charged by the further penalty of ` 100 for each day
Board with the responsibility; during which such failure continues,
In its absence subject to a maximum of ` 50,000.
All the directors of the company.
13. INTERNAL AUDIT [SECTION 138]

Section 138 read with Rule 13 of the Companies (Accounts) Rules 2014, provides
for internal audit in a company.
COMPANIES REQUIRED TO APPOINT INTERNAL AUDITOR [SUB-
SECTION 1 READ WITH RULE 13(1) OF COMPANIES (ACCOUNTS)
RULES, 2014]
a. Every listed company;
b. Every unlisted public company having;
i. Paid up share capital of fifty crore rupees or more during the
preceding financial year; or
ii. Turnover of two hundred crore rupees or more during the preceding
financial year; or
iii. Outstanding loans or borrowings from banks or public financial
institutions exceeding one hundred crore rupees or more at any point
of time during the preceding financial year; or
iv. Outstanding deposits of twenty-five crore rupees or more at any

point of time during the preceding financial year; and
c. Every private company having
i. Turnover of two hundred crore rupees or more during the preceding
financial year; or
ii. Outstanding loans or borrowings from banks or public financial
institutions exceeding one hundred crore rupees or more at any point
of time during the preceding financial year.

a
Summary of Rule 13(1) of the Companies (Accounts) Rules, 2014
Paid up share capital 50 cr. or more

during P.F.Y
Listed co.
Companies required to appoint
Turn over 200 cr or more during P.F.Y
Unlisted public co. Outstanding loan/borrowing from banks

internal auditor
or PFI exceeding100 cr or more at any

point of time during P.F.Y
Outstanding deposits 25 cr or more at any

point of time during P.F.Y
Turn over 200 cr or more during P.F.Y
Private Co. Outstanding loans/ borrowings from

banks or PFI exceeding 100 crores or
more at any point of time during P.F.Y
Note: An existing company covered under any of the above criteria shall comply
with the requirements of section 138 and this rule within 6 months of
commencement of such section.
WHO CAN BE APPOINTED AS INTERNAL AUDITOR? [SUB-SECTION 1

READ WITH RULE 13(1) OF COMPANIES (ACCOUNTS) RULES, 2014]
Sub-section 1 to section 138 states that internal auditor shall either be-
a. A chartered accountant or
b. A cost accountant or
c. Such other professional as may be decided by the Board to conduct internal

audit of the functions and activities of the company.

The term “Chartered Accountant” or “Cost Accountant” shall mean a “Chartered
Accountant” or a “Cost Accountant”, as the case may be, whether engaged in
practice or not’.
The internal auditor may or may not be an employee of the company.

MANNER AND INTERVAL OF INTERNAL AUDIT [SUB-SECTION 2 READ

WITH RULE 13(2) OF COMPANIES (ACCOUNTS) RULES, 2014]
Sub-section2 to section 138 empowers central government to draw rules, to prescribe
the manner and the intervals in which the internal audit shall be conducted and
reported to the Board.
In this regard, Rule 13(2) of the Companies (Accounts) Rules, 2014 states the Audit
Committee of the company or the Board shall, in consultation with the Internal Auditor,
formulate the scope, functioning, periodicity and methodology for conducting the
internal audit.
In case of a specified IFSC public company 26 and specified IFSC private company 27
the section 138 shall apply if the articles of the company provide for the same.
Illustration 14
Perfect Ltd is a listed company. The company is in the business of manufacturing of
steel and had its head office at Karnataka. The company’s operations are spread out
across India. The company appointed a firm of Chartered Accountants, N & Co. LLP,
as its internal auditors for the year ended 31st March 2023. However, for the financial
year 2023-24, the company is planning to have an in-house internal audit system
commensurate with its size and operations. If the company does that then it is
planning not to continue with N & Co. LLP as its internal auditors. Please advise.
Answer
In the given situation, if the internal audit function of the company is fine as per its
size and operations then it may decide not to continue with N & Co. LLP.
SUMMARY
◼ Every company shall prepare and keep at its registered office books of
account and other relevant books and papers and financial statement for
every financial year which give a true and fair view of the state of the affairs
of the company, including that of its branch office or offices, if any, and
explain the transactions effected both at the registered office and its branches
26
27

a
and such books shall be kept on accrual basis and according to the double
entry system of accounting.
◼ The financial statement shall give a true and fair view of the state of affairs of
the company or companies, comply with the accounting standards notified
under section 133 and shall be in the form or forms as may be provided for
different class or classes of companies in Schedule III. Provided that the items
contained in such financial statements shall be in accordance with the
accounting standards.
◼ A company shall not re-open its books of account and not recast its financial
statement, unless an application in this regard is made by the Central
Government, the Income-tax authorities, the Securities and Exchange Board
of India, any other statutory regulatory body or authority or any person
concerned and an order is made by a court of competent jurisdiction or the
Tribunal to the effect.
◼ If it appears to the directors of a company that the financial statement of the
company; or the report of the Board, do not comply with the provisions of
section 129 or section 134 they may prepare revised financial statement or a
revised report in respect of any of the three preceding financial years after
obtaining approval of the Tribunal on an application made by the company
in such form and manner as may be prescribed and a copy of the order passed
by the Tribunal shall be filed with the Registrar.
◼ National Financial Reporting Authority is an independent regulator set up to
oversee the auditing profession and to provide for the matters pertaining to
Accounting and Auditing Standards
◼ The Central Government may prescribe the standards of accounting or any
addendum thereto, as recommended by the Institute of Chartered
Accountants of India, constituted under section 3 of the Chartered
Accountants Act, 1949, in consultation with and after examination of the
recommendations made by the National Financial Reporting Authority.
◼ The financial statement, including consolidated financial statement, if any,
shall be approved by the Board of Directors before they are signed on behalf
of the Board by the chairperson of the company where he is authorised by
the Board or by two directors out of which one shall be managing director, if
any, and the Chief Executive Officer, the Chief Financial Officer and the

Company Secretary of the company, wherever they are appointed, or in the

case of One Person Company, only by one director, for submission to the
auditor for his report thereon. The auditors’ report shall be attached to every
financial statement. A report by its Board of Directors shall be attached to
statements laid before a company in general meeting.
◼ Every company having net worth of rupees five hundred crore or more, or
turnover of rupees one thousand crore or more or a net profit of rupees five
crore or more during any financial year the immediately preceding financial
year shall constitute a Corporate Social Responsibility Committee of the
Board consisting of three or more directors, out of which at least one director
shall be an independent director. The Board of every such company, shall
ensure that the company spends, in every financial year, at least two percent
of the average net profits of the company made during the three immediately
preceding financial year, or where the company has not completed the period
of three financial years since its incorporation, during such immediately
preceding financial years, in pursuance of its Corporate Social Responsibility
Policy:
◼ A copy of the financial statement, including consolidated financial
statements, if any, auditor’s report and every other document required by law
to be annexed or attached to the financial statements, which are to be laid
before a company in its general meeting, shall be sent to every member of
the company , to every trustee for the debenture-holder of any debenture
issued by the company, and to all persons other than such member or trustee,
being the person so entitled, not less than twenty-one days before the date
of the meeting.
◼ A copy of the financial statement, including consolidated financial statement,
if any, along with all the documents which are required to be or attached to
such financial statements under this Act, duly adopted at the annual general
meeting of the company, shall be filed with the Registrar within thirty days of
the date of annual general meeting in such manner, with such fees or
additional fees as may be prescribed.
◼ Every listed company; every unlisted public company (having paid up share
capital of fifty crore rupees or more during the preceding financial year; or
turnover of two hundred crore rupees or more during the preceding financial
year; or Outstanding loans or borrowings from banks or public financial

a
institutions exceeding one hundred crore rupees or more at any point of time
during the preceding financial year; or Outstanding deposits of twenty five
crore rupees or more at any point of time during the preceding financial year);
and every private company (having turnover of two hundred crore rupees or
more during the preceding financial year; or outstanding loans or borrowings
from banks or public financial institutions exceeding one hundred crore
rupees or more at any point of time during the preceding financial year) shall
be required to appoint an internal auditor, who shall either be a chartered
accountant or a cost accountant , or such other professional as may be
decided by the Board to conduct internal audit of the functions and activities
of the company.
TEST YOUR KNOWLEDGE

1. ABC Limited has its shares listed on a recognized stock exchange in India.
During the current financial year ending on 31st March 2023, the Securities
and Exchange Board of India (SEBI) has found some irregularities in the filings
made by the company. Accordingly, SEBI proposes to make an application to
the Tribunal for reopening of the books of account of the Company. You, as an
expert, are called upon by SEBI to advise the earliest financial year to be quoted
in application for reopening of books of account may be granted by Tribunal?
(a) 2018-2019
(b) 2016-2017
(c) 2013-2014
(d) 2014-2015
2. During the half year ended September 2022, the board of directors (BOD) of
New Era Limited has made an application to the Tribunal for revision in the
accounts of the company for the financial year ended on March 2020. Further
during the year ended March 2023, the BOD has again made an application to
the Tribunal for revision in the board’s report pertaining to the year ended
March 2022. You are required to state the validity of the acts of the Board of
directors.

(a) The act of the BOD is valid only to the extent of application made for
revisions in accounts as board’s report are not eligible for revision.
(b) The act of the BOD is valid as application made for revision in the
accounts and board’s report pertains to two different financial year.
(c) The act of the BOD is invalid as the law provides for only one time
application to be made in a financial year for revision of accounts and
boards report.
(d) The act of the BOD is invalid as to the application made for revision in
accounts pertains to a period beyond 2 years immediately preceding the year
2023. The application made for revision in the Board report is however valid
in law.
3. As per the provisions of the Companies Act, 2013, which of the following
statement is correct with respect to the surplus arising out of the CSR activities:
(a) The surplus cannot exceed five percent of total CSR expenditure of the
company for the financial year.
(b) The surplus shall not form part of the business profit of a company
(c) The surplus cannot exceed 10 percent of total CSR expenditure of the
company for the financial year.
(d) The surplus shall form part of the business profit of a company
4. Shri Limited (a company having CSR Committee as per the provision of Section
135 of the Companies Act, 2013) decides to spend and utilize the amount of
Corporate Social Responsibility on the activities for the benefit of all the
employees of Shri Limited. As per the provision of Companies Act, 2013 this
would mean that:
(a) This is the total amount spent on Corporate Social Responsibility
activities by Shri Limited for that financial year
(b) No amount spent on Corporate Social Responsibility activities by Shri
Limited for that financial year
(c) Only half of the total amount spent, shall be considered to be spent on
Corporate Social Responsibility activities by Shri Limited for that financial
year

a
(d) Only the amount that has been spent on the employees having salary of
` 20,000 per month or less, shall be considered be considered to be spent
on Corporate Social Responsibility activities by Shri Limited for that
financial year.
1. The registered office of the Bharat Ltd. is situated in a classified backward area of
Maharashtra. The Board wants to keep its books of account at its corporate office
in Mumbai which is conveniently located. The Board seeks your advice about the
feasibility of maintaining the accounting records at a place other than the
registered office of the company. Advice.
2. The Board of Directors of Vishwakarma Electronics Limited consists of Mr.
Ghanshyam (Director), Mr. Hyder (Director) and Mr. Indersen (Managing Director).
The company has also employed a Company Secretary.
The financial statements of the company were signed by Mr. Ghanshyam and
Mr. Hyder. Examine whether the authentication of financial statements of the
company was in accordance with the provisions of the Companies Act, 2013?
3. A Housing Finance Ltd. is a housing finance company having a paid-up share
capital of ` 11 crore and a turnover of ` 145 crore during the financial year
2022-23. Explain with reference to the relevant provisions and rules, whether it is
necessary for A Housing Finance Ltd. to file its financial statements in XBRL mode.
4. Herry Limited is a company registered in Thailand. SKP Limited (Registered in
India), a wholly owned subsidiary company of Herry Limited decided to follow
different financial year for consolidation of its accounts outside India. State the
procedure to be followed in this regard.
5. (i) Ravi Limited maintained its books of account under Single Entry System of
Accounting. Is it permitted under the provisions of the Companies Act, 2013?
(ii) State the persons responsible for complying with the provisions regarding
maintenance of Books of Account of a Company.
(iii) Whether a Company can keep books of Account in electronic mode
accessible only outside India?

6. The Government of India is holding 51% of the paid-up equity share capital of
Sun Ltd. The Audited financial statements of Sun Ltd. for the financial year
2021-22 were placed at its annual general meeting held on 31 st August 2022.
However, pending the comments of the Comptroller and Auditor General of
India (CAG) on the said accounts the meeting was adjourned without adoption
of the accounts. On receipt of CAG comments on the accounts, the adjourned
annual general meeting was held on 15th October, 2022 whereat the accounts
were adopted. Thereafter, Sun Ltd. filed its financial statements relevant to the
financial year 2021-22 with the Registrar of Companies on 12th November,
2022. Examine, with reference to the applicable provisions of the Companies
Act, 2013, whether Sun Ltd. has complied with the statutory requirement
regarding filing of accounts with the Registrar?
7. The Income Tax Authorities in the current financial year 2022-23 observed,
during the assessment proceedings, a need to re-open the accounts of Chetan
Ltd. for the financial year 2011-12 and, therefore, filed an application before
the National Company Law Tribunal (NCLT) to issue the order to Chetan Ltd.
for re-opening of its accounts and recasting the financial statements for the
financial year 2011-12. Examine the validity of the application filed by the
Income Tax Authorities to NCLT
ANSWERS
1. (d) 2014-2015
2. (b) The act of the BOD is valid as application made for revision
in the accounts and board’s report pertains to two different
financial year.
3. (b) The surplus shall not form part of the business profit of a
company
4. (b) No amount spent on Corporate Social Responsibility
activities by Shri Limited for that financial year

a

1. According to section 128(1) of the Companies Act, 2013, every company is
required to prepare and keep the books of accounts and other relevant books
and papers and financial statement for every financial year which give a true
and fair view of the state of the affairs of the company, including that of its
branch office or offices, if any, and explain the transactions effected both at
the registered office and its branches and such books shall be kept on accrual
basis and according to the double entry system of accounting.
The proviso to section 128(1) further provides that all or any of the books of
account aforesaid and other relevant papers may be kept at such other place
in India as the Board of Directors may decide and where such a decision is
taken, the company shall, within seven days thereof, file with the Registrar a
notice in writing giving the full address of that other place. Further company
may keep such books of account or other relevant papers in electronic mode
as per the Rule 3 of the Companies (Accounts) Rules, 2014.
Therefore, the Board of Bharat Ltd. can keep its books of account at its
corporate office in Mumbai by following the above-mentioned procedure.
2. According to section 134(1) of the Companies Act, 2013, the financial
statements, including consolidated financial statement, if any, shall be
approved by the Board of Directors before they are signed on behalf of the
Board by the chairperson of the company where he is authorised by the Board
or by two directors out of which one shall be managing director, if any, and
the Chief Executive Officer, the Chief Financial Officer and the company
secretary of the company, wherever they are appointed, or in the case of One
Person Company, only by one director, for submission to the auditor for his
report thereon.
In the instant case, the Balance Sheet and Profit and Loss Account have been
signed only by Mr. Ghanshyam and Mr. Hyder, the directors. In view of Section
134(1) of the Companies Act, 2013, Mr. Indersen, the Managing Director
should be one of the two signing directors. Since, the company has also
employed a Company Secretary, he should also sign the financial statements.

3. As per Rule 3(1) of the Companies (Filing of Documents and forms in Extensible
Business Reporting Language) Rules, 2015, following class of companies shall
file their financial statements and other documents under section 137 of the
Act with the Registrar in e-form AOC-4 XBRL as per Annexure-I:
(i) Companies listed with stock exchanges in India and their Indian
subsidiaries;
(ii) Companies having paid up capital of five crore rupees or above;
(iii) Companies having turnover of one hundred crore rupees or above;
(iv) All companies which are required to prepare their financial statements
in accordance with Companies (Indian Accounting Standards) Rules,
2015.
Provided further that non-banking financial companies, housing finance
companies and companies engaged in the business of banking and insurance
sector are exempted from filing of financial statements under these rules.
Hence A housing Finance Ltd., being a housing finance company, is exempted
from filing its financial statement in XBRL mode.
4. Where a company or body corporate, which is a holding company or a
subsidiary or associate company of a company incorporated outside India
and is required to follow a different financial year for consolidation of its
accounts outside India, the Central Government may, on an application made
by that company or body corporate in such form and manner as may be
prescribed, allow any period as its financial year, whether or not that period
is a year. Any application pending before the Tribunal as on the date of
commencement of the Companies (Amendment) Ordinance, 2018, shall be
disposed of by the Tribunal in accordance with the provisions applicable to it
before such commencement. Also, a company or body corporate, existing on
the commencement of this Act, shall, within a period of two years from such
commencement, align its financial year as per the provisions of this clause.
SKP Limited is advised to follow the above procedure accordingly.
5. (i) According to Section 128(1) of the Companies Act, 2013, every company
shall prepare “books of account” and other relevant books and papers
and financial statement for every financial year. These books of account
should give a true and fair view of the state of the affairs of the

a
company, including that of its branch office(s). These books of account

must be kept on accrual basis and according to the double entry system
of accounting. Hence, maintenance of books of account under Singly
Entry System of Accounting by Ravi Limited is not permitted.
(ii) Persons responsible to maintain books: As per Section 128 (6) of the
Companies Act, 2013, the person responsible to take all reasonable
steps to secure compliance by the company with the requirement of
maintenance of books of account etc. shall be:
(a) Managing Director,

(b) Whole-Time Director, in charge of finance
(c) Chief Financial Officer
(d) Any other person of a company charged by the Board with duty
of complying with provisions of section 128.
(iii) A Company has the option of keeping such books of account or other
relevant papers in electronic mode as per Rule 3 of the Companies
(Accounts) Rules, 2014. According to such Rule,
(a) The books of account and other relevant books and papers
maintained in electronic mode shall remain accessible in India so
as to be usable for subsequent reference.
Provided that for the financial year commencing on or after the
1st day of April, 2022, every company which uses accounting
software for maintaining its books of account, shall use only such
accounting software which has a feature of recording audit trail
of each and every transaction, creating an edit log of each change
made in books of account along with the date when such changes
were made and ensuring that the audit trail cannot be disabled.
(b) There shall be a proper system for storage, retrieval, display or

printout of the electronic records as the Audit Committee, if any,
or the Board may deem appropriate and such records shall not be
disposed of or rendered unusable, unless permitted by law.
(c) The back-up of the books of account and other books and papers
of the company maintained in electronic mode, including at a

place outside India, if any, shall be kept in servers physically

located in India on a periodic basis.
Hence, a company cannot keep books of account in electronic mode

accessible only outside India.
6. According to first proviso to section 137(1) of the Companies Act, 2013, where
the financial statements are not adopted at annual general meeting or
adjourned annual general meeting, such un-adopted financial statements
along with the required documents shall be filed with the Registrar within
thirty days of the date of annual general meeting and the Registrar shall take
them in his records as provisional till the financial statements are filed with
him after their adoption in the adjourned annual general meeting for that
purpose.
According to second proviso to section 137(1) of the Companies Act, 2013,
financial statements adopted in the adjourned AGM shall be filed with the
Registrar within thirty days of the date of such adjourned AGM with such fees
or such additional fees as may be prescribed. In the instant case, the accounts
of Sun Ltd. were adopted at the adjourned AGM held on 15th October, 2022
and filing of financial statements with Registrar was done on 12th November,
2022 i.e. within 30 days of the date of adjourned AGM. But Sun Ltd. has not
filed its un-adopted financial statements within 30 days of the date of the
annual general meeting held on 31st August 2022.
Hence, Sun Ltd. has not complied with the statutory requirement regarding
filing of un-adopted accounts with the Registrar, but has certainly complied
with the provisions by filing of adopted accounts within the due date with the
Registrar.
7. As per section 130 of the Companies Act, 2013, a company shall not re-open
its books of account and not recast its financial statements, unless an
application in this regard is made by the Central Government, the Income-tax
authorities, the Securities and Exchange Board, any other statutory body or
authority or any person concerned and an order is made by a court of
competent jurisdiction or the Tribunal to the effect that—
(i) The relevant earlier accounts were prepared in a fraudulent manner; or

a
(ii) The affairs of the company were mismanaged during the relevant
period, casting a doubt on the reliability of financial statements:
However, no order shall be made in respect of re-opening of books of

account relating to a period earlier than eight financial years immediately
preceding the current financial year.
In the given instance, an application was filed for re-opening and re-casting
of the financial statements of Chetan Ltd. for the financial year 2011-2012
which is beyond 8 financial years immediately preceding the current financial
year.
Though application filed by the Income Tax Authorities to NCLT is valid, its
recommendation for reopening and recasting of financial statements for the
period earlier than eight financial years immediately preceding the current
financial year i.e. 2022-2023, is invalid.

CHAPTER
10
AUDIT AND AUDITORS
LEARNING OUTCOMES
 Comprehend the procedure for appointment of auditors,
their removal, resignation, eligibility, qualifications,
disqualifications and remuneration.
 Identify the powers and duties of auditors.
 Explain about auditing services and certain services which an
auditor cannot render.


CHAPTER OVERVIEW
This chapter explains the provisions of Chapter X of the Companies Act, 2013
148 dealing with the Audit and Auditors. The provisions contained in chapter X of
the Act are supplemented by the Companies (Audit and Auditors) Rules, 2014.
The relevant aspects (and arrangement of sections) to be covered in this book
chapter are presented below;
First Auditor
Appointment* of Auditors (Section 139)
Subsequent Auditor
Removal, resignation of auditor and giving of special notice (Section 140)
Eligibility, Qualification & Disqualification (Section 141)
Remuneration of Auditor (Section 142)

Audit & Auditors
Powers & Duties of auditors and auditing standards (Section 143)
Segment of Audit Reports
Prohibited Services (Section 144)
Signing of Audit Reports (Section 145)
Auditor to attend AGM (Section 146)
Punishment Provisions (Section 147)
Cost Auditor (Section 148)
* Appointment includes re-appointment

AUDIT AND AUDITORS 10.3
1. INTRODUCTION
Chapter X Consists of sections 139 to 148 as well as the Companies
(Audit and Auditors) Rules, 2014.
Large business corporations are managed by the directors who represent the members
who are the real owners of the company through board. In the absence of any check,
the directors may mismanage the finances of the organisation. Thus, members appoint
auditor/auditors to look into the true and fair view of the financial affairs of the
company. Large business corporations are managed by the directors, who act as
fiduciaries (a person who prudently takes care of finances or other assets for another
person) to the members (the real owners). This is the reason that the board of directors
is responsible for the preparation of the financial statement and laying it out at the
general meeting of members.
Despite assuming a fiduciary role, in the absence of proper checks and balances, the
directors may indulge in mismanagement of the finances and other assets of the
corporation. Hence, financial statements prepared and laid down by the board need
to be audited by an independent auditor.
Thus, members appoint auditors to have an independent professional opinion on the
financial affairs of the company, who examine such financial statements to frame
opinion to report; whether they reflect a true and fair view of financial position and
performance or not.
2. APPOINTMENT1 OF AUDITORS [SECTION 139]

APPOINTMENT OF AUDITOR [SUB-SECTION 1 READ WITH RULE 3
AND 4 OF THE COMPANIES (AUDIT AND AUDITORS) RULES, 2014]
Who can be appointed as Auditor and when?
Every company shall appoint an individual or a firm (“firm” shall

include a limited liability partnership incorporated under the Limited
Liability Partnership Act, 2008) as an auditor of the company at the first
Annual General Meeting (AGM).
1
Appointment includes re-appointment

Tenor of appointment as Auditor conclusion

conclusion of its 6th
The auditor shall hold office from the of 1stAGM AGM
conclusion of 1stAGM (or the AGM in which
he is appointed) till the conclusion of its 6 th
AGM (and thereafter till the conclusion of till
every sixth AGM).
Example 1: Rashail Tech Labs Private Limited was incorporated during the financial
year 2019-20. First AGM of the company held on 30.09.2020. The company
appointed M/s. Rams & Associates, Chartered Accountant firm for the period of 5
Years as a subsequent statutory auditor.
Manner and procedure of selection and appointment of auditors [Rule 3 of
the Companies (Audit and Auditors) Rules, 2014]
The manner and procedure of selection of auditors by the members of the company
at AGM has been prescribed under the Rule 3 of the Companies (Audit and Auditors)
Rules, 2014; tabled and stated below.
Categories of Competent Responsibility of the competent authority

Companies authority
A company Audit The competent authority shall take into
which is Committee* consideration the qualifications and
required to experience of the individual or the firm
constitute an proposed to be considered for appointment as
Audit auditor and such qualifications and experience
Committee are commensurate with the size and requirements
under section of the company.
177 It shall have regard to any order or pending
A Company Board of proceeding relating to professional matters of
which is not Directors conduct against the proposed auditor before the
required to Institute of Chartered Accountants of India (ICAI)
constitute an or any competent authority or any Court.
Audit It may call for such other information from the
Committee proposed auditor as it may deem fit.
under section
177

* Where competent authority is audit committee, the committee shall

recommend the name of an individual or a firm as auditor to the Board for
consideration; the Board shall consider and recommend an individual or a firm as
auditor to the members in the AGM for appointment.
If the Board agrees with the recommendation of the Audit Committee - It shall
further recommend the appointment of an individual or a firm as auditor to the
members in the annual general meeting.
If the Board disagrees with the recommendation of the Audit Committee - It shall
refer back the recommendation to the committee for reconsideration citing reasons
for such disagreement.
Example 2: Audit Committee recommended KPM & Associates, Chartered
Accountants firm for appointment as statutory auditor to the board of Surya Solar
Limited. However, board of the company disagreed with the recommendation of
the audit committee. In such condition, board shall refer back the recommendation
to the committee for reconsideration citing reasons for such disagreement.
If the Audit Committee, after considering the reasons given by the Board, decides
not to reconsider its original recommendation, the Board shall record reasons for
its disagreement with the committee and send its own recommendation for
consideration of the members in the AGM; and if the Board agrees with the
recommendations of the Audit Committee, it shall place the matter for
consideration by members in the AGM.
Note:
Companies that require to constitute an audit committee
Section 1772 of the Act, read with Companies (Meetings of Board and its Powers)
Rules, 2014 provides Audit Committee shall be constituted by Board of directors in
case of;
i. Every listed public companies and
ii. Those public companies which having:
a. Paid up capital of ten crore rupees or more; or
b. Turnover of one hundred crore rupees or more; or
2
Not a part of syllabus at Intermediate level, but necessary to build understanding of the students.

c. Aggregate, outstanding loans or borrowings or debentures or deposits

exceeding fifty crore rupees or more.
The paid up share capital or turnover or outstanding loans, or borrowings or
debentures or deposits, as the case may be, as existing on the date of last audited
financial statements shall be taken into account for the purposes of this rule.
It is also worth noting that where a company ceases to fulfil any of three conditions
laid down above for three consecutive years, it shall not be required to comply with
the provisions pertaining to audit committee until such time as it meets any of such
conditions.
Consent of auditors (proposed/selected auditor) for appointment, certificate

from such auditor and notice to Registrar [Sub-section 1 read with rule 4 of
the Companies (Audit and Auditors) Rules, 2014]
Written consent
Before the appointment is made, the written consent of the auditor to such
appointment shall be obtained.
Certificate
A certificate shall be also obtained from the auditor stating that;
a. The individual or the firm (as the case may be to be, appointed as auditor) is
eligible for appointment and is not disqualified for appointment under the
Act, the Chartered Accountants Act, 1949 and the rules or regulations made
thereunder;
b. The proposed appointment is as per the term provided under the Act;
c. The proposed appointment is within the limits laid down by or under the
authority of the Act;
d. The list of proceedings against the auditor or audit firm or any partner of the
audit firm pending with respect to professional matters of conduct, as
disclosed in the certificate, is true and correct.
Note
The certificate shall also indicate whether the auditor satisfies the criteria provided
in section 141 [i.e. eligibility, qualification and disqualification of Auditor which will
be discussed later] of this Act.

Notice to Registrar
The company shall inform the concerned auditor of his or its appointment, and also
file a notice in the Form ADT-1 of such appointment with the Registrar within 15 days
of the meeting in which the auditor is appointed.

Intimation to NFRA under the National Financial Reporting Authority Rules,
2018 (here-in-after referred as to NFRA Rules)
As per Rule 3 (2) of NFRA Rules, every existing body corporate other than a
company governed by NFRA rules, shall inform the National Financial Reporting
Authority (NFRA) within 30 days of the commencement of the NFRA rules, in Form
NFRA-1, the particulars of the auditor as on the date of commencement of the
NFRA rules.
According to Rule 3(3) of NFRA Rules, every body corporate, other than a company
as defined in clause (20) of section 2 of the Act, formed in India and governed under
NFRA Rules shall, within 15 days of appointment of an auditor under sub-section
(1) of section 139, inform the NFRA in Form NFRA-1, the particulars of the auditor
appointed by such body corporate, provided that a body corporate governed under
clause (e) of sub-rule (1) of NFRA Rules shall provide details of appointment of its
auditor in Form NFRA-1.
TERM OF AUDITOR [SUB-SECTION 2 READ WITH RULE 5 OF

COMPANIES (AUDIT & AUDITORS) RULES, 2014]
Maximum terms and length thereof in case of individual and firm
Section 139(2) provides that:
i. Listed companies and
ii. All companies (excluding one person companies & small companies), which
are
a. Unlisted public companies and having paid up share capital of rupees
ten crore or more;
b. Private limited companies and having paid up share capital of rupees
fifty crore or more;
c. Having public borrowings from financial institutions, banks or public

deposits of rupees fifty crore or more.

Shall not appoint or re-appoint
i. An individual as auditor for more than one term of five consecutive years;
ii. An audit firm as auditor for more than two terms of five consecutive years
Students are advice to take note;
Noting contained in sub-section 2, shall prejudice the right of the;
a. Company to remove an auditor or
b. Auditor to resign from such office of the company.
Example 3: XYZ Ltd. which is a listed company appoints individual Mr. Raghav as
an auditor in its AGM dated 29th September, 2022. Mr. Raghav will hold office of
Auditor from the conclusion of this meeting upto conclusion of sixth AGM i.e. AGM
to be held in the year 2027. Now as per sub-section (2), Mr. Raghav shall not be re-
appointed as Auditor in XYZ Ltd at 6th AGM (i.e. 2027).
Example 4: XYZ Ltd. which is a listed company appoints M/s Raghav & Associates
as an audit firm in its AGM dated 29th September, 2016. M/s Raghav & Associates
will hold office from the conclusion of this meeting upto conclusion of sixth AGM
to be held in the year 2021. Now as per sub-section (2), M/s Raghav & Associates
can be appointed or re-appointed as auditor for one more term of five years i.e.
upto year 2026. It shall not be re-appointed as Audit firm in XYZ Ltd at 11th AGM
(i.e. 2026).
Cooling Period (to ensure re-instatement of independence)
An individual auditor who has completed his term (i.e. one term of five
consecutive years) shall not be eligible for re-appointment as auditor in the same
company for five years from the completion of his term;
An audit firm which has completed its terms (i.e. two terms of five consecutive
years) shall not be eligible for re-appointment as auditor in the same company
for five years from the completion of second term.

Summary
Auditor Appointed/Reappointed Not eligible for re-appointment

for
Individual One term of five consecutive For five years from the completion
years (1st AGM to 6th AGM) of his term (till 11 th AGM)
Firm Two terms of five consecutive For five years from the completion
years (1st AGM to 11th AGM) of its second term (till 16 th AGM)
Example 5: XYZ Ltd. which is a listed company appoints individual Mr. Raghav as
an auditor in its AGM dated 29th September, 2016. Mr. Raghav will hold office of
Auditor from the conclusion of this meeting upto conclusion of sixth AGM i.e. AGM
to be held in the year 2021. Now as per sub-section (2), Mr. Raghav shall not be re-
appointed as Auditor in XYZ Ltd. for further term of five years i.e. he cannot be
appointed as Auditor in XYZ Ltd. upto year 2026.
Example 6: XYZ Ltd. which is a listed company appoints M/s Raghav & Associates
as an audit firm in its AGM dated 29th September, 2016. M/s Raghav & Associates
will hold office from the conclusion of this meeting upto conclusion of sixth AGM
to be held in the year 2021. Now as per sub-section (2), M/s Raghav & Associates
can be appointed or re-appointed as auditor for one more term of five years i.e.
upto year 2026. It shall not be re-appointed as Audit firm in XYZ Ltd. for further
term of five years after year 2026 to year 2031.
Note: On the date of appointment, an audit firm shall not have any partner or
partners who are/were also the partner/s to the other audit firm, whose tenure has
been expired in a company immediately preceding the financial year.
It means, the audit firm with common partner/s shall not be appointed as
succeeding auditor of same company after two terms of five consecutive years.
Example 7: M/s Krishna & Associates is an audit firm having 2 partners namely Mr.
Krishna and Mr. Shyam. Mr. Shyam is also a partner of another audit firm named
M/s Kukreja & Associates. M/s Krishna & Associates was appointed as the auditors
in the company Golden Smith Ltd. for two consecutive periods of 5 years i.e. from
year 2016 to year 2026. Now, if Golden Smith Ltd. wants to appoint M/s Kukreja &
Associates as its audit firm, it cannot do so because Mr. Shyam is the common
partner between both the Audit firms. This prohibition is only for 5 years i.e. upto

year 2031. After cooling period of 5 years, Golden Smith Ltd. may appoint M/s
Kukreja & Associates or M/s. Krishna & Associates as its auditors.
Transitional period
Every company, existing on or before the commencement of this Act which is required
to comply with the provisions as mentioned in above mentioned points (a) to (d) (i.e.
provisions of this sub-section), shall comply with those provisions within a period
which shall not be later than the date of the first AGM of the company held, within the
period specified under sub-section (1) of section 96, after three years from the date of
commencement of this Act.
ROTATION OF AUDITOR [SUB-SECTION 3 AND 4 READ WITH RULE 6

OF COMPANIES (AUDIT & AUDITORS) RULES, 2014]
Power to Members [Sub-section 3]
Members of a company may resolve to provide that;
a. In the audit firm appointed by them, the auditing partner and his team shall
be rotated at such intervals as may be resolved by members; or
b. The audit shall be conducted by more than one auditor.
Manner of rotation of auditors by the companies on expiry of their term [Sub-

section 4 read with Rule 6 (2) and (3)]
The Central Government may, by rules, prescribe the manner in which the
companies shall rotate their auditors. The manner of rotation of auditors by the
companies on expiry of their term as provided under Rule 6 of the Companies (Audit
and Auditors) Rules, 2014, as stated below;
a. Where a company is required to constitute an Audit Committee
i. Such Audit Committee shall recommend to the Board, the name of an
individual auditor or of an audit firm who may replace the
incumbent auditor on expiry of the term of such incumbent
ii. The Board shall consider the recommendation of such committee,
and make its recommendation for appointment of the next auditor by
the members in annual general meeting.

b. In other cases, the Board shall itself consider the matter of rotation of
auditors and make its recommendation for appointment of the next auditor
by the members in annual general meeting.
Note
Most of provisions of Rule 6 are either complementary, or in confirmation/ conformance
to Rule 3.
In case where Audit committee is not required to be constituted under section 177, but
constituted by the company voluntarily, then such audit committee shall recommend to
the Board, the name of an individual auditor or of an audit firm who may replace
the incumbent auditor on expiry of the term of such incumbent; but in such cases
board may or may not consider the recommendation of such committee.
Manner of rotation in case of auditors appointed prior to commencement of

this Act and continuing after such commencement [Rule 6(3)]
For the purpose of the rotation of auditors in case of an auditor (whether an
individual or audit firm), the period for which the individual or the firm has held office
as auditor prior to the commencement of the Act shall be taken into account for
calculating the period of five consecutive years or ten consecutive years, as the case
may be.
Example 8: Dass & Dass Co, a Chartered Accountants firm was appointed as auditor
of Modern Furniture since 28th September 2012. The firm can continue to assume the
office of auditor till AGM conducted for financial year 2021-22.
Illustration explaining rotation in case of individual auditor
Number of consecutive years for Maximum number of Aggregate period

which an individual auditor has consecutive years for which the auditor
been functioning as auditor in which he may be would complete in
the same company [till the first appointed in the same the same company
AGM held after the company (including in view of column I
commencement of provisions of transitional period) and II
section 139(2)]
I II III
5 years (or more than 5 years) 3 years 8 years or more

4 years 3 years 7 years

1 year 4 years 5 years
Here,
a. Individual auditor shall include other individuals or firms whose name or

trademark or brand is used by such individual, if any.
b. Consecutive years shall mean all the preceding financial years for which the
individual auditor has been the auditor until there has been a break by five
years or more.
Illustration explaining rotation in case of audit firm
Number of consecutive years for Maximum number of Aggregate period

which an audit firm has been consecutive years for which which the firm would
functioning as auditor in the the firm may be appointed complete in the
same company [till the first AGM in the same company same company in
held after the commencement (including transitional view of column I and
of provisions of section 139(2)] period) II
I II III
10 years (or more than 10 3 years 13 years or more
years)
1 year 9 years 10 years

Here,
a. Audit Firm shall include other firms whose name or trade mark or brand is
used by the firm or any of its partners.
b. Consecutive years shall mean all the preceding financial years for which the firm
has been the auditor until there has been a break by five years or more.
Manner of rotation in case of same network and common partner [Rule 6(3)]
The incoming auditor or audit firm shall not be eligible if such auditor or audit firm
is associated with the outgoing auditor or audit firm under the same network of
audit firms. The term same network includes the firms operating or functioning,
hitherto or in future, under the same brand name, trade name or common control.
For the purpose of rotation of auditors, a break (cooling period) in the term for a
continuous period of five years shall be considered as fulfilling the requirement of
rotation. But if a partner (common partner), who is in charge of an audit firm and
also certifies the financial statements of the company, retires from the said firm and
joins another firm of chartered accountants, such other firm shall also be ineligible
to be appointed for a period of five years i.e. cooling period.
Manner of rotation in case of joint auditors [Rule 6(4)]
Where a company has appointed two or more individuals or firms or a combination
thereof as joint auditors, the company may follow the rotation of auditors in such
a manner that both or all of the joint auditors, as the case may be, do not complete
their term in the same year.
Illustration 1
Modern Furniture Limited (MFL), despite not mandated by Section 177 of the Act, read
with Companies (Meetings of Board and its Powers) Rules, 2014 to constitute audit
committee; on their own on voluntary basis constitute such audit committee.
Such committee recommend to the Board, the name of an individual auditor or of an
audit firm who may replace the incumbent auditor on expiry of the term of such
incumbent; but board didn’t consider the recommendation of such committee. Examine
the legal validity of act of audit committee and board of MFL.
Answer – Rule 6(1) read in conjunction with rule 6(2) of the Companies (Audit &
Auditors) Rules, 2014 provides that in case where Audit committee not required to be
constituted under section 177, but constituted by company, then also such audit

committee shall recommend to the Board, the name of an individual auditor or of an

audit firm who may replace the incumbent auditor on expiry of the term of such
incumbent; but in such cases board may or may not consider the recommendation of
said audit committee.
Hence, act of audit committee and board at MFL is legally valid.
FIRST AUDITORS [SUB-SECTION 6]

The first auditor of a company, other than a Government Company, shall be;
a. Appointed by the Board of directors
b. Within 30 days of the date of registration of the company and
c. The auditor so appointed shall hold office until the conclusion of the first
AGM.
Illustration 2
Unicorn Steel Private Limited is incorporated as on 02.06.2022, board of directors of
the company held board meeting as on 15.06.2022 to appoint Jain Ajmera &
Associates as a first auditor of the company for a term of 5 years. As per section
139(6) of the Companies Act, 2013, the board shall appoint first director within 30
days from the date of registration of the company. Evaluate the legal validity;
Options
a. Valid
b. Invalid
c. Valid after approval of shareholder in General Meeting
d. Valid only after approval of Central Government
Answer - b
Reason – As per section 139(6), the first auditor so appoint by Board of Director
shall hold office until the conclusion of the first AGM.
If the Board fails to exercise its powers i.e. appointment of first auditor, it shall
a. Inform the members of the company and
b. The company may appoint the first auditor within 90 days at an extra ordinary
general meeting (EGM) and
c. Such auditor shall hold office till the conclusion of the first AGM.

Illustration 3
Managing Director of PQR Limited wanted to appoint Mr. Ganpati, a practicing
Chartered Accountant, as first auditor of company. He himself without consulting the
board, appointed Shri Ganpati as auditor. Evaluate legal validity
Answer - Section 139(6) of the Companies Act, 2013 provides that “the first auditor
or auditors of a company shall be appointed by the Board of directors within 30
days from the date of registration of the company”. Hence in the instant case, the
appointment of Mr. Ganpati by the Managing Director himself is invalid due to
violation of Section 139(6) of the Companies Act, 2013.
AUDITOR OF GOVERNMENT COMPANY [SUB-SECTION 5 & 7]
First Auditor [Sub-section 7]
The first auditor is to be appointed by Comptroller and Auditor General of India
(CAG) within 60 days from the date of registration of the company, who shall
hold office till the conclusion of the first annual general meeting; in case of:
i. A Government company or
ii. Any other company owned or controlled, directly or indirectly, by the Central
Government, or by any State Government or Governments, or partly by the
Central Government and partly by one or more State Governments.
Note
If Comptroller and Auditor General of India fails in this respect, the Board is to
appoint the auditor within next 30 days
Further if the Board also fails to do so, it has to inform the members of the company
who have to make the appointment within 60 days at an extraordinary general
meeting (EGM).
Mind it, even appointed by Board or by embers at EGM, the first auditor shall hold
office till the conclusion of the first annual general meeting
Subsequent Auditor [Sub-section 5]

In respect of financial year, the Comptroller and Auditor General of India shall
appoint a duly qualified auditor within 180 days from the commencement of the
financial year, who shall hold office till conclusion of annual general meeting;
in case of:
a. A Government company or
b. Any other company owned or controlled, directly or indirectly, by the Central


FILLING UP CASUAL VACANCY [SUB-SECTION 8]
Other than company whose accounts are subject to audit by an auditor
appointed by the CAG
The Board may fill any casual vacancy in the office of an auditor within 30 days.
Any auditor appointed in a casual vacancy shall hold office until the conclusion of
the next annual general meeting.
Note
Where such vacancy is caused by the resignation of an auditor, such appointment
shall also be approved by the company at a general meeting convened within
three months of the recommendation of the Board
Company whose accounts are subject to audit by an auditor appointed by the

CAG
Casual vacancy of an auditor shall be filled by the Comptroller and Auditor
General of India within 30 days.
Further, in case the CAG does not fill the vacancy within the said period, the
Board of Directors shall fill the vacancy within next 30 days.
Example 9: Prakash Carriers Limited appointed Mr. Raman as its auditor in the
Annual General Meeting held on 30 th September, 2022. Initially, he accepted the
appointment. But he resigned from his office on 31 st October, 2022 for personal
reasons. The Board of directors seeks advice for filling up the vacancy by
appointment of Mr. Albert as auditor.
In the present case, as the auditor has resigned, the casual vacancy so created can
be filled up by the Board appointing Mr. Albert. However, the appointment of Mr.
Albert must be approved by the company by passing of an ordinary resolution at a
general meeting of the company which must be convened by the Board within 3
months of the recommendation of the Board. Mr. Albert will be entitled to hold
office till the conclusion of the next Annual General Meeting.

RE-APPOINTMENT OF RETIRING AUDITOR [SUB-SECTION 9 AND 10]

As per sub-section 9, a retiring auditor may be re-appointed at an AGM if;
a. He is not disqualified for re-appointment;
b. He has not given a notice in writing to the company of his unwillingness to
be re-appointed; and
c. A special resolution has not been passed at that meeting appointing some
other auditor or providing expressly that he shall not be re-appointed.
Further as per sub-section 10, where at any AGM, no auditor is appointed or re-
appointed, the existing auditor shall continue to be the auditor of the company.
Note
Even in case of continuation of auditor due to deeming provision of sub-section
10, the conditions specified under sub-section 9 shall be checked.
AUDIT COMMITTEE’S RECOMMENDATION [SUB-SECTION 11]

Sub-section 11 prescribes the confirming provision, that where a company is
required to constitute an Audit Committee under section 177, all appointments,
including the filling of a casual vacancy of an auditor under this section shall be
made after taking into account the recommendations of such committee.
3. REMOVAL, RESIGNATION OF AUDITOR AND

GIVING OF SPECIAL NOTICE [SECTION 140]
Section 140 of the Companies Act, 2013 provides for removal, resignation of
auditor and giving of special notice. According to this section:
REMOVAL OF AUDITOR BEFORE HIS TERM [SUB-SECTION 1 READ
WITH RULE 7 OF THE COMPANIES (AUDIT & AUDITORS) RULES,
2014]
Manner and Procedure
The auditor appointed under section 139 may be removed from his office before
the expiry of his term only by—

a. A special resolution of the company3 and

b. After obtaining the previous approval of the Central Government (powers
are delegated to Regional Director)4 by making an application in Form ADT-
2 that shall be accompanied with the prescribed fees as provided for this
purpose under the Companies (Registration Offices and Fees) Rules, 2014.
Note
The application shall be made to the Central Government within 30 days of the
resolution passed by the Board.
The Company shall hold the general meeting within 60 days of receipt of approval of
the Central Government for passing the special resolution.
Example 10: Mr. Suresh, a Chartered Accountant, was appointed by the Board of
Directors of AB Limited as the First Auditor. The company in General Meeting removed
Mr. Suresh without seeking the approval of the Central Government and appointed
Mr. Gupta as an auditor in his place. The first auditor appointed by the Board of
Directors can be removed in accordance with the provision of Section 140(1) of the
Companies Act, 2013. Hence, the removal of the first auditor in this case is invalid. The
company contravened the provision of the Act.
In case of a Specified IFSC public company5 and Specified IFSC private company6,
where, within a period of sixty days from the date of submission of the application
to the Central Government under this sub-section, no decision is communicated by
the Central Government to the company, it would be deemed that the Central
Government has approved the application and the company shall appoint new
auditor at a general meeting convened within three months from the date of expiry of
sixty days period.
3
Basant Ram & Sons v Union of India, (2002) 110 Comp Gas 38 (Del), after approval of the
Central Government, general body approval is necessary to make the removal effective.
4
Vide notification S.O. 4090(E) dated 19th December 2016 (in supersession to notification S.O.
1352(E) dated 21st may 2014)
5
Inserted vide Exemption Notification to specified IFSC Public Companies, GSR 08 (E) dated
04.01.2017
6
Inserted vide Exemption Notification to specified IFSC Private Companies, GSR 09 (E) dated
04.01.2017

Giving opportunity of being heard (Audi Alteram Partem)

Before taking any action for removal of auditor before the expiry of his term, the auditor
concerned shall be given a reasonable opportunity of being heard.
The Latin maxim, ‘Audi Alteram Partem’ is the principle of natural justice where every
person gets a chance of being heard to respond to the charge, evidence or action against
them.
Illustration 4
Special Resolution to remove auditor at general meeting shall be passed within
______________, form the approval from central government.
a. 30 days
b. 1 month
c. 60 days
d. 3 months
Answer - c
Reason – Rule 7(3) of the Companies (Audit & Auditors) Rules, 2014 that states the
company shall hold the general meeting within sixty days of receipt of approval of the
Central Government for passing the special resolution.
Summary of steps for removal of auditor
A board meeting will be

A Special Notice is held (To decide about Application to CG
received for removal and then (To be made in ADT-
Removal of authorising the filing of 2), within 30 days of
auditor application to CG through Board Resolution
Board Resolution)
Auditor shall be After approval from CG,

given a reasonable Special Notice to be sent Approval of CG
opportunity of for AGM (within 60 days received
being heard of receipt of approval)
Passing a Special
Resolution on Auditor will be
removal of the removed
auditor

RESIGNATION BY AUDITOR [SUB-SECTION 2 & 3 READ WITH RULE 8

OF COMPANIES (AUDIT AND AUDITORS) RULES, 2014]
File a statement [Sub-section 2 read with rule 8]
If the Auditor has resigned from the company, he shall file a statement in the form
ADT-3 with the company and the Registrar within a period of 30 days from the date
of such resignation.
The auditor shall indicate the reasons and other facts as may be relevant with
regard to his resignation, in the statement.
Statement to CAG in case of Government Company [Sub-section 2]
The auditor shall file such statement with the Comptroller and Auditor-General of India
(CAG) along with the company and the Registrar indicating the reasons and other facts
as may be relevant with regard to his resignation, in case if he is auditor of:
i. A Government company or
ii. Any other company owned or controlled, directly or indirectly, by the Central
Summary
Particulars In case of Government In other Cases

Co.
Form of statement ADT-3 ADT-3
Time Period for Within 30 days of Within 30 days of
filling resignation resignation
Statement filled with Company, Registrar & CAG Company and Registrar
Penalty for contravention [Sub-section 3]

If the auditor does not comply with aforesaid provision of filling statement then;
a. He or it shall be liable to a penalty of ` 50,000 or an amount equal to the
remuneration of the auditor, whichever is less,
and
b. In case of continuing failure, with a further penalty of ` 500 for each day
after the first during which such failure continues, subject to a maximum of
` 2 lakh.

APPOINTING AUDITOR OTHER THAN THE RETIRING AUDITOR [SUB-

SECTION 4]
Special notice for resolution
If the retiring auditor has not completed a consecutive tenure of 5 years (or 10
years in case of firm, as the case may be), special notice shall be required for a
resolution at an annual general meeting appointing as auditor a person other than
a retiring auditor, or providing expressly that a retiring auditor shall not be re-
appointed.
Copy of special notice to retiring auditor
On receipt of notice of such a resolution, the company shall forthwith send a copy
thereof to the retiring auditor.
Representation of auditor
Where notice is given of such a resolution and the retiring auditor makes with
respect thereto representation in writing to the company (not exceeding a
reasonable length) and requests its notification to members of the company, the
company shall, unless the representation is received by it too late for it to do so,
a. In any notice of the resolution given to members of the company, state the
fact of the representation having been made; and
b. Send a copy of the representation to every member of the company to
whom notice of the meeting is sent, whether before or after the receipt of the
representation by the company.
If a copy of the representation is not sent to members
If a copy of representation is not sent to member as aforesaid,
a. Either because it was received too late or of the company’s default, the
auditor may (without prejudice to his right to be heard orally) require that the
representation shall be read out at the meeting.
b. A copy of such representation shall be filed with the Registrar.
Second proviso to section 140(4) read with Rule 78 of the National Company Law
Tribunal Rules, 2016, provides, if the Tribunal i.e. NCLT is satisfied;
a. On an application in Form No. NCLT. 1 may be filed by the director on behalf
of the company or the aggrieved auditor to the Tribunal
b. That the rights conferred by the provisions of section 140 are being abused
by the auditor,

c. Then, the copy of the representation need not be sent and the
representation need not be read out at the meeting.
AUDITOR ACTS IN A FRAUDULENT MANNER OR ABETTED OR

COLLUDED IN ANY FRAUD [SUB-SECTION 5]
Tribunal may order the company to change its auditor/s.
Without prejudice to any action under the provisions of this Act or any other law
for the time being in force, the Tribunal (i.e. NCLT) either on
a. Its own (Suo-moto); or
b. An application (in Form No. NCLT 9) made to it by the Central Government;
or
c. An application (in Form No. NCLT 9) made to it by any person concerned,
If it is satisfied that the auditor of a company has, whether directly or indirectly,
acted in a fraudulent manner or abetted or colluded in any fraud by, or in
relation to, the company or its directors or officers, it may, by order, direct the
company to change its auditors.
Rule 78(3) of the National Company Law Tribunal Rules, 2016 provides exactly
similar provision to what is stated as first proviso to Sub-section 5 of Section 140,
if the application is made by the Central Government and the Tribunal is satisfied
that any change of the auditor is required, it shall within fifteen days of receipt
of such application make an order that the auditor shall not function as an
auditor and the Central Government may appoint another auditor in his place.
Ineligibility of auditor to be appointed and criminal liability
An auditor, whether individual or firm, against whom final order has been passed
by the Tribunal under section 140, shall;
a. Not be eligible to be appointed as an auditor of any company for a period
of 5 years from the date of passing of the order and
b. Also be liable for action under section 447 of the Companies Act 2013.
Note
In case of a firm, the liability shall be of the firm and that of every partner or partners
who acted in a fraudulent manner or abetted or colluded in any fraud by, or in
relation to, the company or its director or officers.
The word “auditor” also includes a firm of auditors.

Illustration 5
FLP Ltd, engaged in the business of real estate and energy, defaulted on its
borrowings which amounted to thousands of crore. During the year ended 31st March
2023, a fraud was uncovered in respect of various transactions of the company and
it was observed by the Central Government that the auditors of the company were
involved in such fraud. Please suggest what can be the course of action in this case.
Answer - The Central Government may apply to the Tribunal in respect of such
matter highlighting that the auditors miserably failed to fulfill their duties as
auditors of the company. If the Tribunal is satisfied that the auditors were involved
in the fraud with the company, the Tribunal may direct the company to change its
auditors and those auditors shall not be eligible to be appointed as auditor of any
company for 5 years and also liable for action under section 447 of the Companies
Act 2013.
Summary of Sub-section 5
suo motu
If tribunal is satisfied, within
15 days of receipt of
on application application, it shall order that
NCLT by CG he shall not function as
Auditor and CG may appoint
on application another auditor
by any person
Satisfied that concerned
Auditor has
acted in
fraudulent
manner
The removed auditor shall not be eligible to be

Direct the company to
appointed as auditor of any company for 5 years
change its auditors
and liable for action u/s 447

4. ELIGIBILITY, QUALIFICATIONS AND

DISQUALIFICATIONS OF AUDITORS
[SECTION 141]
Section 141 of the Companies Act, 2013 provides for eligibility, qualifications and
disqualifications of auditors.
QUALIFICATION OF AN AUDITOR [SUB-SECTION 1 AND 2]
Auditor shall be CA in Practice [Sub-section 1]
A person shall be eligible to be appointed as an auditor of a company only if he is

a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of
the Chartered Accountants Act, 1949 who holds a valid certificate of practice under
sub-section (1) of section 6 of that Act.
Note
Since section 139 allows a firm also to be appointed as an auditor, hence proviso
to section 141(1) prescribe clearly that only those firms wherein majority of partners
practicing in India, are qualified for appointment by its firm name.
Who shall sign if firm appointed as Auditor [Sub-section 2]

Where a firm including a Limited Liability Partnership is appointed as an auditor of
a company, only the partners who are Chartered Accountants shall be authorized
to act and sign on behalf of the firm.
DISQUALIFICATIONS OF AUDITORS [SUB-SECTION 3 READ WITH
RULE 10 OF COMPANIES (AUDIT AND AUDITORS) RULE, 2014]
Following persons shall not be qualified for appointment as auditor of a
company
a. A body corporate other than a limited liability partnership registered under
the Limited Liability Partnership Act, 2008;
b. An officer or employee of the company;

c. A person who is a partner, or who is in the employment, of an officer or
employee of the company;

Illustration 6
Mr. Anil, a Chartered accountant, is a partner of a firm and has been appointed
as an auditor of Laxman Ltd. in the Annual General Meeting of the company
held in September 2022 in which he accepted the assignment. Subsequently, in
January 2023, he offered Bharat, another Chartered Accountant, who is the
Manager Finance of Laxman Ltd., to join the firm of Anil as a partner.
Answer
Section 141(3)(c) of the Companies Act, 2013 prescribes that any person who
is a partner or in employment of an officer or employee of the company will
be disqualified to act as an auditor of a company. Sub-section (4) of Section
141 provides that an auditor who becomes subject, after his appointment, to
any of the disqualifications specified in sub-sections (3) of Section 141, shall
be deemed to have vacated his office as an auditor.
In the present case, Anil is auditor of M/s Laxman Limited and any employee
of Laxman Limited cannot become the Partner of the firm where Anil is a
Partner. In case that happens, he/the firm shall be deemed to have vacated
office of the auditor of M/s Laxman Limited.
d. A person who himself or his partner is holding any security of or interest
in the company or its subsidiary, or of its holding or associate company or a
subsidiary of such holding company (i.e. fellow subsidiary) or his relative or
partner
Illustration 7
“Mr. Ashish”, a practicing Chartered Accountant, is holding securities of “XYZ
Ltd.” having face value of ` 900/-. Whether Mr. Ashish is qualified for
appointment as an Auditor of “XYZ Ltd.”?
Answer
As per section 141 (3)(d) (i) an auditor is disqualified to be appointed as an
auditor if he, or his partner is holding any security or interest in the company
or its subsidiary, or of its holding or associate company or a subsidiary of
such holding company. In the present case, Mr. Ashish is holding security of
` 900 in XYZ Ltd, therefore he is not eligible for appointment as an Auditor
of “XYZ Ltd”.

Note – In earlier act i.e. Companies Act 1956 the holding securities of par
value upto the limit of ` 1000 by auditor was not the disqualification criteria.
Under current Act i.e. Companies Act 2013, not a single rupee of holding by
auditor is allowed.
e. A person whose relative (defined u/s 2(77) is holding any security of or

interest in the company or its subsidiary, or of its holding or associate
company or a subsidiary of such holding company (i.e. fellow subsidiary) of
face value exceeding ` 1,00,000.
Illustration 8
“Mr. P” is a practicing Chartered Accountant and “Mr. Q”, the relative of “Mr.
P”, is holding securities of “ABC Ltd.” having face value of
` 90,000/-. Whether “Mr. P” is qualified for being appointed as an auditor of
“ABC Ltd.”?
Answer
As per section 141 (3)(d)(i), an auditor is disqualified to be appointed as an
auditor if he, or his relative or partner holding any security of or interest in
the company or its subsidiary, or of its holding or associate company or a
subsidiary of such holding company. Further as per proviso to this Section,
the relative of the auditor may hold the securities or interest in the company
of face value not exceeding of ` 1,00,000. In the present case, Mr. Q. (relative
of Mr. P, an auditor), is having securities of ` 90,000 face value in ABC Ltd.,
which is as per requirement of proviso to section 141(3)(d)(i). Therefore, Mr.
P will not be disqualified to be appointed as an auditor of ABC Ltd.
Though rule 10(1) says, a relative of an auditor may hold securities in the
company of face value not exceeding rupees one lakh but here rather than a
literal interpretation, reasonable construction is required. And holding of all
the relatives together shall be checked against the threshold.
Further, even if relative of one of the partners of any firm hold securities or
interests exceeding the threshold then, not only such partner even firm shall
not be eligible to appointed as auditor.

The threshold condition specified above shall, wherever relevant, be also

applicable in the case of a company not having share capital or other
securities.
If the relative acquires any security or interest above the prescribed threshold
i.e. ` 1,00,000, the corrective action to maintain the limits as specified above
shall be taken by the auditor within 60 days of such acquisition or interest.
Illustration 9
“BC & Co.” is an audit firm having partners “Mr. B” and “Mr. C” and “Mr. A”,
relative of “Mr. C”, is holding securities of “MWF Ltd.” having face value of
` 1,10,000. Whether “BC & Co.” is qualified for appointment as auditor of “MWF
Ltd.”?
Answer
As per section 141(3)(d)(i) an auditor is disqualified to be appointed as an
auditor if he, or his relative or partner holding any security of or interest in
the company or its subsidiary, or of its holding or associate company or a
subsidiary of such holding company. Further as per proviso to this Section,
the relative of the auditor may hold the securities or interest in the company
of face value not exceeding of ` 1,00,000. In the instant case, BC & Co, will be
disqualified for appointment as an auditor of MWF Ltd as the relative of Mr.
C i.e. partner of BC & Co., is holding the securities in MWF Ltd which is
exceeding the limit mentioned in proviso to section 141(3)(d)(i) .
f. A person who himself, or whose partner or relative is indebted to the
company, or its subsidiary, or its holding or associate company or a subsidiary
of such holding company, in excess of ` 5 Lakh
g. A person who or whose relative or partner has given a guarantee or
provided any security in connection with the indebtedness of any third
person to the company, or its subsidiary, or its holding or associate company
or a subsidiary of such holding company, in excess of one lakh rupees
h. A person or a firm who, whether directly or indirectly, has business
relationship with the company, or its subsidiary, or its holding or associate
company or subsidiary of such holding company or associate company.

The term “business relationship” shall be construed as any transaction

entered into for a commercial purpose, but except–
❑ Commercial transactions which are in the nature of professional
services permitted to be rendered by an auditor or audit firm under the
Act and the Chartered Accountants Act, 1949 and the rules or the
regulations made under those Acts;
❑ Commercial transactions which are in the ordinary course of business
of the company at arm’s length price like sale of products or services
to the auditor as customer by the companies engaged in the business
of telecommunications, airlines, hospitals, hotels and such other similar
businesses.
i. A person whose relative is a director or is in the employment of the company

as a director (as defined u/s 2(34) or key managerial personnel (as defined
u/s 2(51);
j. A person who is in full time employment elsewhere
k. 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 20 companies.
Note
While calculating the ceiling limit of 20, the one person companies, small
companies and private companies having paid-up share capital less than 100
crore rupees shall be excluded.7
The exceptions provided above shall be applicable only to those
Private Companies which has not committed a default in filing its financial
statements under section 137 of the said act or annual return under section 92
of the said act with the registrar8
Before appointment is given to any auditor, the company must obtain a
certificate from him to the effect that the appointment, if made, will not result in
an excess holding of company audit by the auditor concerned over the limit laid
down in section141(3)(g) of the Companies Act, 2013.
7
Vide Notification no. G.S.R. 464(E) dated 5th June 2015
8
Vide notification no. G.S.R. 583(E) dated 13th June, 2017

Illustration 10
“ABC & Co.” is an audit firm having partners “Mr. A”, “Mr. B” and “Mr. C”,
Chartered Accountants. “Mr. A”, “Mr. B” and “Mr. C” are holding appointment
as auditors in 4, 6 and 10 companies respectively.
i. Provide the maximum number of audits remaining in the name of “ABC
& Co.”
ii. Provide the maximum number of audits remaining in the name of

individual partner i.e. Mr. A, Mr. B and Mr. C.
Answer
In the instant case, Mr. A is holding appointment in 4 companies, Mr. B is
having appointment in 6 companies and Mr. C is having appointment in 10
companies. In aggregate all three partners are having 20 audits.
As per section 141(3)(g) of the Companies Act, 2013, a person shall not be
eligible for appointment as an auditor if he is in full time employment
elsewhere or a person or a partner of a firm holding appointment as its
auditor, if such person or partner is at the date of such appointment or
reappointment holding appointment as auditor of more than twenty
companies other than one person companies, dormant companies, small
companies and private companies having paid-up share capital less than
` 100 crore.
As per section 141 (3)(g), this limit of 20 company audits is per person. In the
case of an audit firm having 3 partners, the overall ceiling will be 3 × 20 = 60
companies’ audit. Sometimes, a Chartered Accountant may be a partner in a
number of auditing firms. In such a case, all the firms in which he is partner
or proprietor will be together entitled to 20 company audits only on his
account.
Therefore, ABC & Co. can hold appointment as an auditor of 40 more
companies:
Total Number of audits for which the firm would be eligible = 20*3 = 60
Number of audits already taken by all the partners
In their individual capacity = 4+6+10 = 20

Remaining number of audits available to the firm = 40

With reference to above provisions, an auditor can hold more appointment

as auditor (i.e. ceiling limit as per section 141(3)(g) - already holding
appointments as an auditor). Hence
i. Mr. A can hold: 20 – 4 = 16 more audits.
ii. Mr. B can hold 20 - 6 = 14 more audits and
iii. Mr. C can hold 20-10 = 10 more audits .
Note - It has been assumed that the companies given in the question are not
one person companies, dormant companies, small companies and private
companies having paid-up share capital less than ` 100 crore.
l. a person who has been convicted by a court of an offence involving fraud and
a period of 10 years has not elapsed from the date of such conviction;
m. A person who, directly or indirectly, renders any service referred to in section
144 to the company or its holding company or its subsidiary company.
VACATION OF OFFICE BY AN AUDITOR [SUB-SECTION 4]
If a person appointed as an auditor of a company incurs any of the disqualifications
specified in Section 141(3) after his appointment, he shall vacate his office as
Auditor. Such vacation shall be deemed to be a casual vacancy in the office of the
auditor.
5. REMUNERATION OF AUDITORS [SECTION 142]

Section 142 of the Companies Act, 2013 provides for remuneration of auditors.
WHO WILL FIX THE REMUNERATION?
Subsequent auditors
The remuneration of auditors has to be fixed by the company in general meeting
or in such manner as the general meeting may determine.
First Auditor
While the remuneration of first auditor shall be fixed by the board, which appointed
him.

INCLUSION AND EXCLUSIONS

Components
a. The remuneration so fixed is, in addition to the fee payable to an auditor to,
Includes
b. The expenses, if any, incurred by him in connection with the audit of the
company (i.e. out of pocket expense) and
c. Any facility extended to him.
Exclusion
It is not to include any remuneration paid to him for any other service rendered by
him at the request of the company.
Example 11: SHRD Private Ltd is engaged in the business of software and
consultancy. The company has an annual turnover of ` 2,000 crore but its profit
margins are not very good as compared to the industry standards. For the financial
year ended 31 st March 2019, the company proposed appointment of its statutory
auditors at its Board meeting, however, the remuneration was not finalized. The
statutory auditors completed the engagement formalities including the
engagement letter between the company and the auditors and it was decided that
the engagement letter be signed without fee i.e. with the clause that the fee to be
mutually decided. In this situation, engagement letter with such arrangement is
valid.
6. POWERS AND DUTIES OF AUDITORS AND

AUDITING STANDARDS [SECTION 143]
POWERS OF AUDITORS [SUB-SECTION 1]
Access to books of account and vouchers
Every auditor of a company shall have a right of access at all times to the books of
accounts and vouchers of the company, whether kept at the registered office of the
company or at any other place.

Entitled to have necessary information and explanation

He shall be entitled to require from the officers of the company such information
and explanations as the auditor may consider necessary for the performance of his
duties as auditor.
Access to record of all its subsidiaries
The auditor of a company which is a holding company shall also have the right of
access to the records of all its subsidiaries and associate companies in so far as it
relates to the consolidation of its financial statements with that of its subsidiaries
and associate companies.
DUTIES OF AUDITORS
Matters of inquiry [Sub-section 1]
The auditor shall inquire into the following matters, namely
a. Whether loans and advances made by the company on the basis of security
have been properly secured and whether the terms on which they have been
made are prejudicial to the interests of the company or its members;
b. Whether transactions of the company which are represented merely by book

entries are prejudicial to the interests of the company;
c. Where the company not being an investment company or a banking
company, whether so much of the assets of the company as consist of shares,
debentures and other securities have been sold at a price less than that at
which they were purchased by the company;
d. Whether loans and advances made by the company have been shown as
deposits;
e. Whether personal expenses have been charged to revenue account;
f. Where it is stated in the books and documents of the company that any
shares have been allotted for cash, whether cash has actually been received
in respect of such allotment, and if no cash has actually been so received,
whether the position as stated in the
g. account books and the balance sheet is correct, regular and not misleading.

Report to members [Sub-section 2 and 3]

The auditor shall make a report to the members of the company on the follow ing;
a. On the accounts examined by him; and
b. On every financial statements which are required by or under this Act to be

laid before the company in general meeting; and
Note
The auditor while making the report shall take into account the provisions of the
Act, the accounting and auditing standards and matters which are required to be
included in the audit report under the provisions of this Act or any rules made
thereunder or under any order made under section 143(11).
The auditor shall express his opinion on the accounts and financial statements
examined by him. He shall express an opinion, according to him and to the best of
his information and knowledge, whether the said accounts/financial statements
give a true and fair view of the state of the company’s affairs as at the end of its
financial year and profit or loss and cash flow for the year and such other matters
as may be prescribed.
Further, sub-section 3 requires, the auditors’ report shall also state:

a. Whether he has sought and obtained all the information and explanations
which to the best of his knowledge and belief were necessary for the purpose
of his audit and if not, the details thereof and the effect of such information
on the financial statements;
b. Whether, in his opinion, proper books of account as required by law have
been kept by the company so far as appears from his examination of those
books and proper returns adequate for the purposes of his audit have been
received from branches not visited by him;
c. Whether the report on the accounts of any branch office of the company
audited under sub-section (8) by a person other than the company’s auditor
has been sent to him under the proviso to that sub-section and the manner
in which he has dealt with it in preparing his report;
d. Whether the company’s balance sheet and profit and loss account dealt with
in the report are in agreement with the books of account and returns;

e. Whether, in his opinion, the financial statements comply with the accounting
standards;
f. The observations or comments of the auditors on financial transactions or

matters which have any adverse effect on the functioning of the company;
g. Whether any director is disqualified from being appointed as a director under
sub section (2) of section 164;
h. Any qualification, reservation or adverse remark relating to the maintenance
of accounts and other matters connected therewith;
i. Whether the company has adequate internal financial controls with reference
to financial statements in place and the operating effectiveness of such
controls;
j. Such other matters as may be prescribed.
In context of clause j stated above, Rule 11 of the Companies (Audit &

Auditors) Rules,2014 i.e. Other Matters to be Included in Auditors Report
requires the auditor’s report shall also include their views and comments on
the following matters, namely:
(i) Whether the company has disclosed the impact, if any, of pending
litigations on its financial position in its financial statement;
(ii) Whether the company has made provision, as required under any law
or accounting standards, for material foreseeable losses, if any, on long
term contracts including derivative contracts;
(iii) Whether there has been any delay in transferring amounts, required to
be transferred, to the Investor Education and Protection Fund by the
company.
(iv) Whether the management has represented that, to the best of it’s
knowledge and belief, other than as disclosed in the notes to the
accounts, no funds have been;
1. Advanced or loaned or invested (either from borrowed funds or
share premium or any other sources or kind of funds) by the
company to or in any other person(s) or entity(ies), including
foreign entities (“Intermediaries”), with the understanding,
whether recorded in writing or otherwise, that the Intermediary

shall, whether, directly or indirectly lend or invest in other persons

or entities identified in any manner whatsoever by or on behalf of
the company (“Ultimate Beneficiaries”) or provide any guarantee,
security or the like on behalf of the Ultimate Beneficiaries;
2. Received by the company from any person(s) or entity(ies),
including foreign entities (“Funding Parties”), with the
understanding, whether recorded in writing or otherwise, that the
company shall, whether, directly or indirectly, lend or invest in
other persons or entities identified in any manner whatsoever by
or on behalf of the Funding Party (“Ultimate Beneficiaries”) or
provide any guarantee, security or the like on behalf of the
Ultimate Beneficiaries; and
3. Based on such audit procedures that the auditor has considered

reasonable and appropriate in the circumstances, nothing has
come to their notice that has caused them to believe that the
representations under sub-clause (i) [i.e. pt 1] and (ii) [i.e. pt 2]
contain any material mis-statement.
(v) Whether the dividend declared or paid during the year by the company
is in compliance with section 123 of the Companies Act, 2013.
(vi) Whether the company, in respect of financial years commencing on or
after the 1st April, 2022, has used such accounting software for
maintaining its books of account which has a feature of recording audit
trail (edit log) facility and the same has been operated throughout the
year for all transactions recorded in the software and the audit trail
feature has not been tampered with and the audit trail has been
preserved by the company as per the statutory requirements for record
retention.
Note
As per sub-section 4 to section 143, where any of the matters is answered in the
negative or with a qualification, the auditor’s report shall state the reason for the
same.

Clause (i) of Sub-Section (3) of Section 143 (i.e. Whether the company has adequate
internal financial controls with reference to financial statements in place and the
operating effectiveness of such controls) shall not apply 9 to a private company,
i. which is a one person company or a small company; or
ii. Which has turnover less than rupees fifty crore as per latest audited
financial statement and which has aggregate borrowings from banks or financial
institutions or anybody corporate at any point of time during the financial year less
than rupees 25 crore.
The aforesaid exceptions, modifications and adaptations shall be applicable to a
Private company which has not committed a default in filing of its financial
statements under section 137 or annual return under section 92 of the said Act with
the Registrar.
Illustration 11
MNO Ltd. is a listed company engaged in the business of trading of various products.
The company also plans to start manufacturing of certain products which are
currently traded.
During the course of its audit, the auditors completed all the procedures related to
audit of financial statements. However, the auditor got stuck on one procedure
because of which audit has not got concluded.
Auditors are waiting for certain additional information – Directors report and
Management Discussion and Analysis (MD&A) for their review. However, the
management is not ready with this information and wants the auditors to complete
their work without review of this information. Please advise as per the legal
requirements.
Answer
In the given case, the requirement of the auditors regarding additional information
i.e. Directors report and MD&A without which they have not been able to conclude
the audit doesn’t look valid. The auditor is required to audit the financial statements
and express an opinion on the same. The auditor does not audit these additional
information.
9 Inserted Vide Exemption Notification No. G.S.R. 583(E) Dated 13th June, 2017.

Hence the auditor should conclude the work without delaying because of this
additional information.
Compliance with auditing standards [Sub-section 9 and 10]
Every auditor shall comply with the auditing standards.
The Central Government may prescribe the standards of auditing or any addendum
thereto, as recommended by the ICAI, in consultation with and after examination
of the recommendations made by the National Financial Reporting Authority
(NFRA).
It is further provided that until any auditing standards are notified, any standard or
standards of auditing specified by the ICAI shall be deemed to be the auditing
standards.
Additional matters to be reported in case of specified companies [Sub-section

11]
In respect of such class or description of companies, as may be specified in the

general or special order by the Central Government, may in consultation with the
NFRA direct, the auditor’s report shall also include a statement on such matters as
may be specified therein.
Note
CARO 2020 issued by MCA should be complied by the statutory auditor of every
company, on which it applies.
REPORTING OF FRAUDS BY AUDITORS [SUB-SECTION 12, 13 AND 15

READ WITH RULE 13 OF THE COMPANIES (AUDIT AND AUDITORS)
RULES, 2014]
Fraud involving amount of one crore or more [Sub-section 12 read with Rule
13(2)]
Notwithstanding anything contained in this section, if an auditor of a company, in
the course of the performance of his duties as auditor,
a. Has reason to believe that an offence involving fraud
b. Which involves or is expected to involve individually an amount of rupees
one crore or above

c. Is being or has been committed against the company by officers or

employees of the company,
d. He shall immediately report the matter to the Central Government within
such time and in such manner as may be prescribed.
In this regards Rule 13(2) the auditor shall report the matter to the Central
Government in following manner
a. The auditor shall report the matter to the Board or the Audit Committee,
as the case may be, immediately but not later than 2 days of his knowledge
of the fraud, seeking their reply or observations within 45 days;
b. On receipt of such reply or observations, the auditor shall forward his report
and the reply or observations of the Board or the Audit Committee along
with his comments (on such reply or observations of the Board or the Audit
Committee) to the Central Government within 15 days from the date of
receipt of such reply or observations;
c. In case the auditor fails to get any reply or observations from the Board
or the Audit Committee within the stipulated period of 45 days, he shall
forward his report to the Central Government along with a note containing
the details of his report that was earlier forwarded to the Board or the Audit
Committee for which he has not received any reply or observations;
d. The report shall be sent to the Secretary, Ministry of Corporate Affairs
(MCA) in a sealed cover by Registered Post with Acknowledgement Due or
by Speed Post followed by an e-mail in confirmation of the same;
e. The report shall be on the letter-head of the auditor containing postal

address, e-mail address and contact telephone number or mobile number
and be signed by the auditor with his seal and shall indicate his Membership
Number; and
f. The report shall be in the form of a statement as specified in Form ADT-4.
Fraud involving amount less than one crore
Report to Audit Committee or Board [First Proviso to Sub-section 12 read with
Rule 13(3)]
In case of a fraud involving lesser than an amount of rupees one crore, the auditor
shall report the matter to the audit committee (if constituted under section 177)

or to the Board (in other cases) immediately but not later than two days of his
knowledge of the fraud and he shall report the matter specifying the following;
a. Nature of Fraud with description;
b. Approximate amount involved; and
c. Parties involved.
Disclosure in Board’s Report [Second Proviso to Sub-section 12 read with Rule
13(4)]
The audit committee or the Board shall disclose the following details about such
frauds (reported to them, but not to the Central Government i.e. when amount
involved is less than ` 1 crore), in the Board's report;
a. Nature of fraud with description;
b. Approximate amount involved;
c. Parties involved, if remedial action not taken; and
d. Remedial actions taken.
Exception of bonafide faith [Sub-section13]
No duty to which an auditor of a company may be subject to shall be regarded as
having been contravened by reason of his reporting the matter referred to in sub-
section (12) if it is done in good faith.
Penalty for non-compliance of section 143(12) [Sub-section 15]
If any auditor, cost accountant, or company secretary in practice does not comply
with the provisions of sub-section (12), he shall
a. Be liable to a penalty of five lakh rupees in case of a listed company; and
b. Be liable to a penalty of one lakh rupees in case of any other company.
Summary of quantum of penalty
Liable In case of Quantum

auditor, cost accountant, or listed company five lakh rupees
company secretary in practice
any other company one lakh rupees
does not comply with the
provisions of section 143(12)

Illustration 12
NSH Ltd is engaged in the business of retail and is listed on National stock exchange.
The company recently acquired a business undertaking to expand its business. During
the year, certain transactions amounting to thousands of rupees were carried out by
the employees/ directors of the company which the management found suspicious
and appointed a forensic consultant to carry out their review. Pursuant to this review
process, certain suspicious transactions were identified by the management and the
management reported these transactions to the appropriate authorities. During the
course of statutory audit, such transactions were also made known to the statutory
auditors. How should the auditor deal with such matter?
Answer
As per Section 143(12) of the Companies Act, 2013, the auditor is required to report
to the Audit Committee or to the Board of Directors and, where applicable, to the
Central Government an offence of fraud in the company by its officers or employees
only if he is the first person to identify/note such instance in the course of
performance of his duties as an auditor. In this case, the suspicious transactions
have been identified by the management first and information about the same has
been given by the management to the auditor. Accordingly, the auditor should
report about this matter to the Audit Committee/ Board of Directors but the auditor
would not be required to report the same to Central Government.
Note - The auditors need to report about this matter appropriately in their CARO
report.
AUDIT OF GOVERNMENT COMPANIES [SUB-SECTION 5, 6 & 7]

Powers vested with CAG [Sub-section 5]
Sub-section 5 provides, in the case of a Government company or any other
company owned or controlled, directly or indirectly, by the Central Government, or
by any State Government or Governments, or partly by the Central Government
and partly by one or more State Governments;
a. CAG shall appoint the auditor under section 139(5) or 139(7) and
b. Direct such auditor the manner in which the accounts of the Government
company are required to be audited and
c. Thereupon the auditor so appointed shall submit a copy of the audit
report to the CAG.

The audit report among other things, shall include the following
a. The directions, if any, issued by the CAG;
b. The action taken thereon; and
c. Its impact on the accounts and financial statement of the company.
Comment by CAG and Supplementary Audit [Sub-section 6]
Sub-section 6 provides that, the CAG shall within 60 days from the date of receipt
of the audit report have a right to;
a. Conduct a supplementary audit of the financial statement of the company by
such person or persons as he may authorize in this behalf; and for the
purposes of such audit, require information or additional information to be
furnished to any person or persons, so authorized, on such matters, by such
person or persons, and in such form, as the CAG may direct; and
b. Comment upon or supplement such audit report.
Note
Any comments given by the CAG upon, or supplement to, the audit report shall be
sent by the company to every person entitled to copies of audited financial
statements under section 136(1) and also be placed before the AGM of the
company at the same time and in the same manner as the audit report.
Test Audit [Sub-section 7]

For Government Company or Company controlled by State Government or Central
Government, the CAG may, if he considers necessary, by an order, cause test audit
to be conducted of the accounts of such company, without prejudice to the
provisions related to Audit and Auditors. The provisions of section 19A of the
Comptroller and Auditor-General’s (Duties, Powers and Conditions of Service) Act,
1971, shall apply to the report of such test audit.
AUDIT OF ACCOUNTS OF BRANCH OFFICE OF COMPANY [SUB-
SECTION 8 READ WITH RULE 12 OF THE COMPANIES (AUDIT &
AUDITORS) RULES, 2014]
Branch office in India
Where a company has a branch office, the accounts of that office shall be audited
either by:

a. The company’s auditor appointed under section 139, or

b. By any other person qualified for appointment as an auditor of the company
under section 139.
Branch office outside India
If the branch office is situated in a country outside India, the accounts of the branch
office shall be audited either by:
a. The company’s auditor or
b. By an accountant or
c. By any other person duly qualified to act as an auditor of the accounts of the
branch office in accordance with the laws of that country.
Duties and powers of the company’s auditor with reference to the audit of the
branch and the branch auditor [Rule 12 of the Companies (Audit & Auditors)
Rules, 2014]
The duties and powers of the company’s auditor with reference to the audit of the
branch and the branch auditor, if any, shall be as contained in sub-sections (1) to
(4) of section 143.
The branch auditor shall submit his report to the company’s auditor.
The provisions regarding reporting of fraud by the auditor shall also extend to such
branch auditor to the extent it relates to the concerned branch.
APPLICATION OF PROVISIONS OF SECTION 143 TO COST
ACCOUNTANTS AND COMPANY SECRETARY [SUB-SECTION 14]
The provisions of this section shall mutatis mutandis apply to:
a. The cost accountant conducting cost audit under section 148; or

b. The company secretary in practice conducting secretarial
audit under section 204.
Sub-rule 5 to rule 13 of the Companies (Audit & Auditors) Rules, 2014 provide
exactly confirmatory provision.

7. AUDITOR NOT TO RENDER CERTAIN

SERVICES [SECTION 144]
An auditor appointed under this Act shall provide to the company only such other
services as are approved by the Board of Directors or the audit committee, as
the case may be.
But such services shall not include any of the following services (whether such
services are rendered directly or indirectly to the company or its holding
company or subsidiary company), namely
a. Accounting and book keeping services;
b. Internal audit;
c. Design and implementation of any financial information system;
d. Actuarial services;
e. Investment advisory services;
f. Investment banking services;
g. Rendering of outsourced financial services;
h. Management services; and

i. Any other kind of services as may be prescribed
Snapshot of prohibited services
Accounting and book Investment advisory Investment banking

keeping services services services
Internal audit Actuarial services Management services
Design and
Rendering of Any other kind of
implementation of any
outsourced financial services as may be
financial information
services prescribed
system

1. However no other kind of services has been prescribed till date under clause
i specified above.
2. Here it is worth noting that as per proviso to section 148(3), no person (or
firm including LLP) appointed under section 139 as an auditor of the company shall
be appointed for conducting the audit of cost records or vice-versa.
3. The term “directly or indirectly” shall include rendering of services by the

auditor
❑ In case of auditor being an individual, either himself or through his relative

or any other person connected or associated with such individual or through
any other entity, whatsoever, in which such individual has significant influence
or control, or whose name or trademark or brand is used by such individual;
❑ In case of auditor being a firm, either itself or through any of its partners or
through its parent, subsidiary or associate entity or through any other entity,
whatsoever, in which the firm or any partner of the firm has significant
influence or control, or whose name or trademark or brand is used by the firm
or any of its partners.
Example 12: MNP Ltd is a medium-sized company engaged in the business of

pharmaceuticals. For the year ended 31 st March 2018, the company is looking for
appointment of GST (Goods and Services Tax) auditor. The company wants to
appoint somebody for this work who is familiar with the business of the company
i.e. who would have worked with the company in the past so that lesser efforts are
required to get the GST audit completed. The company has options of statutory
auditors that can be appointed for this work for betterment of
company.

Summary of what shall be included in directly and indirectly
Self
Relatives
In case of Other person connected or associated with such

auditor being individual
INDIVIDUAL
Entity in which such individual has significant influence
or control
Directly or Indirectly includes
Entity whose name or trademark or brand is used by

such individual
Firm
Partners of firm
Parent of firm
Subsidiary of firm
In case of
auditor being Associate entity of firm
FIRM
Entity in which the firm has significant influence
Entity in which any partner of the firm has significant

influence or control
Entity whose name or trademark or brand is used by the

firm or any of its partners

8. AUDITORS TO SIGN AUDIT REPORTS, ETC.

[SECTION 145]
Section 145 of the Companies Act, 2013 provides for auditors to sign audit reports,
etc.
The person appointed as an auditor of the company shall sign the auditor’s
report or sign or certify any other document of the company in accordance with
the provisions of sub-section (2) of section 141 (i.e. in case of firm including LLP is
appointed as an auditor of a company, only the partner who are Chartered
Accountants shall be authorized to act and sign on behalf of the firm).
The qualifications, observations or comments on financial transactions or

matters, which have any adverse effect on the functioning of the company
mentioned in the auditor’s report shall be read before the company in general
meeting and shall be open to inspection by any member of the company.
Illustration 13
Whether entire audit report need to read before the company in general meeting?
Answer
No, as per section 145 of the Companies Act 2013, qualifications, observations
or comments on financial transactions or matters, which have any adverse effect
on the functioning of the company mentioned in the auditor’s report shall be read
before the company in general meeting and shall be open to inspection by any
member of the company.
9. AUDITORS TO ATTEND GENERAL MEETING

[SECTION 146]
Section 146 of the Companies Act, 2013 provides for auditors to attend general
meeting.
All notices of, and other communications relating to, any general meeting shall
be forwarded to the auditor of the company.

The auditor shall, unless otherwise exempted by the company, attend either by
himself or through his authorized representative, who shall also be qualified to
be an auditor, any general meeting.
The auditor shall have right to be heard at such meeting on any part of the
business which concerns him as the auditor.
Summary of the section 146
Attend meeting either Right to be heard

Serving notices of
by himself or through on business
any General Meeting
his authorized concerning him as
to auditor
representative auditor
Example 13
Modern Furniture Limited (MFL) convened its general meeting on 21st March 2023,
the notice of same was not served at auditor. Since company is obligated under
section 146 to forward a notice of general meeting to auditor as well, hence non-
serving of notice to auditor by MFL is in contravention to section 146 and liable for
penalty under section 147.
Illustration 14
Regarding the general meeting for which notice is served on auditor;
i. Whether auditor is mandatorily required to be attend the said general meeting?
ii. If yes, whether he is required to attend the meeting personally?
Answer
Answer to first part is yes, while no in case of second, because as per section 146
of the Companies Act 2013, the auditor shall, unless otherwise exempted by the
company, attend either by himself or through his authorized representative, who
shall also be qualified to be an auditor, any general meeting.


[SECTION 147]
Section 147 of the Companies Act, 2013 provides for punishment for contravention.
CONTRAVENTION BY COMPANY [SUB-SECTION 1]
Penalty on company
If any of the provisions of sections 139 to 146 (both inclusive) is contravened, the
company shall be punishable with fine which shall not be less than twenty five
thousand rupees but which may extend to five lakh rupees.
Penalty on officer/s who is/are in default
If any of the provisions of sections 139 to 146 (both inclusive) is contravened, every
officer of the company who is in default shall be punishable with fine which shall
not be less than ten thousand rupees but which may extend to one lakh rupees.
Liable Minimum Maximum

(in `) (in `)
Company 25,000 5,00,000
Every officer of the company who is in default 10,000 1,00,000
CONTRAVENTION BY AUDITOR [SUB-SECTION 2 AND 3]

Penalty on auditor [Sub-section 2]
If an auditor of a company contravenes any of the provisions of section 139, section

144 or section 145, the auditor shall be punishable with fine which shall not be less
than twenty five thousand rupees but which may extend to five lakh rupees or four
times the remuneration of the auditor, whichever is less.

Liable Liable for Minimum Maximum

(in `) (in `)
Auditor Contravenes any of the 25,000 Lower of

provisions of section 139, i. 5,00,000
144 or 145, Company
or
ii. 4 times the
remuneration
Penalty for knowing/willful contravention [Proviso to Sub-section 2]

If an auditor has contravened any of the provisions of section 139, section 144 or
section 145, knowingly or willfully with the intention to deceive the company or its
shareholders or creditors or tax authorities, he shall be punishable with the
imprisonment for a term which may extend to 1 year and with the fine which shall
not be less than fifty thousand rupees but which may extend to twenty-five lakh
rupees or eight times the remuneration of the auditor, whichever is less.
Liable Liable for Minimum Maximum
Auditor Knowing or willful Fine of ` Fine, Lower of

contravenes any of the 25,000 ` 5,00,000
provisions of section
Or
139, 144 or 145,
8 times the
Company
remuneration
and
Imprisonment for a term which may

extend to 1 year
Refund of remuneration and payment of damages [Sub-section 3]
Where an auditor has been convicted under sub-section 2, he shall be liable to;
a. Refund the remuneration received by him to the company; and

b. Pay for damages to the company, statutory bodies or authorities or to

members or creditors of the company for loss arising out of incorrect or
misleading statements of particulars made in his audit report.
Note:
For operation of sub-section 3, the sub-section 4 empowers the Central
Government, to specify any statutory body or authority or an officer for ensuring
prompt payment of damages to the company or the persons, by notification.
Such body, authority or officer shall after payment of damages to such company or
persons file a report with the Central Government in respect of making such
damages in such manner as may be specified in the said notification.
CONTRAVENTION BY AUDIT FIRM [SUB-SECTION 5]

Where, in case of audit of a company being conducted by an audit firm,
It is proved that the partner or partners of the audit firm has or have acted in a
fraudulent manner or abetted or colluded in any fraud by, or in relation to or by,
the company or its directors or officers, the liability,
Whether civil or criminal as provided in the Companies Act, 2013, or in any other
law for the time being in force,
For such act shall be of the partner or partners concerned of the audit firm and of
the firm jointly and severally.
Note
1. In case of criminal liability of an audit firm, in respect of liability other than
fine, the concerned partner or partners, who acted in a fraudulent manner or
abetted or, as the case may be, colluded in any fraud shall only be liable.
2. Since act constitute to fraud, hence shall also be liable under section 447.
Provisions of section 447, explained and decoded under book chapter 3 i.e.
‘Prospectus and allotment of securities’ of this module. Students may refer
the same.

11. CENTRAL GOVERNMENT TO SPECIFY AUDIT

OF ITEMS OF COST IN RESPECT OF CERTAIN
COST RECORDS [SUB-SECTION 1 READ WITH RULE 3 AND 5 OF THE
COMPANIES (COST RECORDS AND AUDIT) RULES, 2014]
Who shall prepare cost records? [Rule 3]
Notwithstanding anything contained in the provisions related to audit and auditor
(Chapter X), the Central Government may, by order, in respect of such class of
companies engaged in the production of such goods or providing such services as
may be prescribed, direct that particulars relating to the utilisation of material or
labour or to other items of cost as may be prescribed shall also be included in the
books of account kept under section 128 by that class of companies.
The Central Government shall, before issuing such order in respect of any class of
companies regulated under a special Act, consult the regulatory body constituted
or established under such special Act.
For the purposes of sub-section (1) of section 148 of the Act, rule 3 of the Companies
(Cost Records and Audit) Rules, 2014 provides, the class of companies (including foreign
companies defined in clause (42) of section 2 of the Act) engaged in the production of
the goods or providing services, specified in the Table A (6 Regulated Sectors) and/or
Table B (33 Non-Regulated Sector), having an overall turnover from all its products
and services of rupees thirty five crore or more during the immediately preceding
financial year, shall include cost records for such products or services in their books of
account
Note
Nothing contained in Rule 3 shall apply to a company which is classified as a micro

enterprise or a small enterprise including as per the turnover criteria under sub-section
(9) of section 7 of the Micro, Small and Medium Enterprises Development Act, 2006.

Applicability for maintenance of Cost Records
Domestic or Foreign Company
Engaged in production of goods or providing services listed

in table A (Regulated) or B (Non-Regulated) of Rule 3
Overall turnover from all of its products and services ≥

` 35 crore (immediately preceding financial year)
Example 14
Case Turnover (Figures in Crore) Applicability of
Table A Table B Table A+B Other Total Cost Records

Products Products Products Products
1 10 10 20 10 30 No
2 10 10 20 20 40 Yes
3 0 10 10 30 40 Yes
4 10 0 10 30 40 Yes
5 20 20 40 0 40 Yes
6 0* 0* 0 40 40 No
* Not-engaged in the production of the goods or providing services, specified in

the Table A (6 Regulated Sectors) and/or Table B (33 Non-Regulated Sector)
Form and manner of Cost Records [Rule 5]

Every company covered by rule 3 explained above under these rules including all
units and branches thereof, shall, in respect of each of its financial year maintain
cost records in form CRA-1.
The cost records shall be maintained on regular basis in such manner as to
facilitate calculation of per unit cost of production or cost of operations, cost
of sales and margin for each of its products and activities for every financial year
on monthly or quarterly or half-yearly or annual basis.

The cost records shall be maintained in such manner so as to enable the company
to exercise, as far as possible, control over the various operations and costs to
achieve optimum economies in utilisation of resources and these records shall
also provide necessary data which is required to be furnished under these rules.
COST AUDIT [SUB-SECTION 2 TO 7 READ WITH RULE 4 OF THE
COMPANIES (COST RECORDS AND AUDIT) RULES, 2014]
If the Central Government is of the opinion, that it is necessary to do so, it may, by
order, direct that the audit of cost records of class of companies, which are covered
aforesaid (under sub-section 1 i.e. required to prepare cost records) and which have
a net worth of such amount as may be prescribed or a turnover of such amount as
may be prescribed, shall be conducted in the manner specified in the order.
As per sub-section 4, an audit conducted under this section (cost audit u/s 148)
shall be in addition to the audit conducted under section 143.
The cost statements, including other statements to be annexed to the cost audit
report, shall be approved by the Board of Directors before they are signed on behalf
of the Board by any of the director authorised by the Board, for submission to the
cost auditor to report thereon.
Sub-rule 1 to rule 4 provides every company specified in the item (A) of rule 3
shall be required to get its cost records audited in accordance with these rules if
the overall annual turnover of the company from all its products and services during
the immediately preceding financial year is rupees fifty crore or more and the
aggregate turnover of the individual product or products or service or services for
which cost records are required to be maintained under rule 3 is rupees twenty
five crore or more.
Whereas sub rule 2 provides every company specified in item (B) of rule 3 shall
get its cost records audited in accordance with these rules if the overall annual
turnover of the company from all its products and services during the immediately
preceding financial year is rupees one hundred crore or more and the aggregate
turnover of the individual product or products or service or services for which cost
records are required to be maintained under rule 3 is rupees thirty five crore or
more.

Further sub-rule 3 to rule 4 provides exception from cost audits. The requirement
for cost audit shall not apply to a company which is covered in rule 3, and
a. Whose revenue from exports, in foreign exchange, exceeds seventy five percent
of its total revenue; or
b. Which is operating from a special economic zone.
c. Which is engaged in generation of electricity for captive consumption through
Captive Generating PIant. For this purpose, the term “Captive Generating Plant”
shall have the same meaning as assigned in rule 3 of the Electricity Rules, 2005.
Example 15
Case Turnover (Figures in Crore) Applicability of
Table A Table B Table A+B Other Total Cost Cost Audit

Products Products Products Products Records
1 10 10 20 10 30 No No
2 10 10 20 20 40 Yes No
3 20 20 40 0 40 Yes No
4 10 20 30 10 40 Yes No
5 10 20 30 20 50 Yes Yes, but only

for table A
6 0 20 20 20 40 Yes No
7 20 10 30 80 110 Yes Only Table A

Product
8 20 20 40 70 110 Yes Both Tables A

& B Products
9 10 10 20 80 100 Yes No
10 15 15 30 10 40 Yes No
11 20 20 40 8 48 Yes No

Summary of Rule 4 i.e. Applicability of Cost Audit
Companies that are covered under rule 3 and engaged in any of

6 Regulatory Sectors (Table A) 33 Non-Regulatory Sectors (Table B)
Overall annual
Overall annual
turnover from all its
turnover from all
Engaged in generation of electricity for captive consumption.
Engaged in generation of electricity for captive consumption.

products and
Revenue from exports, in foreign exchange, exceeds 75%
Revenue from exports, in foreign exchange, exceeds 75%

its products and
services during the
services during
immediately
the immediately Operating from a special economic zone
Operating from a special economic zone

preceding financial
preceding financial
year is rupees one
year is rupees fifty
hundred crore or
crore or more
more
Aggregate
turnover of the Aggregate turnover
individual of the individual
product or product or products
products or or service or
service or services services for which
for which cost cost records are
records are required to be
required to be maintained under
maintained under rule 3 is rupees
rule 3 is rupees thirty five crore or
twenty five crore more
or more
Cost Audit is Rule 4 i.e. Cost Audit shall not apply; Cost Audit is
required only Rule 3 i.e. Cost Records will apply required
COST AUDITOR [SUB-SECTION 3 AND 5]

Who can be appointed as cost auditor? [Sub-Section 3]
Only a Cost Accountant, as defined under section 2(28) of the Companies Act, 2013,
can be appointed as a cost auditor.

Clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act,
1959 defines “Cost Accountant”. It means a Cost Accountant who holds a valid
certificate of practice under sub-section (1) of section 6 of the Cost and Works
Accountants Act, 1959 and is in whole-time practice. Cost Accountant includes a
Firm of Cost Accountants and a LLP of cost accountants.
First Proviso to sub-section 3 provides that person appointed under section 139 as
an auditor of the company (i.e. company auditor) shall not be appointed for
conducting the audit of cost records.
Illustration 15
Can a professional LLP which have CAs and CMAs as its partners, appointed as Cost
Auditor u/s 148 as well as Statutory Independent Auditor u/s 139
Answer
No, because as per proviso to section 148(3), no person (or firm including LLP)
appointed under section 139 as an auditor of the company shall be appointed for
conducting the audit of cost records or vice-versa.
Qualifications, disqualifications, rights, duties and obligations of cost Auditor
[Sub-section 5]
The qualifications, disqualifications, rights, duties and obligations applicable to
auditors (i.e. applicable to company auditor) shall, so far as may be applicable,
apply to a cost auditor appointed under section 148 and it shall be the duty of the
company to give all assistance and facilities to the cost auditor appointed under
this section for auditing the cost records of the company.
Note:
The provisions of sub-section (12) of section 143 of the Act and the relevant rules
made thereunder shall apply mutatis mutandis to a cost auditor during performance
of his functions under section 148 of the Act and rule notified thereunder.
Who shall appoint cost auditor? [Sub-section 3 read with Rule 14 of the
Companies (Audit and Auditors) Rules, 2014]
Rule 14 of the Companies (Audit and Auditors) Rules, 2014 provides that in the case
of companies which are required to constitute an audit committee
a. The Board shall appoint an individual, who is a cost accountant, or a firm of
cost accountants in practice, as cost auditor on the recommendations of the

Audit committee, which shall also recommend remuneration for such cost
auditor;
b. The remuneration recommended by the Audit Committee under (A) shall be
considered and approved by the Board of Directors and ratified subsequently
by the shareholders.
Whereas in the case of other companies which are not required to constitute an
audit committee, the Board shall appoint an individual who is a cost accountant or
a firm of cost accountants in practice as cost auditor and the remuneration of such
cost auditor shall be ratified by shareholders subsequently.
Manner and Procedure – Appointment, Removal and Resignation [Rule 6 of

Companies (Cost Records and Audit) Rules, 2014]
Time Limit for appointment
Cost Auditor shall within one hundred and eighty days of the commencement of
every financial year, appoint a cost auditor.
Written Consent and Certificate
Before such appointment is made, the written consent of the cost auditor to such
appointment, and a certificate following shall be obtained from him or it.
a. The individual or the firm, as the case may be, is eligible for appointment and
is not disqualified for appointment under the Act, the Cost and Works
Accountants Act, 1959 and the rules or regulations made thereunder;
b. The individual or the firm, as the case may be, satisfies the criteria provided
in section 141 of the Act, so far as may be applicable;
c. The proposed appointment is within the limits laid down by or under the
authority of the Act; and
d. The list of proceedings against the cost auditor or audit firm or any partner
of the audit firm pending with respect to professional matters of conduct, as
disclosed in the certificate, is true and correct.
Notice of appointment
Every company shall inform the cost auditor concerned of his or its appointment
as such and file a notice of such appointment with the Central Government within
a period of thirty days of the Board meeting in which such appointment is made or

within a period of one hundred and eighty days of the commencement of the
financial year, whichever is earlier, through electronic mode, in form CRA-2, along
with the fee as specified in Companies (Registration Offices and Fees) Rules, 2014.
Tenure of appointment as cost auditor
Every cost auditor appointed as such shall continue in such capacity till the expiry
of one hundred and eighty days from the closure of the financial year or till he
submits the cost audit report, for the financial year for which he has been
appointed.
Removal of cost Auditor

The cost auditor appointed under these rules may be removed from his office
before the expiry of his term, through a board resolution after giving a reasonable
opportunity of being heard to the Cost Auditor and recording the reasons for such
removal in writing.
Note:
Form CRA-2 to be filed with the Central Government for intimating appointment of
another cost auditor shall enclose the relevant Board Resolution to the effect
Nothing shall prejudice the right of the cost auditor to resign from such office of
the company.
Filling of casual vacancy in the office of a cost auditor

Any casual vacancy in the office of a cost auditor, whether due to resignation, death
or removal, shall be filled by the Board of Directors within thirty days of occurrence
of such vacancy and the company shall inform the Central Government in form
CRA-2 within thirty days of such appointment of cost auditor
Cost auditor to comply with cost auditing standards [Second Proviso to Sub-
section 3]
The auditor conducting the cost audit shall comply with the cost auditing
standards.
Here, the expression “cost auditing standards” mean such standards as are issued
by the Institute of Cost Accountants of India (erstwhile ICWAI), constituted under
the Cost and Works Accountants Act, 1959, with the approval of the Central
Government.

COST AUDIT REPORT

Form and timing to submit cost audit report
The report on the audit of cost records shall be submitted by the cost accountant
to the Board of Directors of the company.
Every cost auditor, who conducts an audit of the cost records of a company, shall
submit the cost audit report along with his or its reservations or qualifications or
observations or suggestions, if any, in form CRA-3.
Every cost auditor shall forward his duly signed report within a period of one
hundred and eighty days from the closure of the financial year to which the report
relates and the Board of Directors shall consider and examine such report,
particularly any reservation or qualification contained therein.
Note
The Companies which have got extension of time of holding Annual General
Meeting under section 96 (1) of the Companies Act, 2013, may file form CRA-4
within resultant extended period of filing financial statements under section 137 of
Filing of cost audit report with Central Government [Sub-section 6 and 7 read
with rule 4 of the Companies (Filing of Documents and forms in Extensible
Business Reporting Language) Rules, 2015]
A company shall
a. Within 30 days from the date of receipt of a copy of the cost audit report
b. Furnish the Central Government with such report
c. Along with full information and explanation on every reservation or
qualification contained therein.
Rule 4 of the Companies (Filing of Documents and forms in Extensible Business
Reporting Language) Rules, 2015, provides a company which is required to furnish
cost audit report and other documents to the Central Government under sub-
section 6 of the section 148 of the Act and rules made thereunder, shall file such
report and other documents using the XBRL taxonomy given in Annexure III for the
financial year commencing on or after 1 April 2014 in e-form CRA-4 specified under
the Companies (Cost Records and Audit) Rules, 2014.

If, after considering the cost audit report and the information and explanation
furnished by the company, the Central Government is of the opinion that any
further information or explanation is necessary, it may call for such further
information and explanation and the company shall furnish the same within such
time as may be specified by that Government.
Summary of different form pertaining to cost records and cost audits
Form Purpose
CRA-1 The manner in which cost records to be maintained
CRA-2 For intimation of appointment of cost auditor by company to the

Central Government
CRA-3 Cost Audit Report
CRA-4 Filling of the cost audit report with the Central Government
CONTRAVENTION AND PUNISHMENT THEREOF [SUB-SECTION 8]

If any default is made in complying with the provisions of section 148;
a. The company and every officer of the company who is in default shall be
punishable in the manner as provided in section 147(1);
b. The cost auditor of the company who is in default shall be punishable in the
manner as provided in sub-sections (2) to (4) of section 147.
Note: The provision of the section 147 explained in details under heading 10, earlier
in this chapter.
12. NFRA [NATIONAL FINANCIAL REPORTING

AUTHORITY] AND AUDITOR
MONITORING AND ENFORCING COMPLIANCE WITH AUDITING
STANDARDS
Rule 8 of The National Financial Reporting Authority Rules, 2018 empowers
NFRA for the purpose of monitoring and enforcing compliance with auditing
standards under the Act by a company or a body corporate governed under
rule 3.

NFRA may;
a. Review working papers (including audit plan and other audit documents)
and communications related to the audit;
b. Evaluate the sufficiency of the quality control system of the auditor and the
manner of documentation of the system by the auditor; and
c. Perform such other testing of the audit, supervisory, and quality control
procedures of the auditor as may be considered necessary or appropriate.
Rule 8 further provides that:
NFRA may require:
1. Require an auditor to report on its governance practices and internal
processes designed to promote audit quality, protect its reputation and reduce
risks including risk of failure of the auditor and may take such action on the report
as may be necessary.
2. Seek additional information or may require the personal presence of the
auditor for seeking additional information or explanation in connection with the
conduct of an audit.
3. Send a separate report containing proprietary or confidential
information to the Central Government for its information.
4. Where the NFRA finds or has reason to believe that any law or professional
or other standard has or may have been violated by an auditor, it may decide
on the further course of investigation or enforcement action through its
concerned Division.
NFRA shall;
1. Perform its monitoring and enforcement activities through its officers or
experts with sufficient experience in audit of the relevant industry.
2. Publish its findings relating to non-compliances on its website and in such
other manner as it considers fit, unless it has reasons not to do so in the public
interest and it records the reasons in writing.
NFRA shall not
Publish proprietary or confidential information, unless it has reasons to do so in
the public interest and it records the reasons in writing.

OVERSEEING THE QUALITY OF SERVICES AND SUGGESTING

MEASURES FOR IMPROVEMENT
Further Rule 9 of The National Financial Reporting Authority Rules, 2018
empowers NFRA for overseeing the quality of services and suggesting measures
for improvement
a. On the basis of its review, the NFRA may direct an auditor to take measures
for improvement of audit quality including changes in their audit processes,
quality control, and audit reports and specify a detailed plan with time-limits.
b. It shall be the duty of the auditor to make the required improvements and
send a report to the NFRA explaining how it has complied with the directions
made by the NFRA.
c. The NFRA shall monitor the improvements made by the auditor and take such
action as it deems fit depending on the progress made by the auditor.
d. The NFRA may refer cases with regard to overseeing the quality of service of
auditors of companies or bodies corporate referred to in rule 3 to the Quality
Review Board constituted under the Chartered Accountants Act, 1949 or call
for any report or information in respect of such auditors or companies or
bodies corporate from such Board as it may deem appropriate.
e. The NFRA may take the assistance of experts for its oversight and monitoring
activities.
FILLING OF RETURN WITH NFRA
Rule 5 requires every auditor of classes of companies and bodies corporate
governed by the NFRA, shall file a return with the Authority i.e. NFRA on or
before 30th November every year in Form NFRA-2.
SUMMARY
◼ First Auditor shall be appointed by Board of directors within thirty days
from the date of registration of the company, who hold office till first
annual general meeting. Thereafter every company shall, at the first annual
general meeting, appoint an individual or a firm as an auditor who shall
hold office from the conclusion of that meeting till the conclusion of its sixth
annual general meeting and thereafter till the conclusion of every sixth
meeting and so on.

◼ Whereas, in case of Government Company or those controlled by

Government (central or state or any combination thereof) auditor shall be
appointed by CAG (Comptroller and Auditor-General of India).
◼ The auditor appointed under section 139 may be removed from his office
before the expiry of his term only by a special resolution of the company,
after obtaining the previous approval of the Central Government in that
behalf in the prescribed manner
◼ Only a Chartered Accountants in practice can be appointed as auditor ,
where firm is appointed then only a Chartered Accountants in practice shall
be authorised by the firm to act and sign on behalf of the firm. Section 141
(3) list out certain disqualifications that bar an individual or firm to appointed
as auditor.
◼ The remuneration of the auditor of a company shall be fixed in its general
meeting or in such manner as may be determined therein. Board may fix
remuneration of the first auditor appointed by it.
◼ Every auditor shall comply with the auditing standards. Rights and duties
of auditor are prescribed in section 143. The person appointed as an auditor
of the company shall sign the auditor’s report.
◼ All notices of any general meeting shall be forwarded to the auditor of
the company, and the auditor shall, unless otherwise exempted by the
company, attend either by himself or through his authorised representative.
Auditor shall have right to be heard at such meeting on any part of the
business which concerns him as the auditor.
◼ An auditor appointed under this Act shall provide the company only such
other services as are approved by the Board of Directors or the audit
committee, as the case may be, but certain services are specifically
prohibited to render either directly or indirectly. These are; (a) accounting
and book keeping services; (b) internal audit; (c) design and implementation
of any financial information system; (d) actuarial services; (e) investment
advisory services; (f) investment banking services; (g) rendering of
outsourced financial services; and (h) management services.
◼ Penalties for contravention of the applicable provisions by company,
auditor, and audit firm is provided under section 147. In case, it is proved
that the partner or partners of the audit firm has or have acted in a fraudulent
manner or abetted or colluded in any fraud by, or in relation to or by, the
company or its directors or officers; then in addition to section 147, such

offence is punishable under section 447; even liable for civil or criminal
liability under any other law for the time being in force.
◼ Central Government may, by order, in respect of such class of companies
engaged in the production of such goods or providing such services as may
be prescribed, direct that particulars relating to the utilisation of material
or labour or to such other items of cost as may be prescribed shall also be
included in the books of account kept by such class of companies. Further if
the Central Government is of the opinion, in relation to any such company,
that it is necessary to do so, it may, by order, direct that the audit of cost
records of such company shall be conducted in the manner specified therein.
TEST YOUR KNOWLEDGE

1. Birthday Card Limited, a listed company can appoint or re-appoint, Mishra &
Associates (a firm of Chartered Accountants), as their statutory auditors for:
(a) One year only
(b) One term of 3 consecutive years only
(c) One term of 4 consecutive years only
(d) Two terms of 5 consecutive years
2. Every company shall, at the first annual general meeting, appoint an individual
or a firm as an auditor who shall hold office from the conclusion of that meeting
till the conclusion of its:
(a) Second annual general meeting
(b) Fourth annual general meeting
(c) Sixth annual general meeting
(d) Eight annual general meeting
3. For appointing an auditor other than the retiring auditor,
(a) Special notice is required.
(b) Ordinary notice is required.
(c) Neither ordinary nor special notice is required
(d) Approval of Central Government is required.

1. State the procedure for the following, explaining the relevant provisions of the
Companies Act, 2013;
(i) Appointment of First Auditor, when the Board of directors did not appoint
the First Auditor within one month from the date of registration of the
company.
(ii) Removal of Statutory Auditor (appointed in last Annual General Meeting)
before the expiry of his term.
2. One-fourth of the subscribed capital of AMC Limited was held by the
Government of Rajasthan. Mr. Neeraj, a Chartered Accountant, was appoint ed
as an auditor of the Company at the Annual General Meeting held on 30 April,
2018 by an ordinary resolution. Mr. Sanjay, a shareholder of the Company,
objects to the manner of appointment of Mr. Neeraj on the ground of violation
of the Companies Act, 2013. Decide whether the objection of Mr. Sanjay is
tenable? Also examine the consequences of the above appointment under the
said Act.
3. EF Limited appointed an individual firm, Naresh & Company, Chartered

Accountants, as Auditors of the company at the Annual General Meeting held
on 30 September 2022. Mrs. Kamala, wife of Mr. Naresh, invested in the equity
shares face value of ` 1 lakh of EF Limited on 15 October 2022. But Naresh &
Company continues to function as statutory auditors of the company. Advice.
4. Explain how the auditor will be appointed in the following cases:
(i) A Government company within the meaning of section 394 of the

(ii) A public company whose shareholders include XYZ Bank (a nationalized
bank) holding 18% of the subscribed capital of the company.
5. Examine the following situations in the light of the Companies Act, 2013
“Mr. Abhi”, a practicing Chartered Accountant, is holding securities of Abhiman
Ltd. having face value of ` 1000/-. Whether Mr. Abhi is qualified for
appointment as an Auditor of Abhiman Ltd.?

6. Examine whether the following persons are eligible for being appointed as
auditor under the provisions of the Companies Act, 2013:
(i) "Mr. Prakash" is a practicing Chartered Accountant and "Mr. Aakash",

who is a relative of "Mr. Prakash" is holding securities of "ABC Ltd."
having face value of ` 70,000/- (market value ` 1, 10,000/-). Directors
of ABC Ltd. want to appoint Mr. Prakash as an auditor of the company.
(ii) Mr. Ramesh is a practicing Chartered Accountant indebted to MNP Ltd.
for rupees 6 lakh. Directors of MNP Ltd. want to appoint Mr. Ramesh as
an auditor of the company.
(iii) Mrs. KVJ spouse of Mr. Kumar, a Chartered Accountant, is the store keeper
of PRC Ltd. Directors of PRC Ltd. want to appoint Mr. Kumar as an auditor
of the company
7. The Board of Directors of A Limited requested its Statutory Auditor to accept
the assignment of designing and implementation of suitable financial
information system to strengthen the internal control mechanism of the
Company. How will you approach to this proposal, as a Statutory Auditor of A
Ltd., taking into account the consequences, if any, of accepting this proposal?
ANSWERS
1. (d) Two terms of 5 consecutive years
2. (c) Sixth annual general meeting
3. (a) Special notice is required.

1. (i) Section 139(6) of the Companies Act, 2013 lays down that the first auditor
of a company shall be appointed by the Board of Directors within 30 days
of the registration of the company.
Section 139 (6) continues to provide further that if the Board of Directors
fails to appoint such auditor, it shall inform the members of the company,
who shall within ninety days at an extraordinary general meeting appoint

such auditor and such auditor shall hold office till the conclusion of the
first annual general meeting.
From the above provisions of law if the Board of Directors fails to appoint
the first auditors within the stipulated 30 days, it shall take the following
steps:
a. Inform the members of the Company;
b. Immediately take steps to convene an extra ordinary general
meeting not later than 90 days;
c. Members shall at that extra ordinary meeting appoint the first
auditors of the company;
d. The first auditors so appointed shall hold office upto the conclusion
of the first AGM of the company.
(ii) Section 140 of the Companies Act, 2013 prescribes certain procedure for
removal of auditors. Under section 140 (1) the auditor appointed under
section 139 may be removed from his office before the expiry of his term
only by a special resolution of the company, after obtaining the previous
approval of the Central Government in that behalf in the prescribed
manner. From this sub section it is clear that the approval of the Central
Government shall be taken first and thereafter the special resolution of the
company should be passed.
Provided that before taking any action under this sub-section, the auditor
concerned shall be given a reasonable opportunity of being heard.
Therefore, in terms of section 140 (1) of the Companies Act, 2013 read with
Rule 7 of the Companies (Audit & Auditors) Rules, 2014, following steps
should be taken for the removal of an auditor before the completion of his
term:
The application to the Central Government for removal of auditor shall be
made in Form ADT-2 and accompanied with fees as provided for this
purpose under the Companies (Registration Offices and Fees) Rules, 2014.
The application shall be made to the Central Government within thirty days
of the resolution passed by the Board.

The company shall hold the general meeting within sixty days of receipt of
approval of the Central Government for passing the special resolution.
2. As per the section 2(45) of the Companies Act, 2013, the holding of 25%
shares of AMC Ltd. by the Government of Rajasthan does not make it a
government company. Hence, it will be treated as a non-government
company.
Under section 139 of the Companies Act, 2013, the appointment of an auditor
by a company vests generally with the members of the company except in
the case of the first auditors and in the filling up of the casual vacancy not
caused by the resignation of the auditor, in which case, the power to appoint
the auditor vests with the Board of Directors. The appointment by the
members is by way of an ordinary resolution only and no exceptions have
been made in the Act whereby a special resolution is required for the
appointment of the auditors.
Therefore, the contention of Mr. Sanjay is not tenable. The appointment is
valid under the Companies Act, 2013.
3. According to section 141(3)(d)(i) of the Companies Act, 2013, a person who,
or his relative or partner holds any security of the company or its subsidiary
or of its holding or associate company a subsidiary of such holding company,
which carries voting rights, such person cannot be appointed as auditor of
the company. Provided that the relative of such person may hold security or
interest in the company of face value not exceeding 1 lakh rupees as
prescribed under the Companies (Audit and Auditors) Rules, 2014.
In the case Mr. Naresh, Chartered Accountants, did not hold any such security.
But Mrs. Kamala, his wife held equity shares of EF Limited of face value ` 1
lakh, which is within the specified limit.
Further Section 141(4) provides that if an auditor becomes subject, after his
appointment, to any of the disqualifications specified in sub-section 3 of section
141, he shall be deemed to have vacated his office of auditor. Hence, Naresh &
Company can continue to function as auditors of the Company even after 15
October 2022 i.e. after the investment made by his wife in the equity shares of
EF Limited.

4. (i) The appointment and re-appointment of auditor of a Government

Company or a government controlled company is governed by the
provisions of section 139 of the Companies Act, 2013 which are
summarized as under:
The first auditor shall be appointed by the Comptroller and Auditor
General of India within 60 days from the date of incorporation and in case
of failure to do so, the Board shall appoint auditor within next 30 days and
on failure to do so by Board of Directors, it shall inform the members, who
shall appoint the auditor within 60 days at an extraordinary general
meeting (EGM), such auditor shall hold office till conclusion of first Annual
General Meeting.
In case of subsequent auditor for existing government companies, the
Comptroller & Auditor General of India shall appoint the auditor within a
period of 180 days from the commencement of the financial year and the
auditor so appointed shall hold his position till the conclusion of the
Annual General Meeting.
(ii) In the given case as the total shareholding of the XYZ Bank is just 18%
of the subscribed capital of the company, it is not a government
company. Hence the provisions applicable to non-government
companies in relation to the appointment of auditors shall apply.
The auditor shall be appointed as follows:
(1) The company shall, at the first annual general meeting, appoint an
individual or a firm as an auditor who shall hold office from the
conclusion of that meeting till the conclusion of its sixth annual
general meeting and thereafter till the conclusion of every sixth
meeting.
(2) Before such appointment of auditor is made, the written consent of
the auditor to such appointment, and a certificate from him or firm of
auditors that the appointment, if made, shall be obtained from the
auditor:
Further, the company shall inform the auditor concerned of his or its
appointment, and also file a notice of such appointment with the

Registrar within 15 days of the meeting in which the auditor is

appointed.
5. As per section 141(3)(d)(i), an auditor is disqualified to be appointed as an
auditor if he, or his relative or partner holds any security of or interest in the
company or its subsidiary, or of its holding or associate company or a
subsidiary of such holding company.
In the present case, Mr. Abhi is holding security of ` 1000 in the Abhiman Ltd,
therefore, he is not eligible for appointment as an auditor of Abhiman Ltd.
6. (i) As per section 141 (3)(d)(i) of the Companies Act, 2013, an auditor is
disqualified to be appointed as an auditor if he, or his relative or partner
holding any security of or interest in the company or its subsidiary, or
of its holding or associate company or a subsidiary of such holding
company. Further as per proviso to this Section, the relative of the
auditor may hold the securities or interest in the company of face value
not exceeding of ` 1,00,000. In the present case, Mr. Aakash (relative
of Mr. Prakash, an auditor), is having securities of ABC Ltd. having face
value of ` 70,000 (market value ` 1,10,000), which is within the limit as
per requirement of under the proviso to section 141 (3)(d)(i). Therefore,
Mr. Prakash will not be disqualified to be appointed as an auditor of
ABC Ltd.
(ii) As per section 141(3)(d)(ii), an auditor is disqualified to be appointed as
an auditor if he or his relative or partner is indebted to the company, or
its subsidiary, or its holding or associate company or a subsidiary of
such holding company, in excess of rupees 5 Lakh. In the instant case,
Mr. Ramesh will be disqualified to be appointed as an auditor of MNP
Ltd. as he indebted to MNP Ltd. for rupees 6 Lakh.
(iii) As per section 141(3)(f), an auditor is disqualified to be appointed as an
auditor if a person whose relative is a director or is in the employment
of the company as a director or a key managerial personnel. In the
instant case, since Mrs. KVJ Spouse of Mr. Kumar (Chartered
Accountant) is the store keeper (not a director or KMP) of PRC Ltd.,
hence Mr. Kumar will not be disqualified to be appointed as an auditor
in the said company.

7. According to section 144 of the Companies Act, 2013, an auditor appointed

under this Act shall provide to the company only such other services as are
approved by the Board of Directors or the audit committee, as the case may
be. But such services shall not include designing and implementation of any
financial information system.
In the said instance, the Board of directors of A Ltd. requested its Statutory
Auditor to accept the assignment of designing and implementation of
suitable financial information system to strengthen the internal control
mechanism of the company. As per the above provision said service is strictly
prohibited.
In case the Statutory Auditor accepts the assignment, he will attract the penal
provisions as specified in Section 147 of the Companies Act, 2013.
In the light of the above provisions, we shall advise the Statutory Auditor not
to take up the above stated assignment.

CHAPTER 11
COMPANIES
INCORPORATED OUTSIDE
INDIA
Learning Outcomes
After reading this chapter, you will be able to:
❑ Know the meaning of the Foreign Company and application
of Act to it.
❑ Explain the provisions related to Accounts of Foreign
company, service on foreign company.
❑ Comprehend the provisions of debentures, annual return,
registration of charges, books of account and their
inspection in Foreign companies.
❑ Analyse dating of prospectus and particulars to be
contained therein, provisions as to expert’s consent and
allotment and registration of prospectus.
❑ Know about offer of Indian Depository Receipts.
❑ Merger or amalgamation of Company with foreign
company.

❑
CHAPTER OVERVIEW
1. INTRODUCTION
Chapter Consists of sections 379 to 393A as well as the Companies
XXII (Registration of Foreign Companies) Rules, 2014.
Foreign Company [Section 2(42)]: “Foreign company” means any company or

body corporate incorporated outside India which-
(a) has a place of business in India whether by itself or through an agent,
physically or through electronic mode; and
(b) conducts any business activity in India in any other manner.
Example 1: ABC Entertainment Limited (Indian Company) having foreign subsidiary
UVW Limited rendering satellite services to the group will be covered under the
definition of Foreign Company under the Companies Act, 2013.
Example 2: Airline companies who operate through their booking agents in India will
be covered under the definition of Foreign Company under the Companies Act, 2013.
According to the 1Companies (Registration of Foreign Companies) Rules, 2014,
“electronic mode” means carrying out electronically based, whether main server
is installed in India or not, including, but not limited to –
1
Rule 2(1)(h) of the Companies (Specification of Definitions Details) Rule, 2014

COMPANIES INCORPORATED OUTSIDE INDIA 11.3
(a) business to business and business to consumer transactions, data

interchange and other digital supply transactions;
(b) offering to accept deposits or inviting deposits or accepting deposits
v or
subscriptions in securities, in India or from citizens of India;
(c) financial settlements, web based marketing, advisory and transactional
services, database services and products, supply chain management;
(d) online services such as telemarketing, telecommuting, telemedicine,
education and information research; and
(e) all related data communication services,
whether conducted by e-mail, mobile devices, social media, cloud computing,
document management, voice or data transmission or otherwise.
Explanation- For the purposes of this clause, electronic based offering of
securities, subscription thereof or listing of securities in the International Financial
Services Centres set up under section 18 of the Special Economic Zones Act, 2005
shall not be construed as ‘electronic mode’ for the purpose of clause (42) of
Example 3: Zakpak Ltd. is a shipping company incorporated in Japan. The
Company has set up a branch office in India after obtaining necessary approvals
from RBI. Branch Offices are generally considered as a reflection of the Parent
Company’s office. Thus, branch offices of a company incorporated outside India
are considered as a place of business for conducting business activity in India and
will be required to follow provisions of this chapter and such other provisions as
may be specified elsewhere under Companies Act, 2013.
2
Facts: Union Minister of State for Corporate Affairs Shri Rao Inderjit Singh in a
written reply to a question in Rajya Sabha stated that 320 foreign companies were
registered in India between 2018 and 2021.
2
Press release dated July 27, 2021 published by Press Information Bureau Delhi

2. APPLICATION OF ACT TO FOREIGN

According to this section:
(i) Applicability of Act to foreign companies: Sections 380 to 386 (both
inclusive) and sections 392 and 393 shall apply to all foreign companies. It implies
that all companies which falls within the definition of foreign company as per
section 2(42), shall comply with the provisions of this Chapter.
(ii) Requirement of holding of paid up share capital: Where not less than
50% of the paid-up share capital, whether equity or preference or partly equity
and partly preference, of a foreign company incorporated outside India is held by:
(i) one or more citizens of India; or
(ii) by one or more companies or bodies corporate incorporated in India; or
(iii) by one or more citizens of India and one or more companies or bodies
corporate incorporated in India,
whether singly or in the aggregate, such foreign company shall also comply with
the provisions of Chapter XXII and such other provisions of this Act as may be
prescribed with regard to the business carried on by it in India as if it were a
company incorporated in India. [Section 379(2)]
Note: Chapter XXII referred to above deals with the legal provisions for
companies incorporated outside India.
Example 4: The shareholding of Emaar Company LLC, incorporated in Dubai and
having a place of business in India, is as follows:
1. Hinduja Company Limited (Indian Company): 26%
2. Vaishali Company Limited (Indian Company): 25%
3. Citizens of Dubai: Remaining holding
As per section 379(2), Emaar Company LLC will also be required to comply with
the provisions of Chapter XXII as not less than 50% of the shareholders of Emaar
Company LLC consists of body corporates incorporated in India. Emaar Company
LLC will also be required to comply with other provisions of this Act as may be

prescribed with regard to the business carried on by its place of business in India
as if it were a company incorporated in India.
v
3. DOCUMENTS, ETC., TO BE DELIVERED TO
REGISTRAR BY FOREIGN COMPANIES
[SECTION 380]
According to section 380 (1) of the Companies Act, 2013,
(i) Every foreign company shall, within 30 days of the establishment of its place
of business in India, deliver to the Registrar for registration:
(a) a certified copy of the charter, statutes or memorandum and articles,
of the company or other instrument constituting or defining the
constitution of the company. If the instrument is not in the English
language, a certified translation thereof in the English language;
(b) the full address of the registered or principal office of the company;
(c) a list of the directors and secretary of the company containing such
particulars as may be prescribed;
In relation to the nature of particulars to be provided as above, 3the
Companies (Registration of Foreign Companies) Rules, 2014, provide
that the list of directors and secretary or equivalent (by whatever
name called) of the foreign company shall contain the following
particulars, for each of the persons included in such list, namely:
(1) personal name and surname in full;
(2) any former name or names and surname or surnames in full;
(3) 4
father’s name or mother’s name or spouse’s name;
(4) date of birth;
3
Rule 3 of the Companies (Registration of Foreign Companies) Rules, 2014
4
Substituted by Companies (Registration of Foreign Companies) Rules, 2014 dated 20th
January, 2023

(5) residential address;

(6) nationality;
(7) if the present nationality is not the nationality of origin, his
nationality of origin;
(8) passport Number, date of issue and country of issue; (if a
person holds more than one passport then details of all
passports to be given)
(9) income-tax permanent account number (PAN), if applicable;
(10) occupation, if any;
(11) whether directorship in any other Indian company, (Director
Identification Number (DIN), Name and Corporate Identity
Number (CIN) of the company in case of holding directorship);
(12) other directorship or directorships held by him;
(13) Membership Number (for Secretary only); and
(14) e-mail ID.
(d) the name and address or the names and addresses of one or more
persons resident in India authorised to accept on behalf of the
company service of process and any notices or other documents
required to be served on the company;
(e) the full address of the office of the company in India which is
deemed to be its principal place of business in India;
(f) particulars of opening and closing of a place of business in India

on earlier occasion or occasions;
(g) declaration that none of the directors of the company or the

authorised representative in India has ever been convicted or
debarred from formation of companies and management in India or
abroad; and
(h) any other information as may be prescribed.

(ii) Form, procedure and time for making application and submission of
prescribed documents: According to the Companies (Registration of
Foreign Companies) Rules, 2014, the above information shall be vfiled with
the Registrar within 30 days of the establishment of its place of business in
India, in Form FC-1 along with prescribed fees and documents required to
be furnished as provided in section 380(1). The application shall also be
supported with an attested copy of approval from the Reserve Bank of India
under the Foreign Exchange Management Act or Regulations, and also from
other regulators, if any, approval is required by such foreign company to
establish a place of business in India or a declaration from the authorised
representative of such foreign company that no such approval is required.
(iii) Office where documents to be delivered and fee for registration of
documents:
1. 5
According to the Companies (Registration of Foreign Companies)
Rules, 2014, any document which any foreign company is required to
deliver to the Registrar shall be delivered to the Registrar having
jurisdiction over New Delhi.
2. It shall be accompanied with the prescribed fees 6.
3. If any foreign company ceases to have a place of business in India, it
shall forthwith give notice of the fact to the Registrar, and from the
date on which such notice is so given, the obligation of the company
to deliver any document to the Registrar shall cease, provided it has
no other place of business in India.
(iv) Under section 380(2) every foreign company existing at the commencement
of the Companies Act 2013, which has not delivered to the Registrar the
documents and particulars specified in section 592(1) of the Companies Act,
1956, it shall continue to be subject to the obligation to deliver those
documents and particulars in accordance with the Companies Act, 1956.
5
6
Rule 12 of the Companies (Registration Offices and Fees) Rules, 2014

(v) Form, procedure and time within which alteration in documents shall
be intimated to Registrar: Section 380(3) provides that where any
alteration is made or occurs in the documents delivered to the Registrar
under section 380, the foreign company shall, within 30 days of such
alteration, deliver to the Registrar for registration, a return containing the
particulars of the alteration in the prescribed form. The Companies
(Registration of Foreign Companies) Rules, 2014, has prescribed that the
return containing the particulars of the alteration shall be filed in form FC-2
along with prescribed fees.
Illustration 1: Search & Find Pte. Ltd., incorporated in Singapore. The Company
sells its goods through electronic mode on the e-commerce platforms in India,
however, it does not have any branch or office in India. Is the Company required to
submit the documents as required under Section 380 of the Companies Act, 2013.
Answer: Yes, as per 2(42) of Companies Act, 2013, any company or body
corporate incorporated outside India which (a) has a place of business in India
whether by itself or through an agent, physically or through electronic mode; and
(b) conducts any business activity in India in any other manner shall be
considered as a foreign company. Accordingly, as Search & Find Pte. Ltd., is
conducting its business through electronic mode, it is considered a foreign
company as per Companies Act, 2013 and is required to submit the documents
mentioned under Section 380 of the Companies Act, 2013.
4. ACCOUNTS OF FOREIGN COMPANY

[SECTION 381]
(i) Every foreign company shall, in every calendar year,—
(a) make out a balance sheet and profit and loss account in such form,
containing such particulars and including or having attached or
annexed thereto such documents as may be prescribed, and
(b) deliver a copy of those documents to the Registrar.

According to the 7Companies (Registration of Foreign Companies) Rules,

2014, every foreign company shall prepare financial statement of its Indian
business operations in accordance with Schedule III or as near thereto as
v
possible for each financial year including:
(1) documents that are required to be annexed should be in accordance
with Chapter IX i.e. Accounts of Companies.
(2) The documents relating to copies of latest consolidated financial
statements of the parent foreign company, as submitted by it to the
prescribed authority in the country of its incorporation under the
applicable laws there.
Note: “financial year” in relation to any company or body corporate,
means the period ending on the 31 st day of March every year, and
where it has been incorporated on or after the 1 st day of January of a
year, the period ending on the 31st day of March of the following year,
in respect whereof financial statement of the company or body
corporate is made up:
Provided that where a company or body corporate, which is a holding
company or a subsidiary or associate company of company
incorporated outside India and is required to follow a different
financial year for consolidation of its accounts outside India, the
Central Government may, on an application made by that company or
body corporate in such form and manner as may be prescribed, allow
any period as its financial year, whether or not that period is a year.
Provided further that any application pending before the Tribunal as
on the date of commencement of the Companies (Amendment)
Ordinance, 2018, shall be disposed of by the Tribunal in accordance
with the provisions applicable to it before such commencement.
It is important to note that a foreign company having its place of
business in India may not necessarily follow a financial year ending on
the 31st day of March every year provided it has obtained the requisite
approvals from the Central Government for the same.
7

Example 5:
ROK Limited, is a company incorporated outside India having a place of
business in India. ROK Limited is a subsidiary of HOK Limited (Holding
company), registered in Australia and is required to consolidate its
accounts with HOK Limited. Accordingly, if HOK Limited is required to
follow financial year other than 31st day of March every year, ROK can
make an application to Central Government to follow the financial year as
per HOK Limited.
(ii) The Central Government is empowered to direct that, in the case of any
foreign company or class of foreign companies, the requirements of clause
(a) given above shall not apply, or shall apply subject to such exceptions
and modifications as may be specified in notification in that behalf [Section
381(1)].
(iii) If any of the specified documents are not in the English language, a certified
translation thereof in the English language shall be annexed. [Section 381
(2)]
(iv) Every foreign company shall send to the Registrar along with the
documents required to be delivered to him, a copy of a list in the prescribed
form, of all places of business established by the company in India as at the
date with reference to which the balance sheet referred to in section 381(1)
is made.
8
According to the Companies (Registration of Foreign Companies) Rules,
2014, every foreign company shall file with the Registrar, along with the
financial statement, in Form FC-3 with such fee as provided under
Companies (Registration Offices and Fees) Rules, 2014 a list of all the places
of business established by the foreign company in India as on the date of
balance sheet.
According to the 9Companies (Registration of Foreign Companies) Rules,
2014, if any foreign company ceases to have a place of business in India, it
8
9

shall forthwith give notice of the fact to the Registrar, and as from the date
on which notice is so given, the obligation of the company to deliver any
document to the Registrar shall cease, if it does not have other place of
business in India. v
(v) According to the 10

Companies (Registration of Foreign Companies) Rules,
2014,
(a) Further, every foreign company shall, along with the financial
statement required to be filed with the Registrar, attach thereto the
following documents; namely:-
(1) Statement of related party transaction
(2) Statement of repatriation of profits
(3) Statement of transfer of funds (including dividends, if any)
The above statements shall include such other particulars as are
prescribed in the Companies (Registration of Foreign Companies)
Rules, 2014.
(b) All these documents shall be delivered to the Registrar within a
period of 6 months of the close of the financial year of the
foreign company to which the documents relate.
Provided that the Registrar may, for any special reason, and on
application made in writing by the foreign company concerned,
extend the said period by a period not exceeding three months.
Example 6: Mukesh & Jordan LLC is a foreign company and is required to
file its financial statements within six months of the close of the financial
year with Registrar on an annual basis alongwith following additional
documents:
10

However, where the Central Government has exempted or specified

different documents for any foreign company or a class of foreign
companies, then documents as specified shall be submitted.
(vi) Audit of accounts of foreign company: According to the Companies
11
(Registration of Foreign Companies) Rules, 2014,

(a) Every foreign company shall get its accounts, pertaining to the
Indian business operations prepared in accordance with section
381(1) and Rules thereunder, shall be audited by a practicing
Chartered Accountant in India or a firm or limited liability partnership
of practicing chartered accountants.
(b) The provisions of Chapter X i.e. Audit and Auditors and rules made
there under, as far as applicable, shall apply, mutatis mutandis, to the
foreign company.
5. DISPLAY OF NAME, ETC., OF FOREIGN

COMPANY [SECTION 382]
Every foreign company shall—
(a) conspicuously exhibit on the outside of every office or place where it carries
on business in India, the name of the company and the country in which it is
incorporated, in letters easily legible in English characters, and also in the
characters of the language or one of the languages in general use in the
locality in which the office or place is situate;
(b) cause the name of the company and of the country in which the company is
incorporated, to be stated in legible English characters in all business
letters, bill-heads and letter paper, and in all notices, and other official
publications of the company; and
(c) if the liability of the members of the company is limited, cause notice of that
fact—
11

(i) to be stated in every such prospectus issued and in all business letters,
bill-heads, letter paper, notices, advertisements and other official
publications of the company, in legible English characters; and
v
(ii) to be conspicuously exhibited on the outside of every office or place
where it carries on business in India, in legible English characters and
also in legible characters of the language or one of the languages in
general use in the locality in which the office or place is situated.
6. SERVICE ON FOREIGN COMPANY [SECTION

383]
Any process, notice, or other document required to be served on a foreign
company shall be deemed to be sufficiently served, if addressed to any person
whose name and address have been delivered to the Registrar under section 380
and left at, or sent by post to, the address which has been so delivered to the
Registrar or by electronic mode.
7. DEBENTURES, ANNUAL RETURN,

REGISTRATION OF CHARGES, BOOKS OF
ACCOUNT AND THEIR INSPECTION
[SECTION 384]
(i) The provisions of section 71 (Issue of Debentures) shall apply mutatis
mutandis to a foreign company.
(ii) The provisions of section 92 (Preparation and filing of Annual return) shall,
subject to such exceptions, modifications and adaptations as may be made
therein by rules made under this Act, apply to a foreign company as they
apply to a company incorporated in India. Further, as per Rule 3 of the
Companies (Corporate Social Responsibility Policy) Rules 2014, a foreign
company which fulfils the criteria specified under Section 135(1) of the
Companies Act 2013 is required to comply with Section 135 of the
Companies Act, 2013, subject to such exceptions, modifications and

adaptations as may be made therein by rules made under this Act, apply to
a foreign company as they apply to a company incorporated in India.
12
2014, every foreign company shall prepare and file an annual return in Form
FC-4 along with prescribed fees, within a period of 60 days from the last day
of its financial year, to the Registrar containing the particulars as they stood
on the close of the financial year.
(iii) The provisions of section 128 (Books of account, etc., to be kept by
company) shall apply to a foreign company to the extent of requiring it to
keep at its principal place of business in India, the books of account referred
to in that section, with respect to monies received and spent, sales and
purchases made, and assets and liabilities, in the course of or in relation to
its business in India.
(iv) The provisions of Chapter VI (Registration of Charges) shall apply mutatis
mutandis to charges on properties which are created or acquired by any
foreign company.
(v) The provisions of Chapter XIV (Inspection, inquiry and investigation) shall
apply mutatis mutandis to the Indian business of a foreign company as they
apply to a company incorporated in India.
8. FEE FOR REGISTRATION OF DOCUMENTS

[SECTION 385]
There shall be paid to the Registrar for registering any document required by the
provisions of this Chapter to be registered by him, such fee, as may be prescribed.
13
According to the Companies (Registration of Foreign Companies) Rules, 2014,
the fees to be paid to the Registrar for registering any document relating to a
foreign company shall be such as provided in the Companies (Registration
Offices and Fees) Rules, 2014.
12
13

9. INTERPRETATION [SECTION 386]

For the purposes of the foregoing provisions of this Chapter, the expression:
v
(a) “Certified” means certified in the prescribed manner to be a true copy or a
correct translation;
(b) “Director”, in relation to a foreign company, includes any person in
accordance with whose directions or instructions the Board of Directors of
the company is accustomed to act; and
(c) “Place of business” includes a share transfer or registration office.
Illustration 2: Examine with reference to the provisions of the Companies Act, 2013
whether the following companies can be treated as foreign companies:
(i) A company incorporated outside India having a share registration office at
Mumbai.
(ii) Indian citizens incorporated a company in Singapore for the purpose of

carrying on business there.
Answer: Section 2(42) of the Companies Act, 2013 defines a “foreign company” as
any company or body corporate incorporated outside India which:
(a) Has a place of business in India whether by itself or through an agent,

(b) Conducts any business activity in India in any other manner.
According to section 386 of the Companies Act, 2013, for the purposes of Chapter
XXII of the Companies Act, 2013 (Companies incorporated outside India),
expression “Place of business” includes a share transfer or registration office.
Further, to qualify as a ‘foreign company’ a company must have the following

features:
(a) it must be incorporated outside India; and
(b) it should have a place of business in India.
(c) That place of business may be either in its own name or through an agent
or may even be through the electronic mode; and

(d) It must conduct a business activity of any nature in India.
(i) Therefore, a company incorporated outside India having a share

registration office at Mumbai will be treated as a foreign company
provided it conducts any business activity in India.
(ii) In the case of a company incorporated in Singapore for the purpose of

carrying on business in Singapore, it will not fall within the definition
of a foreign company. Its incorporation outside India by Indian
citizen is immaterial. In order to be a foreign company it has to have a
place of business in India and must also conduct a business activity in
India.
10. DATING OF PROSPECTUS AND

PARTICULARS TO BE CONTAINED THEREIN
[SECTION 387]
(i) Prospectus to be dated and signed [Section 387(1)]: No person shall
issue, circulate or distribute in India any prospectus offering to subscribe for
securities of a company incorporated or to be incorporated outside India,
whether the company has or has not established, or when formed will or will
not establish, a place of business in India, unless the prospectus is dated
and signed, and—
(a) contains particulars with respect to the following matters, namely:—
(1) the instrument constituting or defining the constitution of the
company;
(2) the enactments or provisions by or under which the
incorporation of the company was effected;
(3) address in India where the said instrument, enactments or

provisions, or copies thereof, and if the same are not in the

English language, a certified translation thereof in the English

language can be inspected;
(4) the date on which and the country in which the company
v would
be or was incorporated; and
(5) whether the company has established a place of business in
India and, if so, the address of its principal office in India; and
(b) states the matters specified under section 26 (Matters to be stated in

prospectus).
Provided that points (1), (2) and (3) of point (a) above shall not apply in the
case of a prospectus issued more than 2 years after the date at which the
company is entitled to commence business.
Example 7: Mir Company LLC, a company incorporated in Dubai, on 28th

April 2017. Mir Company LLC has established a place of Business in Mumbai
in the year 2020. Now the place of business in India proposes to offer
subscription to securities of Mir Company LLC. Now the place of business in
India before going with the subscription will have to file a prospectus dated
and signed and the prospectus shall not be required to contain the
particulars mentioned in points (1), (2) and (3) of point (a) above as the
prospectus will be getting issued after a period of more than 2 years since
the Mir Company LLC has commenced its business.
(ii) No waiver of compliance in prospectus [Section 387(2)]: Any condition
requiring or binding an applicant for securities to waive compliance with
any requirement imposed by virtue of section 387(1) or purporting to
impute him with notice of any contract, documents or matter not
specifically referred to in the prospectus, shall be void.
It is to be understood that section 387 (2) does not provides any exception
with respect to the non-compliance of the requirements stated under
section 387 (1) by any person responsible for issuing or circulating
prospectus.
(iii) Form of application for securities to be issued along with prospectus

[Section 387(3)]: No person shall issue to any person in India a form of

application for securities of such a company or intended company as is

mentioned in section 387(1), unless the form is issued with a prospectus
which complies with the provisions of this Chapter (Chapter XXII) and such
issue does not contravene the provisions of section 388:
Exception: If it is shown that the form of application was issued in

connection with a bona fide invitation to a person to enter into an
underwriting agreement with respect to securities.
(iv) Section 387(4) further provides that the provisions of section 387—
(a) shall not apply to the issue to existing members or debenture

holders of a company of a prospectus or form of application relating
to securities of the company, whether an applicant for securities will
or will not have the right to renounce in favour of other persons; and
(b) except in so far as it requires a prospectus to be dated, to the issue

of a prospectus relating to securities which are or are to be in all
respects uniform with securities previously issued and for the time
being dealt in or quoted on a recognised stock exchange,
but, subject as aforesaid, section 387 shall apply to a prospectus or form

of application whether issued on or with reference to the formation of a
company or subsequently.
According to section 387(4), the provisions of section 387 shall not apply
to the issue of prospectus or form of application relating to securities of
the company to existing member or debenture holders of a company; and
The provisions of section 387 shall not apply in respect of issue of

prospectus dealing with offer for securities which are uniform in all
respects with securities previously issued and such previously issued
securities are listed on a recognised stock exchange. However, provisions
relating to dating of prospectus shall continue to apply.

(v) Nothing in Section 387 shall limit or diminish any liability which any
person may incur under any law for the time being in force in India or
under the Companies Act, 2013 apart from Section 387. v
11. PROVISIONS AS TO EXPERT’S CONSENT

AND ALLOTMENT [SECTION 388]
(i) No person shall issue, circulate or distribute in India any prospectus offering
for subscription in securities of a company incorporated or to be
incorporated outside India, whether the company has or has not been
established, or when formed will or will not establish, a place of business in
India,—
(a) if, where the prospectus includes a statement purporting to be made
by an expert, he has not given, or has before delivery of the
prospectus for registration withdrawn, his written consent to the
issue of the prospectus with the statement included in the form
and context in which it is included, or there does not appear in the
prospectus a statement that he has given and has not
withdrawn his consent as aforesaid; or
(b) if the prospectus does not have the effect, where an application is
made in pursuance thereof, of rendering all persons concerned bound
by all the provisions of section 33 (Issue of application forms for
securities) and section 40 (Securities to be dealt with in stock
exchanges), so far as applicable.
(ii) For the purposes of this section, a statement shall be deemed to be
included in a prospectus, if it is contained in any report or memorandum
appearing on the face thereof or by reference incorporated therein or
issued therewith.

12. REGISTRATION OF PROSPECTUS [SECTION

389]
No person shall issue, circulate or distribute in India any prospectus offering for
subscription in securities of a company incorporated or to be incorporated
outside India, whether the company has or has not established, or when formed
will or will not establish, a place of business in India, unless before the issue,
circulation or distribution of the prospectus in India;
✓ a copy thereof certified by the chairperson of the company and two other
directors of the company as having been approved by resolution of the
managing body has been delivered for registration to the Registrar; and
✓ the prospectus states on the face of it that a copy has been so delivered,
and
✓ there is endorsed on or attached to the copy, any consent to the issue of

the prospectus required by section 388 and such documents as may be
prescribed.
14
According to the Companies (Registration of Foreign Companies) Rules, 2014,
the following documents shall be annexed to the prospectus, namely:
(a) any consent to the issue of the prospectus required from any person as
an expert;
(b) a copy of contracts for appointment of managing director or manager and

in case of a contract not reduced into writing, a memorandum giving full
particulars thereof;
(c) a copy of any other material contracts, not entered in the ordinary course
of business, but entered within preceding 2 years;
14

(d) a copy of underwriting agreement; and
(e) a copy of power of attorney, if prospectus is signed through duly authorized

agent of directors. v
13. OFFER OF INDIAN DEPOSITORY RECEIPTS

[SECTION 390]
For the purposes of this section, and according to the 15Companies (Registration
of Foreign Companies) Rules, 2014, Indian Depository Receipts (IDR) means any
instrument in the form of a depository receipt created by a Domestic Depository
in India and authorized by a company incorporated outside India making an issue
of such depository receipts.
According to section 390, notwithstanding anything contained in any other law
for the time being in force, the Central Government may make rules applicable
for—
(i) the offer of Indian Depository Receipts (IDR);
(ii) the requirement of disclosures in prospectus or letter of offer issued
in connection with IDR;
(iii) the manner in which the IDR shall be dealt with in a depository mode and
by custodian and underwriters; and
(iv) the manner of sale, transfer or transmission of IDR,

by a company incorporated or to be incorporated outside India, whether the
company has or has not established, or will or will not establish, any place of
business in India.
According to Rule 13 of the Companies (Registration of Foreign Companies)
Rules, 2014, no company incorporated or to be incorporated outside India,
whether the company has or has not established, or may or may not establish,
any place of business in India shall make an issue of Indian Depository Receipts
15

(IDRs) unless it complies with the conditions mentioned under this rule, in
addition to the Securities and Exchange Board of India (Issue of Capital and
Disclosure Requirements) Regulations, 2009 and any directions issued by the
Reserve Bank of India.
The Rules relating to offer, disclosure requirements and manner of transfer, sale
etc., related to IDR are contained in Companies (Registration of Foreign
Companies) Rules, 2014.
Standard Chartered PLC was the first global company to file for an issue of IDR in
India in 2010.
Application of Chapter XV (Compromises, Arrangements and

Amalgamations): Section 234 of the Companies Act, 2013 deals with merger or
amalgamation of company with foreign company.
Section 234(1) states that the provisions of Chapter XV unless otherwise provided
under any other law for the time being in force, shall apply mutatis mutandis to
schemes or mergers and amalgamations between companies registered under
this Act and companies incorporated in the jurisdictions of such countries as may
be notified from time to time by the Central Government. Provided that the
Central Government may make rules, in consultation with the Reserve Bank of
India, in connection with mergers and amalgamations provided under this
section.
Section 234(2) states that subject to the provisions of any other law for the time
being in force, a foreign company, may with the prior approval of the Reserve Bank
of India, merge into a company registered under this Act or vice versa and the terms
and conditions of the scheme of merger may provide, among other things, for the
payment of consideration to the shareholders of the merging company in cash, or in
Depository Receipts, or partly in cash and partly in Depository Receipts, as the case
may be, as per the scheme to be drawn up for the purpose.
Explanation: For the purposes of sub-section (2) above, the expression “foreign
company” means any company or body corporate incorporated outside India
whether having a place of business in India or not.

14. APPLICATION OF SECTIONS 34 TO 36 AND

CHAPTER XX [SECTION 391]
v
Section 391 of the Companies Act, 2013 provides for Application of sections 34 to
36 and Chapter XX. According to this section:
According to sub-section (1), the provisions of sections 34 to 36 (both inclusive)
shall apply to—
(i) the issue of a prospectus by a company incorporated outside India under

section 389 as they apply to prospectus issued by an Indian company;
(ii) the issue of IDR by a foreign company.
Section 34 deals with criminal liability for mis-statements in prospectus.

Section 35 deals with Civil Liability for mis-statement in prospectus.
Section 36 deals with punishment for fraudulently inducing persons to
invest money.
Sub-section (2) provides that, subject to the provisions of section 376 (Power to
wind up Foreign companies although dissolved), the provisions of Chapter XX (i.e.
Chapter on Winding up) shall apply mutatis mutandis for closure of the place of
business of a foreign company in India as if it were a company incorporated in
India in case such foreign company has raised monies through offer or issue of
securities under this Chapter which have not been repaid or redeemed.

[SECTION 392]
Without prejudice to the provisions of section 391, if a foreign company
contravenes the provisions of Chapter XXII of the Companies Act, 2013 (i.e.
Chapter on Companies incorporated outside India), the foreign company shall be
punishable with fine which shall not be less than 1,00,000 rupees but which may
extend to 3,00,000 rupees and in the case of a continuing offence, with an
additional fine which may extend to 50,000 rupees for every day after the first
during which the contravention continues and every officer of the foreign

company who is in default shall be punishable with fine which shall not be less
than 25,000 rupees but which may extend to 5,00,000 rupees.
Thus, the punishment for contravention may be summed up as under:
1. Fine on defaulting foreign company in the range of 1 lac rupees to 3 lac
rupees.
2. In case of continuing default an additional fine on the foreign company to
the tune of 50,000 rupees per day after the first during which the
contravention continues.
3. Punishment for every officer of the foreign company who is in default shall
be imposition of a fine of a minimum amount of 25,000 rupees, but which
may extend to 5,00,000 rupees.
16. COMPANY’S FAILURE TO COMPLY WITH

PROVISIONS OF THIS CHAPTER NOT TO
AFFECT VALIDITY OF CONTRACTS, ETC
[SECTION 393]
Any failure by a company to comply with the provisions of Chapter XXII of the
Companies Act, 2013, shall not affect the validity of any contract, dealing or
transaction entered into by the company or its liability to be sued in respect
thereof. However, the company shall not be entitled to bring any suit, claim any
set-off, make any counter-claim or institute any legal proceeding in respect of any
such contract, dealing or transaction, until the company has complied with the
provisions of the Companies Act, 2013, applicable to it.
17. RULE 12 OF COMPANIES (REGISTRATION OF

FOREIGN COMPANIES) RULES, 2014
Action for Improper Use or Description as Foreign Company: It states that if any
person or persons trade or carry on business in any manner under any name or
title or description as a foreign company registered under the Act or the rules
made thereunder, that person or each of those persons shall, unless duly

registered as foreign company under the Act and rules made thereunder, shall be
liable for investigation under section 210 of the Act and action consequent upon
that investigation shall be taken against that person.
v
18. EXEMPTIONS UNDER THIS CHAPTER
The Central Government may, by notification, exempt any class of-
(a) foreign companies;
(b) companies incorporated or to be incorporated outside India, whether the

company has or has not established, or when formed may or may not
establish, a place of business in India,
in so far as they relate to the offering for subscription in the securities,

requirements related to the prospectus, and all matters incidental thereto in the
International Financial Services Centres set up under section 18 of the Special
Economic Zones Act, 2005.
SUMMARY
◼ Foreign company” means any company or body corporate incorporated
outside India which-

◼ Every foreign company shall, in every calendar year,—
(a) make out a balance sheet and profit and loss account in prescribed
format, and
◼ The punishment for contravention is as under:
1. Fine on defaulting foreign company in the range of 1 lac rupees to 3

lac rupees.

2. In case of continuing default an additional fine on the foreign

company to the tune of 50,000 rupees per day after the first during
which the contravention continues.
3. Punishment for every officer of the foreign company who is in default

shall be imposition of a fine of a minimum amount of 25,000 rupees,
but which may extend to 5,00,000 rupees.
TEST YOUR KNOWLEDGE

1. Jackson Communications LLC, incorporated in Arizona, USA, has established a
principal place of business at Kolkata, West Bengal. It is required to deliver
requisite documents to the specified authority. You are required to select an
appropriate option from the four given below which indicates the number of days
within which such documents shall be delivered:
(a) Jackson Communications LLC shall, within 10 days of the establishment of
a principal place of business in India, deliver the requisite documents to the
specified authority.
(b) Jackson Communications LLC shall, within 15 days of the establishment of
(c) Jackson Communications LLC shall, within 30 days of the establishment of
(d) Jackson Communications LLC shall, within 45 days of the establishment of
2. Morgen Stern Digi Cables GmbH incorporated in Berlin, Germany, established a
place of business at Mumbai to conduct its business of data interchange and
other digital supply transactions online. However, Morgen Stern Digi Cables
GmbH failed to deliver certain documents to the jurisdictional Registrar of
Companies within the prescribed time period in compliance with the respective

statutory provisions. Which option, out of the four given below, shall correctly
indicate the amount of fine with which Morgen Stern Digi Cables GmbH shall be
punishable for its failure to deliver certain documents:
v
(a) Morgen Stern Digi Cables GmbH is punishable with fine which shall not be
less than 50,000 rupees but which may extend to 5,00,000 rupees and in
the case of a continuing offence, with an additional fine upto 25,000
rupees for every day after the first during which the contravention
continues.
(b) Morgen Stern Digi Cables GmbH is punishable with fine which shall not be
less than 1,00,000 rupees but which may extend to 5,00,000 rupees and in
continues.
(c) Morgen Stern Digi Cables GmbH is punishable with fine which shall not be
continues.
(d) Morgen Stern Digi Cables GmbH is punishable with fine which shall not be
continues.
3. Radix Healthcare Ltd., a company registered in Thailand, although has no place
of business established in India, yet it is engaged in online business through
remote delivery of healthcare services in India. Select the incorrect statement
from those given below as to the nature of the Radix Healthcare Ltd. in the light
of the applicable provisions of the Companies Act, 2013:
(a) Radix Healthcare Ltd. is not a foreign company as it has no place of
business established in India.
(b) Radix Healthcare Ltd. is a foreign company being involved in business
activity through telemedicine.
(c) Radix Healthcare Ltd. is a foreign company for conducting business
through electronic mode.

(d) Radix Healthcare Ltd. is a foreign company as it conducts business activity

in India.
4. Fam Software Company Inc., a company incorporated in Australia, proposes to
establish a place of business at Mumbai. The list of the Directors includes (i) Mr.
Arjun – Managing Director, (ii) Mr. Ranveer – Director, (iii) Mr. Ramesh Malik -
Director and (iv) Mr. Arbaaz - Director. Ms. Lavina has been appointed as the
Secretary of Fam Software Company Inc. It is to be noted that Mr. Ramesh Malik
and Mr. Arbaaz, resident in India, are the persons who have been authorised by
Fam Software Company Inc. to accept on behalf of the company service of
process, notices or other documents required to be served on Fam Software
Company Inc. In relation to the company’s establishment, you are required to
enlighten the Fam Company Inc. with respect to whose, a declaration will be
required to be submitted to the Registrar of Companies by Fam Software
Company Inc. for not being convicted or debarred from formation of companies
in or outside India.
(a) Mr. Arjun, Mr. Ranveer, Mr. Ramesh Malik, Mr. Arbaaz and Ms. Lavina.
(b) Mr. Arjun, Mr. Ramesh Malik, Mr. Arbaaz and Ms. Lavina.
(c) Mr. Ramesh Malik and Mr. Arbaaz.
(d) Mr. Arjun, Mr. Ranveer, Mr. Ramesh Malik and Mr. Arbaaz.
5. 5K Cosmetic Shop plc., a company incorporated in Switzerland, is involved in
digital supply services through electronic mode, the server of which is located
outside India. The company follows calendar year as its financial year. Every year
the company is required to prepare a balance sheet and profit and loss account.
You are required to choose the correct timeline within which such documents
shall be filed with the Registrar of Companies considering the provisions of
Chapter XXII of the Companies Act, 2013:
(a) Within a period of 30 days from the close of the financial year of 5K
Cosmetic Shop plc.
(b) Within a period of 3 months from the close of the financial year of 5K
Cosmetic Shop plc.
(c) Within a period of 60 days from the close of the financial year of 5K
Cosmetic Shop plc.

(d) Within a period of 6 months from the close of the financial year of 5K
Cosmetic Shop plc.
Descriptive Questions v
1. (i) ABC Ltd., a foreign company having its Indian principal place of
business at Kolkata, West Bengal is required to deliver various
documents to Registrar of Companies under the provisions of the
Companies Act, 2013. You are required to state, where the said
company should deliver such documents.
(ii) In case, a foreign company does not deliver its documents to the
Registrar of Companies as required under section 380 of the Companies
Act, 2013, state the penalty prescribed under the said Act, which can be
levied
2. DEJY is a Company Limited incorporated in Singapore desires to establish a

branch office at Mumbai. You being a practicing Chartered Accountant have
been appointed by the company as a liaison officer for compliance of legal
formalities on behalf of the company. Examining the provisions of the
Companies Act, 2013,answer the following:
(i) Whether branch office will be considered as a company incorporated
outside India.
(ii) If yes, state the documents you are required to furnish on behalf of the
company, on the establishment of a branch office at Mumbai.
3. Galilio Ltd. is a foreign company in Germany, and it has established a place of

business in Mumbai. Explain the relevant provisions of the Companies Act,
2013 and rules made thereunder relating to preparation and filing of
financial statements, as also the documents to be attached alongwith the
financial statements by the foreign company.
4. In the light of the provisions of the Companies Act, 2013, examine whether
the following Companies can be considered as a 'Foreign Company':
(i) Red Stone Limited is a Company registered in Singapore. The Board of
Directors meets and executes business decisions at their Board Meeting
held in India.

(ii) Xen Limited Liability Company registered in Dubai has installed its
main server in Dubai for maintaining office automation software by
Cloud Computing for its client in India.
5. Abroad Ltd., a foreign company without establishing a place of business in

India, proposes to issue prospectus for subscription of securities in India. Being
a consultant of the company, advise on the procedure of such an issue of
prospectus by Abroad Ltd.
6. Jackson & Jackson LLC, incorporated in Germany, is proposing to establish a
business in Mumbai, India. Its official documents are in German language.
Whether Jackson & Jackson LLC can file the required documents with
Registrar in the same language.
7. Swift Pharmaceuticals, a Company registered in Singapore, has started its
business in India during the financial year 2016. The Company has submitted
all the required documents with registrar within the due date. On March 1,
2023, Swift Pharmaceuticals has shifted its principal office in Singapore. Does
the Company required to undertake any steps due to change in address of
principal office.
ANSWERS
1. (c) Jackson Communications LLC shall, within 30 days of the
establishment of a principal place of business in India,
deliver the requisite documents to the specified authority.
2. (d) Morgen Stern Digi Cables GmbH is punishable with fine
which shall not be less than 1,00,000 rupees but which may
extend to 3,00,000 rupees and in the case of a continuing
offence, with an additional fine upto 50,000 rupees for every
day after the first during which the contravention continues.
3. (a) Radix Healthcare Ltd. is not a foreign company as it has no
place of business established in India.

4. (d) Mr. Arjun, Mr. Ranveer, Mr. Ramesh Malik and Mr. Arbaaz.
5. (d) Within a period of 6 months from the close of the financial
year of 5K Cosmetic Shop plc. v

1. (i) The Companies Act, 2013 vide section 380 state that every foreign
company is required to deliver to the Registrar for registration, within
30 days of the establishment of office in India, documents which have
been specified therein. According to the Companies (Registration of
Foreign Companies) Rules, 2014, any document which any foreign
company is required to deliver to the Registrar shall be delivered to
the Registrar having jurisdiction over New Delhi.
(ii) The Companies Act, 2013 lays down the governing provisions for
foreign companies in Chapter XXII which is comprised of sections 379
to 393. The penalties for non- filing or for contravention of any
provision for this chapter including for non-filing of documents with
the Registrar as required by section 380 and other sections in this
chapter are laid down in section 392 of the Act which provides that if a
foreign company contravenes the provisions of this Chapter, the
foreign company shall be punishable with a fine which shall not be
less than 1,00,000 but which may extend to 3,00,000 and in the case of
a continuing offence, with an additional fine which may extend to
50,000 for every day after the first during which the contravention
continues and every officer of the foreign company who is in default
shall be punishable with fine which shall not be less than 25,000 but
which may extend to 5,00,000.
2. (i) According to section 2(42) of the Companies Act, 2013, “Foreign

company” means any company or body corporate incorporated
outside India which-
(a) has a place of business in India whether by itself or through an
agent, physically or through electronic mode; and

Further, branch offices are generally considered as reflection of the

Parent Company’ office. Thus, branch offices of a company
incorporated outside India are considered as a place of business for
conducting business activity in India and will be required to follow
provisions of this chapter and such other provisions as may be
specified elsewhere under Companies Act, 2013.
(ii) Under section 380(1) of the Companies Act, 2013 every foreign
company shall, within 30 days of the establishment of place of
business in India, deliver to the Registrar for registration the following
documents:
(a) a certified copy of the charter, statutes or memorandum and
articles, of the company or other instrument constituting or
defining the constitution of the company. If the instruments are
not in the English language, a certified translation thereof in the
English language;
(b) the full address of the registered or principal office of the
company;
(c) a list of the directors and secretary of the company containing
such particulars as may be prescribed;
In relation to the nature of particulars to be provided as above, the
Companies (Registration of Foreign Companies) Rules, 2014, provide that
the list of directors and secretary or equivalent (by whatever name called)
of the foreign company shall contain the following particulars, for each of
the persons included in such list, namely:
(1) personal name and surname in full;
(2) any former name or names and surname or surnames in full;
(3) father’s name or mother’s name or spouse’s name;
(4) date of birth;
(5) residential address;
(6) nationality;

(7) if the present nationality is not the nationality of origin, his

nationality of origin;
(8) passport Number, date of issue and country of issue; (ifva person
holds more than one passport then details of all passports to be
given)
(9) income-tax permanent account number (PAN), if applicable;
(10) occupation, if any;
(11) whether directorship in any other Indian company, (Director
Identification Number (DIN), Name and Corporate Identity
Number (CIN) of the company in case of holding directorship);
(12) other directorship or directorships held by him;
(13) Membership Number (for Secretary only); and
(14) e-mail ID.
(d) the name and address or the names and addresses of one or more
persons resident in India authorised to accept on behalf of the
company service of process and any notices or other documents
required to be served on the company;
(e) the full address of the office of the company in India which is deemed
to be its principal place of business in India;
(f) particulars of opening and closing of a place of business in India on
earlier occasion or occasions;
(g) declaration that none of the directors of the company or the
authorised representative in India has ever been convicted or
debarred from formation of companies and management in India or
abroad; and
(h) any other information as may be prescribed.

2014, any document which any foreign company is required to deliver to the
Registrar shall be delivered to the Registrar having jurisdiction over New
Delhi.

3. Preparation and filing of financial statements by a foreign company:

According to section 381 of the Companies Act, 2013:
(i) Every foreign company shall, in every calendar year,—
(a) make out a balance sheet and profit and loss account in such
form, containing such particulars and including or having
attached or annexed thereto such documents as may be
prescribed, and
Rules, 2014, every foreign company shall prepare financial statement
of its Indian business operations in accordance with Schedule III or as
near thereto as possible for each financial year including:
(1) documents that are required to be annexed should be in

accordance with Chapter IX i.e. Accounts of Companies.
(2) The documents relating to copies of latest consolidated financial
statements of the parent foreign company, as submitted by it to
the prescribed authority in the country of its incorporation under
the applicable laws there.
(ii) The Central Government is empowered to direct that, in the case of
any foreign company or class of foreign companies, the requirements
of clause (a) of section 381(1) shall not apply, or shall apply subject to
such exceptions and modifications as may be specified in notification
in that behalf.
(iii) If any of the specified documents are not in the English language, a
certified translation thereof in the English language shall be annexed.
[Section 381 (2)]
(iv) Every foreign company shall send to the Registrar along with the
documents required to be delivered to him, a copy of a list in the
prescribed form, of all places of business established by the company

in India as at the date with reference to which the balance sheet

referred to in section 381(1) is made.
v
Rules, 2014, every foreign company shall file with the Registrar, along
with the financial statement, in Form FC-3 with such fee as provided
under Companies (Registration Offices and Fees) Rules, 2014 a list of
all the places of business established by the foreign company in India
as on the date of balance sheet.
Rules, 2014, if any foreign company ceases to have a place of business
in India, it shall forthwith give notice of the fact to the Registrar, and
as from the date on which notice is so given, the obligation of the
company to deliver any document to the Registrar shall cease, if it
does not have other place of business in India.
(v) According to the Companies (Registration of Foreign Companies)
Rules, 2014,
(a) Further, every foreign company shall, along with the financial
statement required to be filed with the Registrar, attach thereto
the following documents; namely:-
The above statements shall include such other particulars as
are prescribed in the Companies (Registration of Foreign
Companies) Rules, 2014.
(b) All these documents shall be delivered to the Registrar within a
period of 6 months of the close of the financial year of the
foreign company to which the documents relate.
4. According to section 2(42) of the Companies Act, 2013, “Foreign
company” means any company or body corporate incorporated outside
India which-



2014, “electronic mode” means carrying out electronically based, whether
main server is installed in India or not, including, but not limited to-
(a) business to business and business to consumer transactions, data

interchange and other digital supply transactions;
(b) offering to accept deposits or inviting deposits or accepting deposits
or subscriptions in securities, in India or from citizens of India;
(c) financial settlements, web-based marketing, advisory and transactional
services, database services and products, supply chain management;
(d) online services such as telemarketing, telecommuting, telemedicine,

education and information research; and
(e) all related data communication services,
Whether conducted by e-mail, mobile devices, social media, cloud computing,

document management, voice or data transmission or otherwise.
(i) In the given situation, Red Stone Limited is registered in Singapore.
However, it does not have a place of business in India whether by itself
or through an agent, physically or through electronic mode; and does
not conduct any business activity in India in any other manner. Mere
holding of board meetings and executing business decisions in India
cannot be termed as conducting business activity in India. Hence, M/s
Red Stone Limited is not a foreign company as per the Companies Act,
2013.
(ii) In the given situation, Xen Limited Liability Company is registered in
Dubai and has installed its main server in Dubai for maintaining office
automation software by Cloud Computing for its client in India. Thus, it
can be said that M/s Xen Limited Liability Company has a place of
business in India through electronic mode and is conducting business

activity in India. Hence, Xen Limited Liability Company is a foreign

company as per the Companies Act, 2013.
5. As per section 389 of the Companies Act, 2013, no person shall v issue,
circulate or distribute in India any prospectus offering for subscription in
securities of a company incorporated or to be incorporated outside India,
whether the company has or has not established, or when formed will or will
not establish, a place of business in India, unless before the issue,
circulation or distribution of the prospectus in India, a copy thereof certified
by the chairperson of the company and two other directors of the company
as having been approved by resolution of the managing body has been
delivered for registration to the Registrar and the prospectus states on the
face of it that a copy has been so delivered, and there is endorsed on or
attached to the copy, any consent to the issue of the prospectus required by
section 388 and such documents as may be prescribed under Rule 11 of the
Companies (Incorporated outside India) Rules, 2014.
Accordingly, the Abroad Ltd. a foreign company shall proceed with the issue
of prospectus in compliance with the above stated provisions of section 379
of the Act.
6. Every foreign company shall, within 30 days of the establishment of its place
of business in India, deliver the documents to the Registrar as per Section
380 of the Companies Act, 2013. Further, if the original instruments/
documents are not in the English language, a certified translation in the
English language is required for the same and submitted to Registrar.
7. Section 380 (3) provides that where any alteration is made or occurs in the
documents delivered to the Registrar under section 380, the foreign
company shall, within 30 days of such alteration, deliver to the Registrar for
registration, a return containing the particulars of the alteration in the
prescribed form. The Companies (Registration of Foreign Companies) Rules,
2014, has prescribed that the return containing the particulars of the
alteration shall be filed in form FC-2 along with prescribed fees.
Accordingly, Swift Pharmaceuticals is required to submit the full address of
the new registered or principal office of the company by March 30, 2023.

ii
material.

publisher.
Basic draft of this publication was prepared by CA. Vandana D Nagpal
ISBN No. : 978-81-962488-9-5

Printed by :

iii
CONTENTS
MODULE 1
MODULE 2
MODULE 3
CHAPTER-12: The Limited Liability Act, 2008

iv
CHAPTER 12: THE LIMITED LIABILTY PARTNERSHIP ACT, 2008
Learning outcomes.... ............................................................................................................ 12.1

Chapter Overview.. ................................................................................................................ 12.2
1. Introduction.......... ..................................................................................................... 12.2
2. Limited Liability Partnership- Meaning and Concept .................................... 12.4
3. Incorporation of LLP ............................................................................................. 12.15
4. Partners and their relations ................................................................................ 12.20
5. Financial Disclosures ............................................................................................ 12.26
6. Assignment and Transfer of Partnership Rights ........................................... 12.31
7. Conversion into LLP .............................................................................................. 12.31
8. Compromise, Arrangement or Reconstruction of Limited Liability
Partnerships ............................................................................................................ 12.33
9. Winding Up and Dissolution ............................................................................. 12.37
10. Miscellaneous ......................................................................................................... 12.38
11. Differences with Other Forms of Organisation……. ...................................... 12.39
Summary ............................................................................................................................... 12.43
Test Your Knowledge ......................................................................................................... 12.45
CHAPTER 1: THE GENERAL CLAUSES ACT, 1897

1. Introduction ................................................................................................................. 1.2
2. Object, purpose and importance of the General Clauses Act........................ 1.3
3. Application of the General Clauses Act ............................................................... 1.4
4. Some basic understandings of legislation ......................................................... 1.6
5. Preliminary ................................................................................................................. 1.10
6. Definitions .................................................................................................................. 1.10

v
7. General rules of construction ............................................................................... 1.22

8. Power and functionaries......................................................................................... 1.27
9. Provision as to orders, rules etc. made under enactments .......................... 1.29
10. Miscellaneous ............................................................................................................ 1.32
Summary .................................................................................................................................. 1.35
CHAPTER 2: INTERPRETATION OF STATUTES

1. Introduction ................................................................................................................. 2.2
2. Why do we need interpretation/construction? .................................................. 2.7
3. Rules of interpretation/construction .................................................................... 2.9
4. Internal aids to interpretation/construction ..................................................... 2.25
5. External aids to interpretation/construction .................................................... 2.34
6. Rules of interpretations/construction of deeds and documents ................ 2.37
Summary .................................................................................................................................. 2.38
CHAPTER 3: THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999

1. Introduction ................................................................................................................ 3.2
2. Preamble, Extent, Application and Commencement of FEMA, 1999 ........... 3.5
3. Definitions .................................................................................................................... 3.5
4. Residential status under FEMA, 1999 .................................................................. 3.9

5. Regulation and Management of Foreign Exchange ....................................... 3.15
Summary .................................................................................................................................. 3.33

CHAPTER a
12
THE LIMITED LIABILITY

PARTNERSHIP ACT,
2008
LEARNING OUTCOMES

 Comprehend the meaning of the term ‘Limited Liability
Partnership’, its need, scope and advantages
 Know about the Incorporation of LLP, Partners and their
relations, financial disclosures, conversions, winding up and
dissolution.
 Differentiate between ‘Limited Liability Partnership’ and
other forms of organization.

CHAPTER OVERVIEW
LLP
Partnership Financial Winding

Introduction Incorporation and Their up and
Disclosures Differences
Relations dissolution
with other
form of
organisation
Meaning
and Advantages Characteristics
concept
1. INTRODUCTION
The Ministry of Law and Justice on 9 th January 2009 notified the Limited Liability
Partnership Act, 2008.
The LLP Act,
The Parliament passed the Limited Liability
2008 is
Partnership Bill on 12 th December, 2008 and the
applicable to
President of India has assented the Bill on 7 th
the whole of
January, 2009 and called as the Limited Liability
India
Partnership Act, 2008 (the “LLP Act, 2008”).
This Act has been enacted to make provisions for the formation and regulation of
Limited Liability Partnerships and for matters connected there with or incidental
thereto.
The LLP Act, 2008 has 81 sections (of which section 81 is now omitted with effect
from 1st April 2022) and 4 schedules.
The First Schedule deals with mutual rights and duties of partners and limited
liability partnership and its partners where there is absence of a formal agreement
amongst them.
The Second Schedule deals with conversion of a firm into LLP.

INTERPRETATION OF STATUTES 12.3 a
The Third Schedule deals with conversion of a private company into LLP.
The Fourth Schedule deals with conversion of unlisted public company into LLP.
The Ministry of Corporate Affairs and the Registrar of Companies (ROC) are
entrusted with the task of administrating the LLP Act, 2008. The Central
Government has the authority to frame the Rules with regard to the LLP Act, 2008,
and can amend them by notifications in the Official Gazette, from time to time.
It is also to be noted that the Indian Partnership Act, 1932 is not applicable to
LLPs.
Note
The Limited Liability Partnership Act, 2008 has been recently amended through
the Limited Liability Partnership (Amendment) Act, 2021 dated 13 th August, 2021.
Need of new form of Limited Liability Partnership

The lawmakers envisaged the need for bringing out a new legislation for creation
of the Limited Liability Partnership to meet with the contemporary growth of the
Indian economy. A need has been felt for a new corporate form that would
provide an alternative to the traditional partnership with
unlimited personal liability on the one hand and the
statute-based governance structure of the limited
liability company on the other hand. In order to enable
professional expertise and entrepreneurial initiative and to combine and operate
in flexible, innovative and efficient manner, the LLP Act, 2008 was enacted.
Thus, LLP as a form of business organization is an alternative corporate business
vehicle. It provides the benefits of limited liability but allows its members the
flexibility of organizing their internal structure as a partnership based on a
mutually arrived agreement. The LLP form enables entrepreneurs, professionals
and enterprises providing services of any kind or engaged in scientific and
technical disciplines, to form commercially efficient vehicles suited to their
requirements. Owing to flexibility in its structure and operation, the LLP is a
suitable vehicle for small enterprises and for investment by venture capital.

2. LIMITED LIABILITY PARTNERSHIP-

MEANING AND CONCEPT
Meaning: LLP is a new form of legal business entity with
limited liability. It is an alternative corporate business
vehicle that not only gives the benefits of limited liability at
low compliance cost but allows its partners the flexibility of
organising their internal structure as a traditional
partnership. The LLP is a separate legal entity and, while the
LLP itself will be liable to the full extent of its assets, the liability of the partners
will be limited to the extent of their capital contribution.
LLP as a separate legal entity and business organisation is an alternative
corporate business form that gives the benefits of limited liability of a company
and the flexibility of a partnership.
Since LLP contains elements of both ‘a corporate structure’ as well as ‘a
partnership firm structure’ LLP is called a hybrid between a company and a
partnership.
New form of legal

business entity with
limited liability
Liability of Alternative
partners will be corporate
limited to the business vehicle
extent of their
capital
contribution
LLP
LLP itself will be Allows the
liable for the full partners the
extent of its flexibility of
assets organising their
internal structure

DEFINITIONS
1. Address [(Section 2(1)(a)]: “Address” in relation to a partner
of a limited liability partnership, means—
(i) if an individual, his usual residential address; and

(ii) if a body corporate, the address of its registered office.
2. Body Corporate [(Section 2(1)(d)]: It means a company as defined in
clause (20) of section 2 of the Companies Act, 2013 and includes—
(i) a LLP registered under this Act;
(ii) a LLP incorporated outside India; and
(iii) a company incorporated outside India,
but does not include—
(i) a corporation sole;
(ii) a co-operative society registered under any law for the time being in
force; and
(iii) any other body corporate (not being a company as defined in clause
(20) of section 2 of the Companies Act, 2013 or a limited liability
partnership as defined in this Act), which the Central Government may,
by notification in the Official Gazette, specify in this behalf.
Does not include –

Means corporation sole; co-
A company & includes - LLP, operative society & any other
foreign LLP, foreign company, body corporate notified by
Central Government.
3. Business [Section 2(1)(e)]: “Business” includes every trade, profession,

service and occupation except any activity which the Central Government
may, by notification, exclude.

4. Chartered Accountant [Section 2(1)(f)]: means a Chartered Accountant as

defined in clause (b) of sub-section (1) of section 2 of the Chartered
Accountants Act, 1949 and who has obtained a certificate of practice under
sub-section (1) of section 6 of that Act.
5. Designated Partner [Section 2(1)(j)]: “Designated partner” means any
partner designated as such pursuant to section 7.
6. Entity [Section 2(1)(k)]: ‘’Entity” means any body corporate and includes,
for the purposes of sections 18, 46, 47, 48, 49, 50, 52 and 53, a firm setup
under the Indian Partnership Act, 1932.
7. Financial Year [Section 2(1)(l)]: “Financial year”, in relation to a LLP, means

the period from the 1st day of April of a year to the 31st day of March of
the following year.
However, in the case of a LLP incorporated after the 30th day of September
of a year, the financial year may end on the 31st day of March of the year
next following that year.
Example 1: If a LLP has been incorporated on 15th October, 2022, then its
financial year may be from 15th October, 2022 to 31st March, 2024.
However, the LLP can always maintain its first accounts from 15 th October,
2022 to 31 st March, 2023 i.e. for a period of less than 12 months. The period
for which the first accounts of LLP are prepared shall not exceed 18 months.
The Income Tax department has prescribed uniform financial year from 1st
April to 31st March of next year. In keeping with the Income tax law, the
financial year for LLP should always be from 1st April to 31st March each
year.
8. Foreign LLP [section 2(1)(m)]: It means a LLP formed, incorporated or
registered outside India which establishes a place of business within India.
9. Limited liability partnership [Section 2(1)(n)]: Limited Liability
Partnership means a partnership formed and registered under this Act.
10. Limited Liability partnership agreement [Section 2(1)(o)]:
It means any written agreement between the partners of the
LLP or between the LLP and its partners which determines the
mutual rights and duties of the partners and their rights and
duties in relation to that LLP.

The First Schedule shall be applicable for all matters not covered by the
Agreement w.r.t the mutual rights and duties of the partners and their
rights and duties in relation to the LLP.
11. Name [Section 2(1)(p)]: in relation to a partner of a limited liability

partnership, means—
(i) if an individual, his forename, middle name and surname; and
(ii) if a body corporate, its registered name;
12. Partner [Section 2(1)(q)]: Partner, in relation to a LLP, means any person
who becomes a partner in the LLP in accordance with the LLP agreement.
13. Regional Director [Section 2(1)(ra)]: means a person appointed as such

by the Central Government for the purpose of this Act or the Companies Act
2013, as the case may be.
14. Registrar [Section 2(1)(s)]: means a person appointed by Central

Government as Registrar, an Additional Registrar, a Joint Registrar, a Deputy
Registrar or an Assistant Registrar, for the purpose of this Act or the
Companies Act, 2013, as the case may be.
15. Small limited liability partnership [Section 2(1)(ta)]: It means a limited

liability partnership—
(i) the contribution of which, does not exceed twenty-five lakh rupees or
such higher amount, not exceeding five crore rupees, as may be
prescribed; and
(ii) the turnover of which, as per the Statement of Accounts and Solvency
for the immediately preceding financial year, does not exceed forty
lakh rupees or such higher amount, not exceeding fifty crore rupees,
as may be prescribed; or
(iii) which meets such other requirements as may be prescribed, and fulfils
such terms and conditions as may be prescribed;

Contribution Up to ` 25L, &
Turnover for immediately Up to ` 40 L, or

preceding F.Y
Fulfills prescribed terms and
conditions
16. Tribunal [Section 2(1)(u)]: means the National Company Law Tribunal
constituted u/s 408 of Companies Act 2013.
Note:
Applicability of the Companies Act, 2013: Words and expressions used and not
defined in this Act but defined in the Companies Act, 2013 shall have the
meanings respectively assigned to them in that Act. [Section 2(2)]
Non-applicability of the Indian Partnership Act, 1932: Save as otherwise
provided, the provisions of the Indian Partnership Act, 1932 shall not apply to a
LLP. [Section 4]
CHARACTERISTIC OF LLP
Body Corporate
Perpetual Succession
Separate legal entity
Mutual Agency
LLP Agreement
Artificial Legal person
Common Seal
Limited liability
Management of business
Minimum & maximum number of members
Business for profit only
Investigation
Compromise or Arrangement
Conversion into LLP
E-filing of documents
Foreign LLPs

1. LLP is a body corporate: Section 2(1)(d) of the LLP Act, 2008 provides that
a LLP is a body corporate formed and incorporated under this Act. Section 3
of the LLP Act provides that LLP is a legal entity separate from that of its
partners and shall have perpetual succession. Therefore, any change in the
partners of a LLP shall not affect the existence, rights or liabilities of the LLP.
2. Perpetual Succession: The LLP can continue its existence irrespective of
changes in partners. Death, insanity, retirement or insolvency of partners
has no impact on the existence of LLP. It is capable of entering into
contracts and holding property in its own name.
3. Separate Legal Entity: Section 3 of LLP Act provides that a LLP is a body
corporate formed and incorporated under this Act and is a legal entity
separate from that of its partners. The LLP is liable to the full extent of its
assets but liability of the partners is limited to their agreed contribution in
the LLP. In other words, creditors of LLP shall be the creditors of LLP alone.
4. Mutual Agency: No partner is liable on account of the independent or un-
authorized actions of other partners, thus individual partners are shielded
from joint liability created by another partner’s wrongful business decisions
or misconduct. In other words, all partners will be the agents of the LLP
alone. No one partner can bind the other partner by his acts.
5. LLP Agreement: Mutual rights and duties of the partners within a LLP are
governed by an agreement between the partners. The LLP Act, 2008
provides flexibility to partner to devise the agreement as per their choice.
In the absence of any such agreement, the mutual rights and duties shall be
governed by Schedule I of the LLP Act, 2008.
6. Artificial Legal Person: A LLP is an artificial legal person because it is
created by a legal process and is clothed with all rights of an individual. It
can do everything which any natural person can do, except of course that, it
cannot be sent to jail, cannot take an oath, cannot marry or get divorce nor
can it practice a learned profession like CA or Medicine. A LLP is invisible,
intangible, immortal (it can be dissolved by law alone) but not fictitious
because it really exists.
7. Common Seal: A LLP being an artificial person can act through its partners
and designated partners. LLP may have a common seal, if it decides to have
one [Section 14(c)]. Thus, it is not mandatory for a LLP to have a common

seal. It shall remain under the custody of some responsible official and it
shall be affixed in the presence of at least 2 designated partners of the LLP.
8. Limited Liability: Every partner of a LLP is, for the purpose of the business
of LLP, the agent of the LLP, but not of other partners (Section 26). The
liability of the partners will be limited to their agreed contribution in the
LLP. Such contribution may be of tangible or intangible nature or both.
Example 2: The professionals like Engineering consultants, Legal Advisors
and Accounting Professional are afraid of entering into business due to
unlimited liability. Hence, the LLP Act provides an avenue for these
professionals to enter into Limited Liability Partnership firms which restrict
their liability to the agreed amount. This has encouraged Professionals to
form LLP.
9. Management of Business: The partners in the LLP are entitled to manage
the business of LLP. But only the designated partners are responsible for
legal compliances.
10. Minimum and Maximum number of Partners: Every LLP shall have at
least two partners and shall also have at least 2 individuals as designated
partners, of whom at least one shall be resident in India. There is no
maximum limit on the partners in LLP.
11. Business for Profit Only: The essential requirement for
forming LLP is carrying on a lawful business with a view to
earn profit. Thus, LLP cannot be formed for charitable or
non-economic purpose.
12. Investigation: The Central Government shall have powers to investigate the
affairs of an LLP by appointment of competent authority for the purpose.
13. Compromise or Arrangement: Any compromise or agreements including
merger and amalgamation of LLPs shall be in accordance with the
provisions of the LLP Act, 2008.
14. Conversion into LLP: A firm, private company or an unlisted public
company would be allowed to be converted into LLP in accordance with the
provisions of LLP Act, 2008.
15. E-Filling of Documents: Every form or application of document required to
be filed or delivered under the act and rules made thereunder, shall be filed

in computer readable electronic form on its website www.mca.gov.in and

authenticated by a partner or designated partner of LLP by the use of
electronic or digital signature.
16. Foreign LLPs: Section 2(1)(m) defines foreign limited liability partnership
“as a limited liability partnership formed, incorporated, or registered outside
India which established a place of business within India”. Foreign LLP can
become a partner in an Indian LLP.
ADVANTAGES OF LLP FORM
LLP form is a form of business model which:
1. Is organised and operates on the basis of an agreement.
2. Provides flexibility without imposing detailed legal and procedural
requirements.
3. Easy to form.
4. All partners enjoy limited liability.
5. Easy to dissolve.
Partners [Section 5]
Any individual or body corporate may be a partner in a LLP.
However, an individual shall not be capable of becoming a partner
of a LLP, if—
(a) he has been found to be of unsound mind by a Court of
competent jurisdiction and the finding is in force;
(b) he is an undischarged insolvent; or
(c) he has applied to be adjudicated as an insolvent and his application is
pending.
The following persons can become partner in LLP:

(i) Individuals (Resident Indians including Non Resident Indians &
Overseas Citizen of India as well as foreign nationals)*
(ii) Limited Liability Partnerships
(iii) Companies (including foreign companies)*

(iv) Foreign Limited Liability Partnerships*

(v) Limited Liability Partnerships incorporated outside India
(vi) Foreign Companies.
Co-operative society and corporation sole cannot become partner in a LLP.

*In case of introduction of capital / acquisition of existing stake in LLP by
Persons resident outside India (other than NRIs & OCIs investing on a non-
repatriation basis), the Foreign Direct Investment (FDI) compliances shall
have to be undertaken by the LLP in which such investment is made.
Minimum number of Partners [Section 6]

(i) Every LLP shall have at least two partners.
(ii) If at any time the number of partners of a LLP is reduced
below two and the LLP carries on business for more than six
months while the number is so reduced, the person, who is
the only partner of the LLP during the time that it so carries on business
after those six months and has the knowledge of the fact that it is carrying
on business with him alone, shall be liable personally for the obligations of
the LLP incurred during that period.
Designated Partners [Section 7]
(1) Every LLP shall have at least two designated partners who are individuals
and at least one of them shall be a resident in India.
Provided, if in LLP, all the partners are bodies corporate or in which one or
more partners are individuals and bodies corporate, at least two individuals
who are partners of such LLP or nominees of such bodies corporate shall act
as designated partners.
Example 3: A LLP has three partners, one individual i.e. Mr. X and two
bodies corporates viz. M/s XYZ Ltd and M/s ABC Ltd. In this case Mr. X and
one nominee of any body’s corporate shall be designated partners.
Example 4: A LLP by the name SMY LLP has three partners namely 1. SI
Limited, 2. MIS Limited, 3. YI Private Limited. As there is no individual as
partner in LLP, nominees of any two said body corporates shall act as
designated partners.

Resident in India: For the purposes of this section, the term “resident in
India” means a person who has stayed in India for a period of not less than
one hundred twenty days during the financial year.
Example 5: There is a LLP by the name Indian Helicopters LLP having 5

partners namely Mr. A (Non Resident), Mr. B (Non Resident) Ms. C (resident),
Ms. D (resident) and Ms. E (resident). In this case, at least 2 should be
named as Designated Partner out of which 1 should be resident. Hence, if
Mr. A and Mr. B are designated then it will not serve the purpose. One of
the designated partners should be there out of Ms. C, Ms. D and Ms. E.
2. (i) If the incorporation document
(a) specifies who are to be designated partners, such persons shall

be designated partners on incorporation; or
(b) states that each of the partners from time to time of LLP is to be
designated partners, every partner shall be a designated
partners;
(ii) any partner may become a designated partner by and in accordance

with the LLP Agreement and a partner may cease to be a designated
partners in accordance with LLP agreement.
3. An individual shall not become a designated partner in any LLP unless he

has given his prior consent to act as such to the LLP in such form and
manner as may be prescribed.
4. Every LLP shall file with the Registrar the particulars of every individual who
has given his consent to act as designated partners in such form and
manner as may be prescribed within 30 days of his appointment.
5. An individual eligible to be a designated partner shall satisfy such

conditions and requirements as may be prescribed.
6. Every designated partner of the LLP shall obtain a Designated Partner

Identification Number (DPIN) from the Central Government and the
provisions of sections 153 to 159 of the Companies Act, 2013 shall apply
mutatis mutandis for the said purpose.

Liabilities of Designated Partners [Section 8]

Unless expressly provided otherwise in this Act, a designated partner shall be—
(a) responsible for the doing of all acts, matters and things as are required to
be done by the limited liability partnership in respect of
compliance of the provisions of this Act including filing of
any document, return, statement and the like report
pursuant to the provisions of this Act and as may be
specified in the limited liability partnership agreement; and
(b) liable to all penalties imposed on the limited liability partnership for any
contravention of those provisions.
Changes in Designated Partners [Section 9]
A limited liability partnership may appoint a designated partner within 30 days of
a vacancy arising for any reason and provisions of sub-section (4) and sub-section
(5) of section 7 shall apply in respect of such new designated partner, provided
that if no designated partner is appointed, or if at any time there is only one
designated partner, each partner shall be deemed to be a designated partner.
Punishment for contravention of sections 7 and 9 [Section 10]
1. If the LLP contravenes the provisions of sub-section (1) of section 7
(meaning that the number of designated partners are less than two or none
of the designated partner is a resident in India), the LLP and its every
partner shall be liable to a penalty of `10,000 and in case of continuing
contravention, with further penalty of `100 per day subject to maximum
`1,00,000 for LLP and `50,000 for every partner of such LLP.
2. If the LLP contravenes the provisions of sub-section (4) of section 7 (failure

to file the consent of appointment of designated partner within 30 days of
his appointment), the LLP and its every designated partner shall be liable to
a penalty of `5,000 and in case of continuing contravention, with further
penalty of `100 per day subject to maximum `50,000 for LLP and `25,000
for every designated partner.
3. If the LLP contravenes the provisions of sub-section (5) of section 7 or
section 9, the LLP and its every partner shall be liable to a penalty of
`10,000 and in case of continuing contravention, with further penalty of

`100 per day subject to maximum `1,00,000 for LLP and `50,000 for every
partner of such LLP.
3. INCORPORATION OF LLP
Incorporation Document [Section 11]
The most important document needed for registration is the incorporation
document.
(1) For a LLP to be incorporated:
(a) two or more persons associated for carrying on a lawful business with
a view to earn profit shall subscribe their names to an incorporation
document;
(b) the incorporation document shall be filed in such manner and with
such fees, as may be prescribed with the Registrar of the State in
which the registered office of the LLP is to be situated (Incorporation
documents are now processed electronically by Registrar, Central
Registration Centre since 2 nd October 2018); and
(c) Statement to be filed:
➢ there shall be filed along with the incorporation document, a
statement in the prescribed form:
o made by either an advocate, or a Company Secretary or a
Chartered Accountant or a Cost Accountant, who is
engaged in the formation of the LLP and
o by any one who subscribed his name to the incorporation
document,
o that all the requirements of this Act and the rules made
thereunder have been complied with,
o in respect of incorporation and matters precedent and
incidental thereto.

(2) The incorporation document shall—

(a) be in a form as may be prescribed;
(b) state the name of the LLP;
(c) state the proposed business of the LLP;

(d) state the address of the registered office of the LLP;
(e) state the name and address of each of the persons who are to be
partners of the LLP on incorporation;
(f) state the name and address of the persons who are to be designated
partners of the LLP on incorporation;
(g) contain such other information concerning the proposed LLP as may
be prescribed.
(3) If a person makes a statement as discussed above which he—
(a) knows to be false; or
(b) does not believe to be true,
shall be punishable (Penalty for false declaration)
➢ with imprisonment for a term which may extend to 2 years and

➢ with fine which shall not be less than `10,000 but which may
extend to `5 Lakhs.
Incorporation by Registration [Section 12]

(1) When the requirements imposed by clauses (b) and (c) of sub-section (1) of
section 11 have been complied with, the Registrar shall retain the
incorporation document and, unless the requirement imposed by clause (a)
of that sub-section has not been complied with, he shall, within a period of
14 days—
(a) register the incorporation document; and
(b) give a certificate that the LLP is incorporated by the name specified
therein.

(2) The Registrar may accept the statement delivered under clause (c) of sub-
section (1) of section 11 as sufficient evidence that the requirement
imposed by clause (a) of that sub-section has been complied with.
(3) The certificate issued under clause (b) of sub-section (1) shall be signed by
the Registrar and authenticated by his official seal.
(4) The certificate shall be conclusive evidence that the LLP is incorporated by
the name specified therein.
Registered Office of LLP and Change therein [Section 13]
(1) Every LLP shall have a registered office to which all
communications and notices may be addressed and where
they shall be received.
(2) A document may be served on a LLP or a partner or
designated partner thereof by sending it by post under a
certificate of posting or by registered post or by any other manner, as may be
prescribed, at the registered office and any other address specifically declared
by the LLP for the purpose in such form and manner as may be prescribed.
(3) A LLP may change the place of its registered office and file the notice of
such change with the Registrar in such form and manner and subject to
such conditions as may be prescribed and any such change shall take effect
only upon such filing.
(4) If the LLP contravenes any provisions of this section, the LLP and its every
partner shall be punishable with penalty of ` 500 per day subject to
maximum ` 50,000.
Effect of registration [Section 14]
On Registration, LLP shall by its name, be capable of -
i. Suing and being sued;
ii. Acquiring, owning, holding and developing or disposing of property,
whether movable or immovable, tangible or intangible;
iii. Having a common seal, if it decides to have one; and
iv. Doing and suffering other acts and things as bodies corporate may lawfully
do and suffer.

Name [Section 15]

(1) Every limited liability partnership shall have either
the words “limited liability partnership” or the
acronym “LLP” as the last words of its name.
(2) No LLP shall be registered by a name which, in the
opinion of the Central Government is—
(a) undesirable; or
(b) identical or too nearly resembles to that of any other LLP or a

company or a registered trademark of any other person under the
Trade Marks Act, 1999.
Reservation of name [Section 16]

(1) A person may apply in such form and manner and accompanied by such fee
as may be prescribed to the Registrar for the reservation of a name set out
in the application as—
(a) the name of a proposed LLP; or
(b) the name to which a LLP proposes to change its name.
(2) Upon receipt of an application under sub-section (1) and on payment of the
prescribed fee, the Registrar may, if he is satisfied, subject to the rules
prescribed by the Central Government in the matter, that the name to be
reserved is not one which may be rejected on any ground referred to in
sub-section (2) of section 15, reserve the name for a period of 3 months
from the date of intimation by the Registrar.
Rectification of name of LLP [Section 17]
1. Notwithstanding anything contained in sections 15 and 16, if through
inadvertence, or otherwise, the LLP, on its first registration or on its
registration by new name, is registered by a name which is identical with or
too nearly resembles to-
(a) that of any other LLP or a company; or
(b) a registered trade mark of a proprietor under the Trade Marks Act,
1999

as likely to be mistaken, then on an application of such LLP or proprietor

referred to in clauses (a) and (b) respectively or a company, the Central
Government may direct such LLP to change its name or new name within a
period of 3 months from the date of issue of such direction,
Provided that an application of the proprietor of the registered trade marks
shall be maintainable within a period of 3 years from the date of
incorporation or registration or change of name of the LLP under this Act.
2. Where an LLP changes its name or obtains new name, it shall within a
period of 15 days from the date of such change, give notice of the change
to Registrar along with the order of the Central Government, who shall carry
out necessary changes in the certificate of incorporation and within 30 days
of such change in the certificate of incorporation, such LLP shall change its
name in the LLP agreement.
3. If the LLP is in default in complying with any direction given under sub-
section (1), the Central Government shall allot a new name to the LLP and
the Registrar shall enter the new name in the register of LLP in place of the
old name and issue a fresh certificate of incorporation with new name.
Provided that nothing contained in this sub-section shall prevent a LLP from
subsequently changing its name.
STEPS TO INCORPORATE LLP
Reservation of name of LLP: Applicant has to file e-Form

Step1 RUNLLP, for ascertaining availability and reservation of the name
of a LLP.
File e- Form FiLLiP for incorporating a new LLP: contains the

Step2 details of proposed LLP, details of partners/designated partners
and their consent.
Execution of LLP Agreement is mandatory as per Section 23 of
Step3 Act. It will be filed in e-Form 3 within 30 days of incorporation
of LLP.
It will be filed in e-Form 3 within 30 days of incorporation of

LLP.
4. PARTNERS AND THEIR RELATIONS

Eligibility to be partners [Section 22]
On the incorporation of a LLP, the persons who subscribed their names to the
incorporation document shall be its partners and any other person may become a
partner of the LLP by and in accordance with the LLP agreement.
Relationship of partners [Section 23]
(1) Save as otherwise provided by this Act, the mutual rights
and duties of the partners of a LLP, and the mutual rights
and duties of a LLP and its partners, shall be governed by
the LLP agreement between the partners, or between the
LLP and its partners.
(2) The LLP agreement and any changes, if any, made therein shall be filed with
the Registrar in such form, manner and accompanied by such fees as may
be prescribed.
(3) An agreement in writing made before the incorporation of a LLP between

the persons who subscribe their names to the incorporation document may
impose obligations on the LLP, provided such agreement is ratified by all
the partners after the incorporation of the LLP.
(4) In the absence of agreement as to any matter, the mutual rights and duties
of the partners and the mutual rights and duties of the LLP and the partners
shall be determined by the provisions relating to that matter as are set-out
in the First Schedule.
Cessation of partnership interest [Section 24]
(1) A person may cease to be a partner of a LLP in accordance with an
agreement with the other partners or, in the absence of agreement with the
other partners as to cessation of being a partner, by giving a notice in
writing of not less than 30 days to the other partners of his intention to
resign as partner.
(2) A person shall cease to be a partner of a LLP—

(a) on his death or dissolution of the LLP; or

(b) if he is declared to be of unsound mind by a competent court; or

(c) if he has applied to be adjudged as an insolvent or declared as an
insolvent.
(3) Where a person has ceased to be a partner of a LLP (hereinafter referred to
as “former partner”), the former partner is to be regarded (in relation to any
person dealing with the LLP) as still being a partner of the LLP unless—
(a) the person has notice that the former partner has ceased to be a
partner of the LLP; or
(b) notice that the former partner has ceased to be a partner of the LLP
has been delivered to the Registrar.
(4) The cessation of a partner from the LLP does not by itself discharge the
partner from any obligation to the LLP or to the other partners or to any
other person which he incurred while being a partner.
(5) Where a partner of a LLP ceases to be a partner, unless otherwise provided
in the LLP agreement, the former partner or a person entitled to his share in
consequence of the death or insolvency of the former partner, shall be
entitled to receive from the LLP—
(a) an amount equal to the capital contribution of the former partner
actually made to the LLP; and
(b) his right to share in the accumulated profits of the LLP, after the
deduction of accumulated losses of the LLP, determined as at the date
the former partner ceased to be a partner.
(6) A former partner or a person entitled to his share in consequence of the
death or insolvency of the former partner shall not have any right to
interfere in the management of the LLP.
Registration of changes in partners [Section 25]
(1) Every partner shall inform the LLP of any change in his name or address
within a period of 15 days of such change.

(2) A LLP shall—

(a) where a person becomes or ceases to be a partner, file a notice with
the Registrar within 30 days from the date he becomes or ceases to be
a partner; and
(b) where there is any change in the name or address of a partner, file a
notice with the Registrar within 30 days of such change.
(3) A notice filed with the Registrar under sub-section (2)—
(a) shall be in such form and accompanied by such fees as may be
prescribed;
(b) shall be signed by the designated partner of the LLP and
authenticated in a manner as may be prescribed; and
(c) if it relates to an incoming partner, shall contain a statement by such
partner that he consents to becoming a partner, signed by him and
authenticated in the manner as may be prescribed.
(4) If the LLP contravenes the provisions of sub-section (2), the LLP and every
designated partner of the LLP shall be ‘liable to penalty of `10,000.
(5) If any partner contravenes the provisions of sub-section (1), such partner
shall be ‘liable to penalty of `10,000.
(6) Any person who ceases to be a partner of a LLP may himself file with the
Registrar the notice referred to in sub-section (3) if he has reasonable cause
to believe that the LLP may not file the notice with the Registrar and in case
of any such notice filed by a partner, the Registrar shall obtain a
confirmation to this effect from the LLP unless the LLP has also filed such
notice.

However, where no confirmation is given by the LLP within 15 days, the

registrar shall register the notice made by a person ceasing to be a partner
under this section.
EXTENT AND LIMITATION OF LIABILITY OF LLP AND PARTNER
Partner as agent [Section 26]: Every partner of a LLP is, for the purpose of
the business of the LLP, the agent of the LLP, but not of other partners.
Extent of liability of LLP [Section 27]
(1) A LLP is not bound by anything done by a partner in dealing with a person
if—
(a) the partner in fact has no authority to act for the LLP in doing a
particular act; and
(b) the person knows that he has no authority or does not know or
believe him to be a partner of the LLP.
(2) The LLP is liable if a partner of a LLP is liable to any person as a result of a
wrongful act or omission on his part in the course of the business of the LLP
or with its authority.
(3) An obligation of the LLP whether arising in contract or otherwise, shall be

solely the obligation of the LLP.
(4) The liabilities of the LLP shall be met out of the property of the LLP.
Extent of liability of partner [Section 28]
(1) A partner is not personally liable, directly or indirectly for an obligation
referred to in sub-section (3) of section 27 solely by reason of being a
partner of the LLP.
(2) The provisions of sub-section (3) of section 27 and sub-section (1) of this
section shall not affect the personal liability of a partner for his own
wrongful act or omission, but a partner shall not be personally liable for the
wrongful act or omission of any other partner of the LLP.

Holding out [Section 29]

(1) Any person,
• who by words spoken or written or by conduct,
• represents himself, or knowingly permits himself to be represented to
be a partner in a LLP
• is liable to any person
• who has on the faith of any such representation
• given credit to the LLP, whether the person representing himself or
represented to be a partner does or does not know that the
representation has reached the person so giving credit.
However,
• where any credit is received by the LLP as a result of such
representation,
• the LLP shall,
• without prejudice to the liability of the person so representing himself
or represented to be a partner,
• be liable to the extent of credit received by it or any financial benefit
derived thereon.
(2) Where after a partner’s death the business is continued in the same LLP
name, the continued use of that name or of the deceased partner’s name as
a part thereof shall not by itself make his legal representative or his estate
liable for any act of the LLP done after his death.
Unlimited liability in case of fraud [Section 30]
(1) In case of fraud:
• In the event of an act carried out by a LLP, or any of its partners,
• with intent to defraud creditors of the LLP or any other person, or for
any fraudulent purpose,
• the liability of the LLP and partners who acted with intent to defraud
creditors or for any fraudulent purpose

• shall be unlimited for all or any of the debts or other liabilities of the
LLP.
However, in case any such act is carried out by a partner, the LLP is liable to
the same extent as the partner unless it is established by the LLP that such
act was without the knowledge or the authority of the LLP.
(2) Where any business is carried on with such intent or for such purpose as
mentioned in sub-section (1), every person who was knowingly a party to
the carrying on of the business in the manner aforesaid shall be punishable
with
• imprisonment for a term which may extend to five

years and
• with fine which shall not be less than ` 50,000 but
which may extend to ` 5 Lakhs.
(3) Where a LLP or any partner or designated partner or employee of such LLP
has conducted the affairs of the LLP in a fraudulent manner, then without
prejudice to any criminal proceedings which may arise under any law for the
time being in force, the LLP and any such partner or designated partner or
employee shall be liable to pay compensation to any person who has
suffered any loss or damage by reason of such conduct.
However, such LLP shall not be liable if any such partner or designated
partner or employee has acted fraudulently without knowledge of the LLP.
Whistle blowing [Section 31]
(1) The Court or Tribunal may reduce or waive any penalty leviable against any
partner or employee of a LLP, if it is satisfied that—
• such partner or employee of an LLP has provided useful information
during investigation of such LLP; or
• when any information given by any partner or employee (whether or
not during investigation) leads to LLP or any partner or employee of
such LLP being convicted under this Act or any other Act.
(2) No partner or employee of any LLP may be discharged, demoted,
suspended, threatened, harassed or in any other manner discriminated
against the terms and conditions of his LLP or employment merely because

of his providing information or causing information to be provided pursuant

to sub-section (1).
CONTRIBUTIONS
Form of contribution [Section 32]
(1) A contribution of a partner may consist of tangible, movable
or immovable or intangible property or other benefit to the
limited liability partnership, including money, promissory
notes, other agreements to contribute cash or property, and
contracts for services performed or to be performed.
(2) The monetary value of contribution of each partner shall be accounted for
and disclosed in the accounts of the limited liability partnership in the
manner as may be prescribed.
Obligation to contribute [Section 33]
(1) The obligation of a partner to contribute money or other property or other
benefit or to perform services for a limited liability partnership shall be as
per the limited liability partnership agreement.
(2) A creditor of a limited liability partnership, which extends credit or
otherwise acts in reliance on an obligation described in that agreement,
without notice of any compromise between partners, may enforce the
original obligation against such partner.
5. FINANCIAL DISCLOSURES
1. Maintain proper books of account in presribed manner.
2. File Statement of Account and Solvency within 6 months from end

of each F.Y.
3. Statement of Account and Solvency shall be filed with the Registrar
every year in prescribed form and manner and with prescribed fees.
4. Audit of Accounts. Central Government may exempt.

Maintenance of books of account, other records and audit, etc.

[Section 34]
(1) Proper Books of account:
• The LLP shall maintain such proper books of account as may be
prescribed
• relating to its affairs for each year of its existence
• on cash basis or accrual basis and
• according to double entry system of accounting and
• shall maintain the same at its registered office
• for such period as may be prescribed.
(2) Statement of Account and Solvency:
• Every LLP shall,
• within a period of 6 months from the end of each financial year,
• prepare a Statement of Account and Solvency
• for the said financial year as at the last day of the said financial year
• in such form as may be prescribed, and
• such statement shall be signed by the designated partners of the LLP.
(3) Every LLP shall file within the prescribed time, the Statement of Account and
Solvency prepared pursuant to sub-section (2) with the Registrar every year
in such form and manner and accompanied by such fees as may be
prescribed.
(4) The accounts of LLP shall be audited in accordance with such rules as may
be prescribed. However, the Central Government may, by notification in the
Official Gazette, exempt any class or classes of LLP from the requirements of
this sub-section.
(5) Penalty for non-compliance of provisions of sub-section 3-

LLP – `100 per day subject to maximum `1,00,000
Every Designated Partners - `100 per day subject to maximum `50,000.

(6) Penalty for non-compliance of provisions of sub-section 1, 2 & 4 -

LLP – not less than `25,000 which may extend to ` 5 Lakhs.
Every designated partner –not less than `10,000 which may extend to `1
Lakh.
Accounting and auditing standards [Section 34A]
Central Government may, in consultation with the National Financial Reporting
Authority constituted under Section 132 of the Companies Act 2013 —
(a) Prescribe the standards of accounting; and
(b) Prescribe the standards of auditing, as recommended by ICAI.
Annual Return [Section 35]
(1) Every LLP shall file an annual return duly authenticated with the Registrar
within 60 days of closure of its financial year in such form and manner and
accompanied by such fee as may be prescribed.
Example 6: Suppose, the financial year of a LLP closes on 31st March, 2022
then the LLP has to file an annual return with the Registrar latest by 30th
May, 2022.
Note
The LLP contra-distinct from Partnership Act, 1932 has prescribed the filing
of Annual Return in accordance with Companies Act, 2013. This is a new
feature of the LLPs.
(2) Penalty for non-filing of annual return –

LLP – `100 per day subject to maximum `1,00,000
Every Designated Partners - `100 per day subject to maximum `50,000
INSPECTION OF DOCUMENTS KEPT BY REGISTRAR [SECTION 36]

The incorporation document, name of partners and changes, if any, made therein,
Statement of Account and Solvency and annual return filed by each LLP with the
Registrar shall be available for inspection by any person in such manner and on
payment of such fee as may be prescribed.

PENALTY FOR FALSE STATEMENT [SECTION 37]

If in any return, statement or other document required by or for the purposes of
any of the provisions of this Act, any person makes a statement—
(a) which is false in any material particular, knowing it to be false; or

(b) which omits any material fact knowing it to be material,
he shall, save as otherwise expressly provided in this Act, be punishable with
imprisonment for a term which may extend to 2 years, and shall also be liable to
fine which may extend to 5 lakh rupees but which shall not be less than 1 lakh
rupees.
POWER OF REGISTRAR TO OBTAIN INFORMATION [SECTION 38]
(1) In order to obtain such information as the Registrar may consider necessary
for the purposes of carrying out the provisions of this Act, the Registrar may
require any person including any present or former partner or designated
partner or employee of a limited liability partnership to answer any question
or make any declaration or supply any details or particulars in writing to him
within a reasonable period.
(2) In case any person referred to in sub-section (1) does not answer such
question or make such declaration or supply such details or particulars
asked for by the Registrar within a reasonable time or time given by the
Registrar or when the Registrar is not satisfied with the reply or declaration
or details or particulars provided by such person, the Registrar shall have
power to summon that person to appear before him or an inspector or any
other public officer whom the Registrar may designate, to answer any such
question or make such declaration or supply such details, as the case may
be.
(3) Any person who, without lawful excuse, fails to comply with any summons
or requisition of the Registrar under this section shall be punishable with
fine which shall not be less than two thousand rupees but which may extend
to twenty-five thousand rupees.
COMPOUNDING OF OFFENCES [SECTION 39]
(1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973, the Regional Director or any other officer not below the rank of

Regional Director authorised by the Central Government may compound

any offence under this Act which is punishable with fine only, by collecting
from a person reasonably suspected of having committed the offence, a
sum which may extend to the amount of the maximum fine provided for the
offence but shall not be lower than the minimum amount provided for the
offence.
(2) Nothing contained in sub-section (1) shall apply to an offence committed by
a limited liability partnership or its partner or its designated partner within a
period of three years from the date on which similar offence committed by
it or him was compounded under this section.
Explanation.—For the removal of doubts, it is hereby clarified that any
second or subsequent offence committed after the expiry of the period of
three years from the date on which the offence was previously
compounded, shall be deemed to be the first offence.
(3) Every application for the compounding of an offence shall be made to the
Registrar who shall forward the same, together with his comments thereon,
to the Regional Director or any other officer not below the rank of Regional
Director authorised by the Central Government, as the case may be.
(4) Where any offence is compounded under this section, whether before or
after the institution of any prosecution, intimation thereof shall be given to
the Registrar within a period of seven days from the date on which the
offence is so compounded.
(5) Where any offence is compounded before the institution of any
prosecution, no prosecution shall be instituted in relation to such offence.
(6) Where the compounding of any offence is made after the institution of any
prosecution, such compounding shall be brought by the Registrar in writing,
to the notice of the court in which prosecution is pending and on such
notice of the compounding of the offence being given, the offender in
relation to which the offence is so compounded shall be discharged.
(7) The Regional Director or any other officer not below the rank of Regional
Director authorised by the Central Government, while dealing with the
proposal for compounding of an offence may, by an order, direct any
partner, designated partner or other employee of the LLP to file or register,

or on payment of fee or additional fee as required to be paid under this Act,

such return, account or other document within such time as may be
specified in the order.
(8) Notwithstanding anything contained in this section, if any partner or
designated partner or other employee of the LLP who fails to comply with
any order made by the Regional Director or any other officer not below the
rank of Regional Director authorised by the Central Government, under sub-
section (7), the maximum amount of fine for the offence, which was under
consideration Regional Director or such authorised officer for compounding
under this section shall be twice the amount provided in the corresponding
section in which punishment for such offence is provided.
6. ASSIGNMENT AND TRANSFER OF

PARTNERSHIP RIGHTS
PARTNER'S TRANSFERABLE INTEREST [SECTION 42]
(1) The rights of a partner to a share of the profits and losses of the limited
liability partnership and to receive distributions in accordance with the
limited liability partnership agreement are transferable either wholly or in
part.
(2) The transfer of any right by any partner pursuant to sub-section (1) does
not by itself cause the disassociation of the partner or a dissolution and
winding up of the limited liability partnership.
(3) The transfer of right pursuant to this section does not, by itself, entitle the
transferee or assignee to participate in the management or conduct of the
activities of the limited liability partnership, or access information
concerning the transactions of the limited liability partnership.
7. CONVERSION INTO LLP

Conversion from firm into LLP [Section 55]: A firm may convert into an LLP in
accordance with the provisions of this Chapter and the Second Schedule.

Conversion from private company into LLP [Section 56]: A private company
may convert into an LLP in accordance with the provisions of this Chapter and the
Third Schedule.
Conversion from unlisted public company into LLP [Section 57]: An unlisted
public company may convert into an LLP in accordance with the provisions of this
Chapter and the Fourth Schedule.
Registration and effect of conversion [Section 58]
(i) The Registrar, on satisfying that a firm, private company or an unlisted
public company, as the case may be, has complied with the respective
Schedules, provisions of this Act and the rules made thereunder, register the
documents submitted under such schedules and issue a certificate of
registration in such form as the Registrar may determine stating that the LLP
is, on and from the date specified in the certificate, registered under this
Act.
(ii) The LLP shall, within 15 days of the date of registration, inform the
concerned Registrar of Firms or Registrar of Companies, as the case may be,
with which it was registered under the provisions of the Indian Partnership
Act, 1932 or the Companies Act, 1956 (Now Companies Act, 2013) as the
case may be, about the conversion and of the particulars of the LLP in such
form and manner as may be prescribed.
(iii) Upon such conversion, the partners of the firm, the shareholders of private
company or unlisted public company, as the case may be, the LLP to which
such firm or such company has converted, and the partners of the LLP shall
be bound by the respective Schedules, as the case may be, applicable to
them.
(iv) Upon such conversion, on and from the date of certificate of registration,
the effects of the conversion shall be such as specified in the respective
schedules, as the case may be.
Effect of Registration: Notwithstanding anything contained in any other law for
the time being in force, on and from the date of registration specified in the
certificate of registration issued under the respective Schedule, as the case may
be,—

(a) there shall be a LLP by the name specified in the certificate of registration
registered under this Act;
(b) all tangible (movable or immovable) and intangible property vested in the
firm or the company, as the case may be, all assets, interests, rights,
privileges, liabilities, obligations relating to the firm or the company, as the
case may be, and the whole of the undertaking of the firm or the company,
as the case may be, shall be transferred to and shall vest in the limited
liability partnership without further assurance, act or deed; and
(c) the firm or the company, as the case may be, shall be deemed to be
dissolved and removed from the records of the Registrar of Firms or
Registrar of Companies, as the case may be.
FOREIGN LLP
Foreign limited liability partnerships [Section 59]
The Central Government may make rules for provisions in relation to
establishment of place of business by foreign LLP within India and carrying on
their business therein by applying or incorporating, with such modifications, as
appear appropriate, the provisions of the Companies Act, 2013 or such regulatory
mechanism with such composition as may be prescribed.
8. COMPROMISE, ARRANGEMENT OR
RECONSTRUCTION OF LIMITED LIABILITY
PARTNERSHIPS
Compromise or arrangement of limited liability partnerships
[Section 60]
(1) Where a compromise or arrangement is proposed—
(a) between a limited liability partnership and its creditors; or
(b) between a limited liability partnership and its partners,
the Tribunal may, on the application of the limited liability partnership or of
any creditor or partner of the limited liability partnership, or, in the case of a
limited liability partnership which is being wound up, of the liquidator, order
a meeting of the creditors or of the partners, as the case may be, to be

called, held and conducted in such manner as may be prescribed or as the

Tribunal directs.
(2) If a majority representing three-fourths in value of the creditors, or partners,
as the case may be, at the meeting, agree to any compromise or
arrangement, the compromise or arrangement shall, if sanctioned by the
Tribunal, by order be binding on all the creditors or all the partners, as the
case may be, and also on the limited liability partnership, or in the case of a
limited liability partnership which is being wound up, on the liquidator and
contributories of the limited liability partnership:
Provided that no order sanctioning any compromise or arrangement shall

be made by the Tribunal unless the Tribunal is satisfied that the limited
liability partnership or any other person by whom an application has been
made under sub-section (1) has disclosed to the Tribunal, by affidavit or
otherwise, all material facts relating to the limited liability partnership,
including the latest financial position of the limited liability partnership and
the pendency of any investigation proceedings in relation to the limited
liability partnership.
(3) An order made by the Tribunal under sub-section (2) shall be filed by the
limited liability partnership with the Registrar within thirty days after making
such an order and shall have effect only after it is so filed.
(4) If default is made in complying with the provisions of sub-section (3), the
LLP and its every designated partner shall be ‘liable to a penalty of `10,000
and in case of continuing default, with further penalty of `100 for each day
after the first during which such default continues, subject to maximum
`1,00,000 for LLP and `50,000 for every designated partner’.
(5) The Tribunal may, at any time after an application has been made to it
under this section, stay the commencement or continuation of any suit or
proceeding against the limited liability partnership on such terms as the
Tribunal thinks fit, until the application is finally disposed of.

Power of Tribunal to enforce compromise or arrangement

(Section 61)
(1) Where the Tribunal makes an order under section 60 sanctioning a
compromise or an arrangement in respect of a limited liability partnership,
it—
(a) shall have power to supervise the carrying out of the compromise or
an arrangement; and
(b) may, at the time of making such order or at any time thereafter, give
such directions in regard to any matter or make such modifications in
the compromise or arrangement as it may consider necessary for the
proper working of the compromise or arrangement.
(2) If the Tribunal aforesaid is satisfied that a compromise or an
arrangement sanctioned under section 60 cannot be worked satisfactorily
with or without modifications, it may, either on its own motion or on the
application of any person interested in the affairs of the limited liability
partnership, make an order for winding up the limited liability partnership,
and such an order shall be deemed to be an order made under section 64 of
this Act.
Provisions for facilitating reconstruction or amalgamation of limited
liability partnerships [Section 62]
(1) Where an application is made to the Tribunal under section 60 for
sanctioning of a compromise or arrangement proposed between a limited
liability partnership and any such persons as are mentioned in that section,
and it is shown to the Tribunal that—
(a) compromise or arrangement has been proposed for the purposes of,
or in connection with, a scheme for the reconstruction of any limited
liability partnership or limited liability partnerships, or the
amalgamation of any two or more limited liability partnerships; and
(b) under the scheme the whole or any part of the undertaking, property
or liabilities of any limited liability partnership concerned in the
scheme (in this section referred to as a "transferor limited liability
partnership") is to be transferred to another limited liability
partnership (in this section referred to as the "transferee limited

liability partnership"), the Tribunal may, either by the order

sanctioning the compromise or arrangement or by a subsequent
order, make provisions for all or any of the following matters,
namely:—
(i) the transfer to the transferee limited liability partnership of the
whole or any part of the undertaking, property or liabilities of any
transferor limited liability partnership;
(ii) the continuation by or against the transferee limited liability
partnership of any legal proceedings pending by or against any
transferor limited liability partnership;
(iii) the dissolution, without winding up, of any transferor limited
liability partnership;
(iv) the provision to be made for any person who, within such time
and in such manner as the Tribunal directs, dissent from the
compromise or arrangement; and
(v) such incidental, consequential and supplemental matters as are
necessary to secure that the reconstruction or amalgamation
shall be fully and effectively carried out:
Provided that no compromise or arrangement proposed for the purposes

of, or in connection with, a scheme for the amalgamation of a limited
liability partnership, which is being wound up, with any other limited liability
partnership or limited liability partnerships, shall be sanctioned by the
Tribunal unless the Tribunal has received a report from the Registrar that
the affairs of the limited liability partnership have not been conducted in a
manner prejudicial to the interests of its partners or to public interest:
Provided further that no order for the dissolution of any transferor limited
liability partnership under clause (iii) shall be made by the Tribunal unless
the Official Liquidator has, on scrutiny of the books and papers of the
limited liability partnership, made a report to the Tribunal that the affairs of
the limited liability partnership have not been conducted in a manner
prejudicial to the interests of its partners or to public interest.
(2) Where an order under this section provides for the transfer of any property
or liabilities, then, by virtue of the order, that property shall be transferred

to and vest in, and those liabilities shall be transferred to and become the
liabilities of, the transferee limited liability partnership; and in the case of
any property, if the order so directs, freed from any charge which is, by
virtue of the compromise or arrangement, to cease to have effect.
(3) Within thirty days after the making of an order under this section, every
limited liability partnership in relation to which the order is made shall cause
a certified copy thereof to be filed with the Registrar for registration.
(4) If default is made in complying with the provisions of sub-section (3), the
LLP and its every designated partner shall be ‘liable to a penalty of `10,000
and in case of continuing contravention, with further penalty of `100 for
each day after the first during which such default continues, subject to
maximum `1,00,000 for LLP and `50,000 for every designated partner’.
Explanation: (i) In this section "property" includes property, rights and powers of
every description; and "liabilities" includes duties of every description.
(ii) a LLP shall not be amalgamated with a company.
9. WINDING UP AND DISSOLUTION

Winding up and dissolution [Section 63]: The winding up of a LLP may be
either voluntary or by the Tribunal and LLP, so wound up may be dissolved.
Circumstances in which LLP may be wound up by Tribunal [Section 64]: A LLP
may be wound up by the Tribunal:
(a) if the LLP decides that LLP be wound up by the Tribunal;
(b) if, for a period of more than six months, the number of partners of the LLP is
reduced below two;
(c) if the LLP has acted against the interests of the sovereignty and integrity of
India, the security of the State or public order 1;
(d) if the LLP has made a default in filing with the Registrar the Statement of
Account and Solvency or annual return for any five consecutive financial
years; or
1
Omitted by the Insolvency and Bankruptcy Code, 2016 (w.e.f. 15.11.2016)

(e) if the Tribunal is of the opinion that it is just and equitable that the LLP be
wound up.
Rules for winding up and dissolution [Section 65]: The Central Government
may make rules for the provisions in relation to winding up and dissolution of
LLP.
10. MISCELLANEOUS
Business Transactions of Partner with LLP [Section 66]: A partner may lend
money to and transact other business with the LLP and has the same rights and
obligations with respect to the loan or other transactions as a person who is not a
partner.
Application of the Provisions of the Companies Act [Section 67]
(1) The Central Government may, by notification in the Official Gazette, direct
that any of the provisions of the Companies Act, 1956 specified in the
notification—
• shall apply to any LLP; or
• shall apply to any LLP with such exception, modification and
adaptation, as may be specified, in the notification.
(2) A copy of every notification proposed to be issued under sub-section (1)

• shall be laid in draft before each House of Parliament, while it is in
session,
• for a total period of 30 days which may be comprised in one session
or in two or more successive sessions, and
• if, before the expiry of the session immediately following the session
or the successive sessions aforesaid, both Houses agree in
disapproving the issue of the notification or both Houses agree in
making any modification in the notification,
• the notification shall not be issued or, as the case may be,
shall be issued only in such modified form as may be agreed upon by both
the Houses.

Payment of Additional Fee [Section 69]

Any document or return required to be registered or filed under this Act with
Registrar, if, is not registered or filed in time provided therein, may be registered
or filed after that time, on payment of such additional fee as may be prescribed in
addition to any fee as is payable for filing of such document or return:
Provided that such document or return shall be filed after the due date of filing,
without prejudice to any other action or liability under this Act:
Provided further that a different fee or additional fee may be prescribed for
different classes of limited liability partnerships or for different documents or
returns required to be filed under this Act or rules made thereunder.
Enhanced Punishment [Section 70]
In case a limited liability partnership or any partner or designated partner of such

limited liability partnership commits any offence, the limited liability partnership
or any partner or designated partner shall, for the second or subsequent offence,
be punishable with imprisonment as provided, but in case of offences for which
fine is prescribed either along with or exclusive of imprisonment, with fine which
shall be twice the amount of fine for such offence.
11. DIFFERENCES WITH OTHER FORMS OF

ORGANISATION
Distinction between LLP and Partnership Firm: The points of distinction
between a limited liability partnership and partnership firm are tabulated as
follows:
Basis LLP Partnership firm
1. Regulating Act The Limited Liability The Indian Partnership Act,

Partnership Act, 2008. 1932.
2. Body corporate It is a body corporate. It is not a body corporate,
3. Separate legal It is a legal entity separate It is a group of persons

entity from its members. with no separate legal
entity.

4. Creation It is created by a legal It is created by an

process called registration agreement between the
under the LLP Act, 2008. partners.
5. Registration Registration is mandatory. Registration is voluntary.

LLP can sue and be sued Only the registered
in its own name. partnership firm can sue
the third parties.
6. Perpetual The death, insanity, The death, insanity,

succession retirement or insolvency retirement or insolvency of
of the partner(s) does not the partner(s) may affect its
affect its existence of LLP. existence. It has no
Members may join or perpetual succession.
leave but its existence
continues forever.
7. Name Name of the LLP to No guidelines. The partners

contain the word limited can have any name as per
liability partners (LLP) as their choice.
suffix.
8. Liability Liability of each partner Liability of each partner is

limited to the extent to unlimited. It can be
agreed contribution extended up to the
except in case of willful personal assets of the
fraud. partners.
9. Mutual agency Each partner can bind the Each partner can bind the
LLP by his own acts but firm as well as other
not the other partners. partners by his own acts.
10. Designated At least two designated There is no provision for

partners partners and at least one such partners under the
of them shall be resident Partnership Act, 1932.
in India.
11. Common seal It may have its common There is no such concept in
seal as its official partnership
signatures.

12. Legal Only designated partners All partners are responsible

compliances are responsible for all the for all the compliances and
compliances and penalties penalties under the Act.
under this Act.
13. Annual filing of LLP is required to file: Partnership firm is not

documents required to file any annual
(i) Statement of
document with the
accounts and
registrar of firms.
solvency (to be filed
annually)
(ii) Annual return with
the registration of LLP
every year.
14. Foreign Foreign nationals can Foreign nationals cannot

partnership become a partner in a LLP. become a partner in a
partnership firm.
15. Minor as partner Minor cannot be admitted Minor can be admitted to

to the benefits of LLP. the benefits of the
partnership with the prior
consent of the existing
partners.
DISTINCTION BETWEEN LLP AND LIMITED LIABILITY COMPANY

Basis LLP Limited Liability Company
1. Regulating Act The LLP Act, 2008. The Companies Act, 2013.
2. Members/ The persons who contribute The persons who invest the
Partners to LLP are known as partners money in the shares are
of the LLP. known as members of the
company.
3. Internal The internal governance The internal governance

governance structure of a LLP is governed structure of a company is
structure by contract agreement regulated by statute (i.e.,
between the partners. Companies Act, 2013).

4. Name Name of the LLP to contain Name of the public company

the word “Limited Liability to contain the word “limited”
partnership” or “LLP” as suffix. and Pvt. Co. to contain the
word “Private limited” as
suffix.
5. No. of Minimum – 2 members Private company:

members/
Maximum – No such limit on Minimum – 2 members
partners
the members in the Act. The
Maximum 200 members
members of the LLP can be
individuals/or body corporate Public company:
through the nominees. Minimum – 7 members
Maximum – No such limit on
the members.
Members can be
organizations, trusts, another
business form or individuals.
6. Liability of Liability of a partners is Liability of a member is

members/ limited to the extent of limited to the amount unpaid
partners agreed contribution in case of on the shares held by them.
intention is fraud.
7. Management The business of the company The affairs of the company

is managed by the partners are managed by board of
including the designated directors elected by the
partners authorized in the shareholders.
agreement.
8. Minimum Minimum 2 designated Pvt. Co. – 2 directors

number of partners
Public co. – 3 directors
directors/
designated
partners

SUMMARY
 Applicability: From 31st March, 2009 (Extends whole of India)
 Non- Applicability: The Indian Partnership Act, 1932 to LLPs.
 Who can be a partner in LLP: Any individual or body corporate may be a
partner in a LLP. But not, person of unsound mind, undischarged insolvent;
or who has applied to be adjudicated as an insolvent.
 Minimum partners:
1. Two partners.
2. If LLP carries on business for more than 6 months with only one
partner, he shall be liable personally for the obligations of the LLP
incurred during that period.
 Designated Partners:
1. At least two designated partners who are individuals and at least one
of them shall be a resident in India.
2. Resident in India: a person who has stayed in India for a period of not
less than 120 days during the immediately preceding one year.
 Registration of conversion to LLP
1. Registrar, on satisfying, will register the documents and issue a

certificate of registration.
2. Information of conversion to Registrar of Firms or Companies by LLP,
within 15 days from registration.
3. Upon such conversion, provisions of LLP will be applicable.
 Effect of Registration of conversion
1. There shall be a LLP by name specified in certificate of registration.

2. All tangible (movable or immovable) and intangible property of firm
or the company, shall vest in LLP 3. Firm or company shall be deemed
to be dissolved.

 Name of LLP:
1. Use of words “limited liability partnership” or “LLP” as the last
words of its name.
2. No LLP registration by a name which, in the opinion of the CG is—
a) undesirable; or
b) identical or too nearly resembles to any other partnership firm
or LLP or company or a registered trade mark.
 Change of name of LLP: If name of registered LLP is identical or too
nearly resembles to any other partnership firm or LLP or company or a
registered trade mark, CG may direct such LLP to change its name within
3 months. (On Application)
 Extent & Limitation of Liability of LLP & Partner
• Partner as agent: Agent of the LLP, but not of other partners.
• Liability of LLP:
1. LLP not bound by anything done by a partner if Partner has no
authority.
2. Obligation of the LLP shall be solely the obligation of the LLP.
3. Liabilities of LLP shall be met out of the property of LLP.
• Liability of partner:
1. Partner is not personally liable for obligations of the LLP.
2. Partner is personally liable for his own wrongful act or omission
• Unlimited liability in case of Fraud:

1. If act carried out by a LLP or partner to defraud creditors, liability
of LLP and partners shall be unlimited.
2. Penalty: imprisonment upto 5 years and fine of `50,000 to `5
Lakhs.
3. Defaulted person also liable to pay compensation.

TEST YOUR KNOWLEDGE

MCQ Based Questions
1. Which of the following cannot be converted into LLP?
(a) Partnership firm
(b) Private company
(c) Listed company
(d) Unlisted company
2. The approved name of LLP shall be valid for a period of ___ from the date of
approval:
(a) 1 Month
(b) 2 Months
(c) 3 months
(d) 6 months
3. Name of the Limited Liability Partnership shall be ended by:
(a) Limited
(b) Limited Liability partnership or LLP
(c) Private Limited
(d) OPC
4. Which one of the following statements about limited liability partnerships
(LLPs) is incorrect?
(a) An LLP has a legal personality separate from that of its members.
(b) The liability of each partner in an LLP is limited.
(c) Members of an LLP are taxed as partners.
(d) A listed company can convert to an LLP.
5. For the purpose of LLP, Resident in India means:
(a) Person who has stayed in India for a period of not less than 182 days
during the current year.

(b) Person who has stayed in India for a period of not less than 180 days
during the immediately preceding one year.
(c) Person who has stayed in India for a period of not less than 181 days
during the immediately preceding one year
(d) Person who has stayed in India for a period of not less than 120 days
during the financial year.
1. “LLP is an alternative corporate business form that gives the benefits of
limited liability of a company and the flexibility of a partnership”. Explain.
2. Mr. Ankit Sharma wants to form a LLP taking him, his wife Mrs. Archika
Sharma and One HUF as partners for that. Whether this LLP can be
incorporated under LLP Act, 2008? Explain.
3. There is an LLP by the name Ram Infra Development LLP which has 4
partners namely Mr. Rahul, Mr. Raheem, Mr. Kartar and Mr. Albert. Mr. Rahul
and Mr. Albert are non – resident while other two are resident. LLP wants to
take Mr. Rahul and Mr. Raheem as Designated Partner. Explain in the light of
Limited Liability Partnership Act, 2008 whether LLP can do so?
4. Mr. Mudit is the creditor of Devi Ram Food Circle LLP. He has a claim of
`10,00,000 against the LLP but the worth of the assets of LLP are only
`7,00,000. Now Mr. Mudit wants to make the partners of LLP personally liable
for the deficiency of `3,00,000. Whether by virtue of provisions of Limited
Liability Act, 2008, Mr. Mudit can claim the deficiency from the partners of
Devi Ram Food Circle LLP?
5. M/s Vardhman Steels LLP was incorporated on 01.09.2022. On 01.01.2023,
one partner of a partnership firm named M/s Vardhimaan Steels is registered
with Indian Partnership Act, 1932 since 01.01.2000 requested ROC that as the
name of LLP is nearly resembles with the name of already registered
partnership firm, the name of LLP should be changed. Explain whether M/s
Vardhman Steels LLP is liable to change its name under the provisions of
Limited Liability Act, 2008?
6. Kanik, Priyansh, Abhinav and Bhawna were partners in Singh Jain &
Associates LLP. Abhinav resigned from the firm w.e.f. 01.11.2022 but this was
not informed to ROC by LLP or Abhinav. Whether Abhinav will still be liable
for the loss of firm of the transactions entered after 01.11.2022?

ANSWERS
Answers to MCQ based Questions
1 (c) Listed company
2 (a) 3 months
3 (b) Limited Liability partnership or LLP
4 (b) A listed company can convert to an LLP
5 (d) Person who has stayed in India for a period of not less than 120 days
during the financial year
Answers to Descriptive Questions

1. LLP is an alternative corporate business form that gives the benefits of
limited liability of a company and the flexibility of a partnership
Limited Liability: Every partner of a LLP is, for the purpose of the business
of LLP, the agent of the LLP, but not of other partners (Section 26 of the LLP
Act, 2008). The liability of the partners will be limited to their agreed
contribution in the LLP, while the LLP itself will be liable for the full extent of
its assets.
Flexibility of a partnership: The LLP allows its members the flexibility of
organizing their internal structure as a partnership based on a mutually
arrived agreement. The LLP form enables entrepreneurs, professionals and
enterprises providing services of any kind or engaged in scientific and
technical disciplines, to form commercially efficient vehicles suited to their
requirements. Owing to flexibility in its structure and operation, the LLP is a
suitable vehicle for small enterprises and for investment by venture capital.
2. Section 5 of Limited Liability Partnership Act, 2008 provides any individual
or body corporate may be a partner in an LLP. However, an individual shall
not be capable of becoming a partner of a LLP, if—
(a) he has been found to be of unsound mind by a Court of competent
jurisdiction and the finding is in force;
(b) he is an undischarged insolvent; or
(c) he has applied to be adjudicated as an insolvent and his application is
pending.

Further, Section (2)(1)(e) provides that a Body Corporate it means a

company as defined in ‘clause (20) of section 2 of the Companies Act, 2013
and includes—
(i) an LLP registered under this Act;
(ii) an LLP incorporated outside India; and
(iii) a company incorporated outside India,
but does not include—
(i) a corporation sole;
(ii) a co-operative society registered under any law for the time being in
force; and
(iii) any other body corporate (not being a company as defined in ‘clause
(20) of section 2 of the Companies Act, 2013 2’ or a limited liability
partnership as defined in this Act), which the Central Government may,
by notification in the Official Gazette, specify in this behalf.
Therefore, HUF is not covered in the definition of body corporate and
cannot be partner in LLP.
3. According to Section 7 of LLP Act, 2008 every LLP shall have at least two
designated partners who are individuals and at least one of them shall be a
resident in India. Further, explanation to the section provides, the term
“resident in India” means a person who has stayed in India for a period of
not less than one hundred twenty days during the financial year. Hence, in
the given problem, besides Mr. Ram and Mr. Raheem, Mr. Albert should also
be designated partners.
4. A limited liability partnership is a body corporate formed and incorporated
under this Act and is a legal entity separate from that of its partners. The
LLP itself will be liable for the full extent of its assets but the liability of the
partners will be limited. Creditors of LLP shall be the creditors of LLP alone.
In other words, creditors of LLP cannot claim from partners. The liability of
the partners will be limited to their agreed contribution in the LLP. Hence
the creditors of Devi Ram Food Circle LLP are the creditors of Devi Ram
Food Circle LLP only. Partners of LLP are not personally liable towards
creditors. Mr. Mudit can not claim his deficiency of ` 3,00,000 from the
partners of Devi Ram Food Circle LLP.

5. Section 15 of LLP Act, 2008 provides no LLP shall be registered by a name

which, in the opinion of the Central Government is—
(a) undesirable; or
(b) identical or too nearly resembles to that of any other ‘LLP or a
company or a registered trade mark of any other person under the
Trade Marks Act, 1999’.
Further, section 17 provides, if the name of LLP is identical with or too
nearly resembles to-
(a) that of any other LLP or a company; or
(b) a registered trade mark of a proprietor under the Trade Marks Act,
1999
then on an application of such LLP or proprietor referred to in clauses (a)
and (b) respectively or a company, the CG may direct that such LLP to
change its name within a period of 3 months from the date of issue of such
direction.
Following the above provisions, LLP need not change its name if its name
resembles with the name of a partnership firm. These provisions are
applicable only in case where name is resembles with LLP, company or a
registered trade mark of a proprietor.
Hence, M/s Vardhman Steels LLP need not change its name even it
resembles with the name of partnership firm.
6. According to section 24(3), where a person has ceased to be a partner of a
LLP (hereinafter referred to as “former partner”), the former partner is to be
regarded (in relation to any person dealing with the LLP) as still being a
partner of the LLP unless—
(a) the person has notice that the former partner has ceased to be a
partner of the LLP; or
(b) notice that the former partner has ceased to be a partner of the LLP
has been delivered to the Registrar.
Hence, by virtue of the above provisions, as no notice of resignation was
given to ROC, Abhinav will still be liable for the loss of firm of the
transactions entered after 01.11.2022.

CHAPTER a
1
THE GENERAL
CLAUSES ACT, 1897
LEARNING OUTCOMES

 Explain the purpose of the General Clauses Act.
 Acquire some basic understanding of the legislation.
 Know the general definitions under the Act.
 Identify general rules of construction.
 Explain powers as to orders, rules etc. made under
enactments.
 Gain knowledge of other miscellaneous provisions.

CHAPTER OVERVIEW
Preliminary [Section 1]
General Definitions [Sections 3 to 4A]
General Rules of Construction [Sections 5 to 13]
THE GENERAL
Powers & Functionaries [Sections 14 to 19]
CLAUSES ACT, 1897
Provisions as to orders, rules etc. made under

enactments [Sections 20 to 24]
Miscellaneous [Sections 25 to 30]
1. INTRODUCTION
Why we study General Clauses Act?
The General Clauses Act, 1897 (Act) was enacted on 11 th March, 1897 to
consolidate and extend the General Clauses Act, 1868 and 1887.
The General Clauses Act, 1897 contains ‘definitions’ of certain terms and general
principles of interpretation. The general definitions provided are applicable to all
Central Acts and Regulations in the absence of definition of a particular word in
any Central Act or Regulation, unless there is anything repugnant in the subject or
context.
The General Clauses Act, 1897 also comes for a rescue in the absence of clear
definition in the specific enactments and where there is a conflict between the
pre-constitutional laws and post-constitutional laws. The Act gives a clear
suggestion for the conflicting provisions and differentiates the legislation
according to the commencement and enforcement to avoid uncertainty.

THE GENERAL CLAUSES ACT, 1897 1.3 a
Example 1: Wherever the law provides that court will have the power to appoint,
suspend or remove a receiver, the legislature simply enacted that wherever
convenient the court may appoint receiver and it was implied within that
language that it may also remove or suspend him. (Rayarappan V. Madhavi
Amma, A.I.R. 1950 F.C. 140)
2. OBJECT, PURPOSE AND IMPORTANCE OF

THE GENERAL CLAUSES ACT
The objects of the Act are several, namely:
(1) to shorten the language of Central Acts;
(2) to provide, as far as possible, for uniformity of expression in Central Acts, by

giving definitions of a series of terms in common use;
(3) To state explicitly certain convenient rules for the construction and
interpretation of Central Acts;
(4) To guard against slips and oversights by importing into every Act certain
common form clauses, which otherwise ought to be inserted in every central
Act.
The General Clauses Act, thus, makes
provisions as to construction of General Purpose- to place in one single
Acts and other laws of all- India statute different provisions as
application. Its importance, therefore, in regards interpretation of words
point of the number of enactments to and legal principles which would
which it applies, is obvious. otherwise have to be specified
separately in many different Acts
The purpose of the Act has been stated
and Regulations
by the Supreme Court in the case of The
Chief Inspector of Mines v. Karam
Chand Thapar. It stated that the purpose
of this Act is to place in one single Statute different provisions as regards
interpretation of words and legal principles which would otherwise have to be
specified separately in many different Acts and regulations. The purpose of the
Act is to avoid superfluity of language in statutes wherever it is possible to do so.

So, whatever General Clauses Act says whether as regards to the meaning of
words or as regards legal principles, has to be read in every statute to which it
applies.
Example 2: A claim of the right to catch fish came under the consideration of
court in Ananda Behera v. State of Orissa. The court tended to decide whether the
right to catch or carry fish is a movable or immovable property.
Section 3(26) of the General Clauses Act, 1897 reads as under: - “Immovable
property” shall include land, benefits to arise out of land, and things attached to
the earth, or permanently fastened to anything attached to the earth;” The
Section 3 of Transfer of Property Act does not define the term except to say that
immovable property does not include standing timber, growing crops or grass. As
fish do not come under that category the definition in the General Clauses Act
applies and as a profit a prendre1 is regarded as a benefit arising out of land it
follows that it is immovable property within the meaning of the Transfer of
Property Act.”
Thus, the court construed “right to catch or carry fish‟ as an immovable property.
3. APPLICATION OF THE GENERAL CLAUSES ACT

The Act does not define any “territorial extent” clause. Its application is primarily
with reference to all Central legislation and also to rules and regulations made
under a Central Act. It is in a sense a part of every Central Acts or Regulations. If a
Central Act is extended to any territory, the General Clauses Act would also deem
to be applicable in that territory and would apply in the construction of that
Central Act. The Central Acts to which this Act apply are: —
(a) Acts of the Indian Parliament (Central Act) along with the rules and
regulations made under the Central Act;
(b) Acts of the Dominion Legislature passed between the 15 th August, 1947 and
the 26th January, 1950;
1
French- Right of taking. The right of persons to share in the land owned by another. A profit
a prendre enables a person to take part of the soil or produce of land that someone else
owns.

(c) Acts passed before the commencement of the Constitution by the

Governor-General in Council or the Governor-General acting in a legislative
capacity. The Act does not define any “territorial extent” clause.
Acts of the Indian Parliament
Application of Acts of the Dominion

the GC Act Legislature
Acts passed before the

commencement of the
Constitution by the Governor
Article 367 of the Constitution of India authorises use of the General Clauses Act
for the interpretation of constitution. Article 367 states that:
“Unless the context otherwise requires, the General Clauses Act, 1897, shall,
subject to any adaptations and modifications that may be made therein
under Article 372, apply for the interpretation of this Constitution as it
applies for the interpretation of an Act of the Legislature of the Dominion of
India".
The provisions of the General Clauses Act, 1897 are mere rules of interpretation
and it applies automatically in each and every case. It all depends on the facts and
circumstances of each case.
In many countries, Legislatures similar to the General Clauses Act are called
Interpretation Acts. But, as the provisions of the General Clauses Act (whether
relating to definitions and meanings of words and terms or dealing with
construction and interpretation) are, so far as may be necessary, common to every
Central Act, the title “General Clauses Act” is not less appropriate than the title
“Interpretation Act”. The Supreme Court had observed in the case of Chief
Inspector of Mines v. K. C. Thapar “Whatever the General Clauses Act says,
whether as regards the meanings of words or as regards legal principles, has to
be read into every Act to which it applies.”
The scope and effect of each section depends upon the text of the particular
section.

Example 3: Section 3 of the General Clauses Act, which deals with the
definitional clause, applies to the General Clauses Act itself and to all Central Acts
and Regulations made after the commencement of the General Clauses Act in
1897.
Similarly, section 4 of the General Clauses Act which deals with the application of
foregoing definitions to previous enactment, applies to Central Acts and after
January 3, 1868 and to regulations made after January 14, 1887.
So, there is a difference in the applicability of each section as regards the statutes
to which it applies.
The language of each section of the General Clauses Act has to be referred to
ascertain to which class of instruments or enactment it applies. In certain cases,
even if no section of the General Clauses Act applies to particular case, the court
applies the general principles of the General Clauses Act.
It may also be noted that the Act also serves as a model for State General Clauses
Act. It is evident that the State General Clauses Acts should conform to the
General Clauses Act of 1897, for, otherwise, divergent rules of construction and
interpretation would apply and. as a result, great confusion might ensue.
Before delving into the saddle of the provisions under General Clauses Act, 1897
let’s have some basic understanding of law.
4. SOME BASIC UNDERSTANDING OF

LEGISLATION
“Preamble”: Every Act has a preamble which expresses the
scope, object and purpose of the Act. It is the main source for
understanding the intention of lawmaker behind the Act.
Whenever there is ambiguity in understanding any provision of Act, Preamble is
accepted as an aid to construction of the Act.
The Preamble of a Statute is a part of the enactment and can legitimately be used
for construing it. However, the Preamble does not over-ride the plain provisions
of the Act but if the wording of the statute gives rise to doubts as to its proper
construction, for example, where the words or phrase has more than one meaning
and a doubt arises as to which of the two meanings is intended in the Act, the

Preamble can and ought to be referred to in order to arrive at the proper

construction.
In short, the Preamble to an Act discloses the primary intention of the legislature
but can only be brought in as an aid to construction if the language of the statute is
not clear. However, it cannot override the provisions of the enactment.
Example 4: Preamble of the Negotiable Instruments Act, 1881 states - “An Act to
define and amend the law relating to Promissory Notes, Bills of Exchange and
Cheque.”
Example 5: Preamble of the Companies Act, 2013 states – “An Act to consolidate
and amend the law relating to companies.”
In order to understand Preamble of the Act, it is important to know the ‘Act’. Act
is a bill passed by both the houses of Parliament and assented to by the
President. Whereas ‘Bill’ is a draft of a legislative proposal put in the proper form
which, when passed by both houses of Parliament and assented to by the
President becomes an Act. On getting assent from President, an Act is notified on
the Official Gazettes of India.
“Definitions”: Every Act contains definition part for the
purpose of that particular Act and that definition part are
usually mentioned in the Section 2 of that Act but in some
other Acts, it is also mentioned in Section 3 or in other initial sections. Hence,
definitions are defined in the Act itself. The object of the definition clause is to
avoid the necessity of frequent repetitions in describing all the subject matter to
which the word or expression so defined is intended to apply.
However, if there may be words which are not defined in the definitions of the
Act, the meaning of such words may be taken from General Clauses Act, 1897.
Words are defined in the respective Act. Sometimes, definitions are referred in
other statutes. If words are not defined in the respective Acts, such words are to
be taken from General Clauses Act.
Example 6: The word ‘Company’ used in the Companies Act, 2013, is defined in
section 2(20) of the respective Act.
Example 7: Word ‘Security’ used in the Companies Act, 2013, is not defined in the
respective Act. It has been defined under section 2(h) of the Securities Contracts
(Regulations) Act, 1956. This word is equivalently applicable on the Companies

Act, 2013. Similarly, the word ‘Digital signature’ used in the Companies Act, shall
be construed as per the section 2(1) (p) of the Information Technology Act, 2000.
Clause 95 of Section 2 of the Companies Act, 2013 clearly says that -

Words and expressions used and not defined in this Act but defined in the
Securities Contracts (Regulation) Act, 1956 or the Securities and Exchange Board
of India Act, 1992 or the Depositories Act, 1996 shall have the meanings
respectively assigned to them in those Acts.
Example 8: The word ‘Affidavit’ used in section 7 during the incorporation of
company, in the Companies Act, 2013, shall derive its meaning from the word
‘Affidavit’ as defined in the General Clauses Act, 1897.
“Means” and/or “include”: Some definitions use the
word “means”. Such definitions are exhaustive
definitions and exactly define the term.
Example 9: Definition of ‘Company’ as given in section 2(20) of the Companies
Act, 2013. It states, “Company” means a company incorporated under this Act or
under any previous company law.
Example 10: Section 2(34) of the Companies Act, 2013 defines the term director
as “director” means a director appointed to the Board of a company.
Some definitions use the word “include”. Such definitions do not define the word
but are inclusive in nature. Where the word is defined to ‘include’ such and such,
the definition is ‘prima facie’ extensive. The word defined is not restricted to the
meaning assigned to it but has extensive meaning which also includes the
meaning assigned to it in the definition section.
Example 11: Word ‘debenture’ defined in section 2(30) of the Companies Act,
2013, states that “debenture” includes debenture stock, bonds or any other
instrument of a company evidencing a debt, whether constituting a charge on the
assets of the company or not”. This is a definition of inclusive nature.
Example 12: “Body Corporate” or “Corporation” includes a company incorporated
outside India. [Section 2(11) of the Companies Act, 2013]
The above definition of Body Corporate does not define the term Body Corporate,
but just states that companies incorporated outside India will also cover under

the definition of Body Corporate, apart from other entities which are called as
Body Corporate.
We may also find a word being defined as ‘means and includes’ such and such,
here again the definition would be exhaustive.
Example 13: Share defined under section 2(84) of the Companies Act, 2013,
states that “Share” means a share in the share capital of a company and includes
stock.
On the other hand, if the word is defined ‘to apply to and include’, the definition
is understood as extensive.
“Shall” and “May”: The word ‘shall’ is used to raise a
presumption of something which is mandatory or imperative
while the word ‘may’ is used to connote something which is
not mandatory but is only directory or enabling. However, sometimes the words
“may and shall” can be interpreted interchangeably depending on the intention of
the legislator.
Example 14: Section 3 of the Companies Act, 2013 states that “A company may
be formed for any lawful purpose by…………….”
Here the word used “may” shall be read as “shall”. Usage of word ‘may’ here
makes it mandatory for a company for the compliance of section 3 for its
formation.
Example 15: Section 21 of the Companies Act, 2013, provides that
documents/proceeding requiring authentication or the contracts made by or on
behalf of the company, may be signed by any Key Managerial Personnel or an
officer of the company duly authorised by the Board in this behalf.
Usage of the ‘may’ shall be read as ‘may’.

The use of word ‘shall’ with respect to one matter and use of word ‘may’ with
respect to another matter in the same section of a statute, will normally lead to
the conclusion that the word ‘shall’ imposes an obligation, whereas word ‘may’
confers a discretionary power (Labour Commr., M.P.V. v. Burhanpur Tapti Mill, AIR,
1964 SC1687).

In Sainik Motors v. State of Rajastan J. Hidyatullah observed “the word Shall is

ordinarily mandatory but it is sometimes not so interpreted if the context or the
intention otherwise demands.
Our approach in this text is to provide basic understanding of law while studying
any legislation. These are few concepts which every student should keep in mind
while studying law. You will read the following concepts in detail in the chapter of
‘Interpretation of Statutes’.
5. PRELIMINARY [SECTION 1]
“Short title” [Section 1(1)]: This Act may be called the General Clauses Act,
1897.
Preliminary is the introductory part of any law which generally contains Short
Title, extent, commencement, application etc. The title although the part of the
Act is in itself not an enacting provision. Every Act is given a title to carve out its
own identity just like people are given their names to identify them.
The General Clauses Act, 1897 contains only short title in the Preliminary part of
the Act.
Note: Section 2 of the General Clauses Act, 1897 has been repealed.
6. DEFINITIONS [SECTION 3]
Three sections of the General Clauses Act, i.e., section 3 (Definitions), 4
(application of foregoing definitions to previous enactment) and 4A (Application
of certain definitions to Indian laws), contain general definitions.
Here in this chapter, we shall be discussing some of the relevant definitions or

terms which are by and large seen in the Acts.
Section 3, which is the principal section containing definitions, applies to the
General Clauses Act itself and to post-1897 Central Acts and Regulations unless
those laws contain separate definitions of their own or there is something
repugnant in the subject or context. Section 3 seeks to define 67 phrases and
terms commonly used in enactments and are intended to serve as a dictionary for
the phrases.

Bartley in his commentary on the General Clauses Act, 1897 has pointed out that
a definition may be explanatory, restrictive or extensive.
Section 3 reads as – “In this Act, and in all Central Acts and Regulations made after the
commencement of this Act, unless there is anything repugnant in the subject or context,-
1. “Act” [Section 3(2)]: ‘Act’, used with reference to an offence or a civil
wrong, shall include a series of acts, and words which refer to
acts done extend also to illegal omissions;
An act required to be done cannot necessarily mean a positive act only and
may also include acts which one is precluded from doing from decree. This
definition is based on sections 32 and 33 of the Indian Penal Code and
applies to civil wrongs as well as crimes. 'Act' includes illegal omissions as
well but it does not include an omission which is not illegal.
In the illustration to section 36 of the Indian Penal Code, the act by which A
causes Z's death consists of a series of acts, namely, the blows given in
beating him, plus a series of illegal omissions, namely, wrongfully neglecting
or refusing to supply him with food at proper times.
2. “Affidavit” [Section 3(3)]: ‘Affidavit’ shall include
affirmation and declaration in the case of persons by
law allowed to affirm or declare instead of swearing.
There are two important points derived from the above definition:
1. Affirmation and declaration,
2. In case of persons allowed affirming or declaring instead of swearing.
The above definition is inclusive in nature. It states that Affidavit shall
include affirmation and declarations. This definition does not define
affidavit. However, we can understand this term in general parlance.
Affidavit is a written statement confirmed by oath or affirmation for use as
evidence in Court or before any authority.
3. “Central Act” [Section 3(7)]: ‘Central Act’ shall

mean an Act of Parliament, and shall include-
(a) An Act of the Dominion Legislature or of the
Indian Legislature passed before the commencement of the
Constitution*, and

(b) An Act made before such commencement by the Governor General in

Council or the Governor General, acting in a legislative capacity;
*The date of the commencement of the Constitution is 26 th January, 1950.
4. “Central Government” [Section 3(8)]:
‘Central Government’ shall-
(a) In relation to anything done before

the commencement of the Constitution, mean the Governor General in
Council, as the case may be; and shall include,-
(i) In relation to functions entrusted under sub-section (1) of the
section 124 of the Government of India Act, 1935, to the
Government of a Province, the Principal Government acting
within the scope of the authority given to it under that sub-
section; and
(ii) In relation to the administration of a Chief Commissioner’s
Province, the Chief Commissioner acting within the scope of the
authority given to him under sub-section (3) of section 94 of the
said Act; and
(b) In relation to anything done or to be done after the commencement of
the constitution of the Constitution, mean the President; and shall
include;-
(i) In relation to function entrusted under clause (1) of the article of
the Constitution, to the Government of a state, the State
Government acting within the scope of the authority given to it
under that clause;
(ii) In relation to the administration of a Part C State before the
commencement of the Constitution (Seventh Amendment) Act,
1956*, the Chief Commissioner or the Lieutenant Governor or
the Government of a neighboring State or other authority acting
within the scope of the authority given to him or it under article
239 or article 243 of the Constitution, as the case may be; and
(iii) In relation to the administration of a Union territory, the
administrator thereof acting within the scope of the authority
given to him under article 239 of the Constitution;

*The date of commencement of the Constitution (Seventh

Amendment) Act, 1956 is 01 st January, 1956.
The new Constitution of India, which came into force on 26 January
1950, made India a sovereign democratic republic. The new republic
was also declared to be a "Union of States". Between 1947 and 1950
the territories of the princely states were politically integrated into the
Indian Union. The constitution of 1950 distinguished between three
main types of states and a class of territories:
Part A states, which were the former governors' provinces of British
India, were ruled by a Governor appointed by the President and an
elected state legislature. The nine Part A states were Assam, Bihar,
Bombay, Madhya Pradesh (formerly Central Provinces and Berar),
Madras, Orissa, Punjab (formerly East Punjab), Uttar Pradesh (formerly
the United Provinces), and West Bengal.
Part B states, which were former princely states or groups of princely
states, governed by a Rajpramukh, who was usually the ruler of a
constituent state, and an elected legislature. The Rajpramukh was
appointed by the President of India. The eight Part B states were
Hyderabad, Jammu and Kashmir, Madhya Bharat, Mysore, Patiala and
East Punjab States Union (PEPSU), Rajasthan, Saurashtra, and
Travancore-Cochin.
Part C states included both the former chief commissioners' provinces

and some princely states, and each was governed by a chief
commissioner appointed by the President of India. The ten Part C
states were Ajmer, Bhopal, Bilaspur, Coorg, Delhi, Himachal Pradesh,
Cutch, Manipur, Tripura, and Vindhya Pradesh.
The sole Part D territory was the Andaman and Nicobar Islands, which
were administered by a Lieutenant Governor appointed by the Central
Government.
5. “Commencement” [Section 3(13)]:
‘Commencement’ used with reference to an
Act or Regulation, shall mean the day on
which the Act or Regulation comes into force;

Coming into force or entry into force (also called commencement) refers to
the process by which legislation; regulations, treaties and other legal
instruments come to have legal force and effect.
A Law cannot be said to be in force unless it is brought into operation by
legislative enactment, or by the exercise of authority by a delegate
empowered to bring it into operation. The theory of a statute being “in
operation in a constitutional sense” though it is not in fact in operation has
no validity. [State of Orissa Vs. Chandrasekhar Singh Bhoi, Air 1970 SC 398]
6. “Document” [Section 3(18)]: ‘Document’
shall include any matter written, expressed or
described upon any substance by means of
letters, figures or marks or by more than one
of those means which is intended to be used or which may be used, for the
purpose or recording that matter.
Any matter written, expressed or

described upon any substance
By means of letters, or figures or

by more than one of those means
Document
Shall include
[Sec. 3 (18)]
Which is intended to be used or
which may be used
For the purpose of recording that

matter
Thus, the term “Document” includes any substance upon which any matter
is written or expressed by means of letters or figures for recording that
matter.
For example, book, file, painting, inscription and even computer files are all
documents. However, it does not include Indian currency notes.

7. “Enactment” [Section 2(19)]: ‘Enactment’ shall

include a Regulation (as hereinafter defined)
and any Regulation of Bengal, Madras or
Bombay Code, and shall also include any provision contained in any Act or
in any such Regulation as aforesaid;
It has been held that an “enactment” would include any Act (or a provision
contained therein) made by the Union Parliament or the State Legislature.
Again, since “enactment” is defined to include also any provision of an Act,
section 6 (Effect of repeal) would apply to a case where not only the entire
Act is repealed, but also where any provision of an Act is repealed. [State of
Punjab Sukh Deo Sarup Gupta A.LR. 1970 SC 1661, 1942, para 3, affirming
A.I.R. 1965 Punj. 399 and Godhra Electricity Co. v. Somalal, A.I.R. 1967 Guj.
772, 776, para 6.]
Rules and regulation are nothing but a species of legislation. The legislature
instead of enacting the same itself delegates the power to other person.
Whatever is enacted by the delegate of legislature is also enactment.
8. “Financial Year” [Section 3(21)]: Financial
year shall mean the year commencing on the
first day of April.
The term Year has been defined under Section 3(66) as a year reckoned
according to the British calendar. Thus, as per General Clauses Act, Year
means calendar year which starts from January to December.
Difference between Financial Year and Calendar Year: Financial year
starts from first day of April but Calendar Year starts from first day of
January.
Commencing on
Financial Year The year
the first day of
April

9. “Good Faith” [Section 3(22)]: A thing

shall be deemed to be done in “good
faith” where it is in fact done honestly,
whether it is done negligently or not;
The question of good faith under the General Clauses Act, 1897 is one of
fact. It is to determine with reference to the facts and circumstances of each
case. Thus, anything done with due care and attention, which is not malafide
is presumed to have been done in good faith. For eg: An authority is not
acting honestly where it had a suspicion that there was something wrong
and did not make further enquiries
The term “good faith” has been defined differently in different enactments.
This definition of the good faith does not apply to that enactment which
contains a special definition of the term “good faith” and the definition
given in that particular enactment has to be followed. This definition may be
applied only if there is nothing repugnant in subject or context.
In Maung Aung Pu Vs. Maung Si Maung, it was pointed out that the
expression “good faith” is not defined in the Indian Contract Act, 1872 and
the definition given here in the General Clauses Act, 1897 does not
expressly apply the term on the Indian Contract Act. The definition of good
faith as is generally understood in the civil law and which may be taken as a
practical guide in understanding the expression in the contract Act is that
nothing is said to be done in good faith which is done without due care and
attention as is expected with a man of ordinary prudence. An honest
purchase made carelessly without making proper enquiries cannot be said
to have been made in good faith so as to convey good title.
10. “Government” [Section 3(23)]:
‘Government’ or ‘the Government’ shall
include both the Central Government and
State Government.
Hence, wherever, the word ‘Government’ is used, it will include Central
Government and State Government both.
The object of this definition is to make it clear that the word ‘Government’,
frequently used as a convenient abbreviation, may be construed according
to the context in either of the two senses indicated. Government generally

connotes three wings, the Legislature, the Executive and the Judiciary; but in
a narrow sense it is used to connote the Executive only. Meaning to be
assigned to that expression, therefore, depends on the context in which it is
used.
11. “Government Securities” [Section 3(24)]:
‘Government securities’ shall mean
securities of the Central Government or of
any State Government, but in any Act or
Regulation made before the
commencement of the Constitution shall not include securities of the
Government of any Part B state.
By virtue of section 4A, this definition applies to all Indian laws.
12. “Immovable Property” [Section 3(26)]:

‘Immovable Property’ shall include:
i) Land,
ii) Benefits to arise out of land, and
iii) Things attached to the earth, or

iv) Permanently fastened to anything attached to the earth.
It is an inclusive definition. It contains four elements:
a. land,
b. benefits to arise out of land,
c. things attached to the earth and
d. things permanently fastened to anything attached to the earth.
Where, in any enactment, the definition of immovable property is in the
negative and not exhaustive, the definition as given in the General Clauses
Act will apply to the expression given in that enactment.
Example 16: In Shantabai v. State of Bombay, the Supreme Court pointed
out that trees must be regarded as immovable property because they are
attached to or rooted in the earth.

An agreement to convey forest produce like tendu leaves, timber, bamboos

etc., the soil for making bricks, the right to build on and occupy the land for
business purposes and the right to grow new trees and to get leaves from
trees that grow in further are all included in the term immovable property.
Example 17: Right of way to access from one place to another, may come
within the definition of Immovable property whereas to right to drain of
water is not immovable property. Any machinery fixed to the soil, standing
crops can be held as immovable property according to the General Clauses
Act, 1897.
Land
Benefits to arise out of land

Immovable
Property Shall include
[Section 3(26)] Things attached to the earth
Things permanently fastened to

anything attached to the earth
13. “Imprisonment” [Section 3(27)]:

‘Imprisonment’ shall mean imprisonment of
either description as defined in the Indian
Penal Code;
By section 53 of the Indian Penal Code, the punishment to which offenders
are liable under that Code are imprisonment which is of two descriptions,
namely, rigorous, that is with hard labor and simple. So, when an Act
provides that an offence is punishable with imprisonment, the Court may, in
its discretion, make the imprisonment rigorous or simple.
14. “Indian law” [Section 3(29)] : ‘Indian
law’ shall mean any Act, Ordinance,
Regulation, rule, order, bye law or other
instrument which before the commencement of the Constitution, had the
force of law in any Province of India or part thereof or thereafter has the

force of law in any Part A or Part C State or part thereof, but does not
include any Act of Parliament of the United Kingdom or any Order in
Council, rule or other instrument made under such Act;
15. “Month” [Section 3(35)]: ‘Month’ shall mean a
month reckoned according to the British calendar;
16. “Movable Property” [Section 3(36)]:
‘Movable Property’ shall mean property of
every description, except immovable
property.
Thus, any property which is not immovable property is movable property.

Debts, share, electricity are moveable property.
17. “Oath” [Section 3(37)]: ‘Oath’ shall include affirmation
and declaration in the case of persons by law allowed to
affirm or declare instead of swearing.
18. “Offence” [Section 3(38)]: ‘Offence’ shall
mean any act or omission made punishable by
any law for the time being in force.
Any act or omission which is if done, is punishable under any law for the
time being in force, is called as offence.
19. “Official Gazette” [Section 3(39)]:
‘Official Gazette’ or ‘Gazette’ shall mean:
(i) The Gazette of India, or

(ii) The Official Gazette of a state.
The Gazette of India is a public journal and an authorised legal document of
the Government of India, published weekly by the Department of
Publication, Ministry of Housing and Urban Affairs. As a public journal, the
Gazette prints official notices from the government. It is authentic in
content, accurate and strictly in accordance with the Government policies
and decisions. The gazette is printed by the Government of India Press.

20. “Person” [Section 3(42)]: “Person” shall include:

(i) any company, or
(ii) association, or
(iii) body of individuals, whether incorporated or not

21. “Registered” [Section 3(49)]: ‘Registered’
used with reference to a document, shall mean
registered in India under the law for the time
being force for the registration of documents.
22. “Rule” [Section 3(51)]: ‘Rule’ shall mean a rule made
in exercise of a power conferred by any enactment,
and shall include a Regulation made as a rule under
any enactment;
23. “Schedule” [Section 3(52)]: ‘Schedule’ shall
mean a schedule to the Act or Regulation in
which the word occurs;
24. “Section” [Section 3(54)]: ‘Section’ shall mean a
section of the Act or Regulation in which the
word occurs;
25. “Sub-section” [Section 3(61)]: ‘Sub-section’
shall mean a sub-section of the section in which
the word occurs;
26. “Swear” [Section 3(62)]: “Swear”, with its

grammatical variations and cognate expressions, shall
include affirming and declaring in the case of persons
by law allowed to affirm or declare instead of
swearing.
Note: The terms “Affidavit”, “Oath” and “Swear” have the same definitions in
the Act.

27. “Writing” [Section 3(65)]: Expressions referring to

‘writing’ shall be construed as including references to
printing, lithography, photography and other modes of
representing or reproducing words in a 2visible forms.
28. “Year” [Section 3(66)]: ‘Year’ shall mean a year
reckoned according to the British calendar.
Application to foregoing definitions to previous enactments [Section 4] -
There are certain definitions in section 3 of the General Clauses Act, 1897 which
would also apply to the Acts and Regulations made prior to 1897 i.e., on the
previous enactments of 1868 and 1887. This provision is divided into two parts-
(1) Application of terms/expressions to all [Central Acts] made after 3rd
January, 1868, and to all Regulations made on or after the 14th January,
1887-
Here the given relevant definitions in section 3 of the following words and
expressions, that is to say, ‘affidavit’, ‘immovable property’, ‘imprisonment’,
‘‘month’, ‘movable property’, ‘oath’, ‘person’, ‘section’, ‘and ‘year’ apply also,
unless there is anything repugnant in the subject or context, to all Central
Acts made after the 3rd January, 1868, and to all Regulations made on or
after the 14 th January, 1887.
(2) Application of terms/expressions to all Central Acts and Regulations
made on or after the fourteenth day of January, 1887- The relevant
given definitions in the section 3 of the following words and expressions,
that is to say, ‘commencement’, ‘financial year’, ‘offence’, ‘registered’,
schedule’, ‘sub-section’ and ‘writing’ apply also, unless there is anything
repugnant in the subject or context, to all Central Acts and Regulations
made on or after the fourteenth day of January, 1887.
3
Application of certain definitions to Indian Laws [Section 4A]-
(1) The definitions in section 3 of the expressions ‘Central Act’, ‘Central

Government’, ‘‘Gazette’, ‘Government’, ‘Government Securities’, ‘Indian Law’,
and ‘‘Official Gazette’, ‘shall apply, unless there is anything repugnant in the
subject or context, to all Indian laws.
2
Reference of relevant definitions of section 3 is given in section 4.
Reference of relevant definitions of section 3 is given in section 4A.
3

(2) In any Indian law, references, by whatever form of words, to revenues of the
Central Government or of any State Government shall, on and from the first
day of April, 1950, be construed as references to the Consolidated Fund of
India or the Consolidated Fund of the State, as the case may be.
7. GENERAL RULES OF CONSTRUCTION:

[SECTION 5 TO SECTION 13]
“Coming into operation of enactment” [Section 5]: Where any Central Act has
not specifically mentioned a particular date to come into force, it shall be
implemented on the day on which it receives the assent of the Governor General
in case of a Central Acts made before the commencement of the Indian
Constitution and/or, of the President in case of an Act of Parliament.
Example 18: The Companies Act, 2013 received assent of President of India on
29th August, 2013 and was notified in Official Gazette on 30 th August, 2013 with
the enforcement of section 1 of the Act. Accordingly, the Companies Act, 2013
came into enforcement on the date of its publication in the Official Gazette.
Where, if any specific date of enforcement is prescribed in the Official Gazette,
Act shall into enforcement from such date.
Example 19: SEBI (Issue of Capital and Disclosure Requirements) (Fifth
Amendment) Regulations, 2015 was issued by SEBI vide Notification dated 14 th
August, 2015 with effect from 1 January, 2016. Here, this regulation shall come
into force on 1 st January, 2016 rather than the date of its notification in the
gazette.
The Supreme Court in A.K. Roy v. UOI, AIR 1982 SC 710, observed that where an
Act empowers the government to bring any of the provisions into operation on
any day which it deems fit, no Court can issue a mandamus with a view to compel
the Government to bring the same into operation on particular day.
However, in Altemeis Rein v. UOI AIR 1988 SC 1768, it was held that if a sufficient
time has elapsed since an Act or any of its provisions has been passed and it has
not been brought into force (operation) by the Government, the Court through a
writ can direct the Government to consider the question as to when the same
should begin to operate.

In the case of State of Uttar Pradesh v. Mahesh Narain, AIR 2013 SC 1778,
Supreme Court held that effective date of Rules would be when the Rules are
published vide Gazette notification and not from date when the Rules were under
preparation.
Also, law takes no cognizance of fraction of day, thus where an Act provides that
it is to come into force on the first day of January, it will come into force on as
soon as the clock has struck 12 on the night of 31st December.
PRESUMPTION AGAINST RETROSPECTIVITY

All laws which affect substantive vested rights generally operate prospectively and
there is a presumption against their retrospectivity till there are express words
giving retrospective effect or where the language used necessarily implies that
such retrospective operation is intended. Hence, the question whether a statutory
provision has retrospective effect or not depends primarily on the language in
which it is couched.
“Effect of Repeal” [Section 6]: Where any Central legislation or any regulation
made after the commencement of this Act repeals any Act made or yet to be
made, unless another purpose exists, the repeal shall not:
⚫ Revive anything not enforced or prevailed during the period at which
repeal is effected or;
⚫ Affect the previous operation of any enactment so repealed or anything
duly done or suffered thereunder; or
⚫ Affect any right, privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed; or
⚫ Affect any penalty, forfeiture or punishment incurred in respect of any
offence committed against any enactment so repealed; or
⚫ Affect any inquiry, litigation or remedy with regard to such claim,
privilege, debt or responsibility or any inquiry, litigation or remedy may be
initiated, continued or insisted.
In State of Uttar Pradesh v. Hirendra Pal Singh, (2011), 5 SCC 305, SC held that
whenever an Act is repealed, it must be considered as if it had never existed.
Object of repeal is to obliterate the Act from statutory books, except for certain
purposes as provided under Section 6 of the Act.

In Kolhapur Canesugar Works Ltd. v. Union of India, AIR 2000, SC 811, Supreme
Court held that Section 6 only applies to repeal and not to omissions and applies
when the repeal is of a Central Act or Regulation and not of a Rule.
In Navrangpura Gam Dharmada Milkat Trust v. Ramtuji Ramaji, AIR 1994 Guj 75:
‘Repeal’ of provision is in distinction from ‘deletion’ of provision. ‘Repeal’
ordinarily brings about complete obliteration of the provision as if it never
existed, thereby affecting all incoherent rights and all causes of action related to
the ‘repealed’ provision while ‘deletion’ ordinarily takes effect from the date of
legislature affecting the said deletion, never to effect total effecting or wiping out
of the provision as if it never existed. For the purpose of this section, the above
distinction between the two is essential.
“Repeal of Act making textual amendment in Act or Regulation” [Section
6A]- Where any Central Act or Regulation made after the commencement of this
Act repeals any enactment by which the text of any Central Act or Regulation was
amended by the express omission, insertion or substitution of any matter, then
unless a different intention appears, the repeal shall not affect the continuance of
any such amendment made by the enactment so repealed and in operation at the
time of such repeal.
“Revival of repealed enactments” [Section 7]- (1) In any Central Act or

Regulation made after the commencement of this Act, it shall be necessary, for
the purpose of reviving, either wholly or partially, any enactment wholly or
partially repealed, expressed to state that purpose.
(2) This section applies also to all Central Acts made after the third day of January,
1968 and to all Regulations made on or after the fourteenth day of January, 1887.
In other words, to revive a repealed statute, it is necessary to state an intention to
do so.
“Construction of references to repealed enactments” [Section 8]- (1) Where
this Act or Central Act or Regulation made after the commencement of this Act,
repeals and re-enacts, with or without modification, any provision of a former
enactment, then references in any other enactment or in any instrument to the
provision so repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the
United Kingdom repealed and re-enacted, with or without modification, any
provision of a former enactment, then reference in any Central Act or in any
Regulation or instrument to the provision so repealed shall, unless a different
intention appears, be construed as references to the provision so re-enacted.
In Gauri Shankar Gaur v. State of U.P., AIR 1994 SC 169, it was held that every Act
has its own distinction. If a later Act merely makes a reference to a former Act or
existing law, it is only by reference and all amendments, repeals new law
subsequently made will have effect unless its operation is saved by the relevant
provision of the section of the Act.
Example 20: In section 115 JB of the Income Tax Act, 1961, for calculation of
book profits, the Companies Act, 1956 are required to be referred. With the
advent of Companies Act, 2013, the corresponding change has not been made in
section 115 JB of the Income Tax Act, 1961. On referring of section 8 of the
General Clauses Act, book profits to be calculated under section 115 JB of the
Income Tax Act will be as per the Companies Act, 2013.
“Commencement and termination of time” [Section 9]: In any legislation or
regulation, it shall be sufficient, for the purpose of excluding the first in a series of
days or any other period of time to use the word “from” and for the purpose of
including the last in a series of days or any other period of time, to use the word
“to”.
Example 21: A company declares dividend for its shareholder in its Annual
General Meeting held on 30/09/2022. Under the provisions of the Companies Act,
2013, company is required to pay declared dividend within 30 days from the date
of declaration i.e. from 01/10/2022 to 30/10/2022. In this series of 30 days,
30/09/2022 will be excluded and last 30 th day i.e. 30/10/2022 will be included.
“Computation of time” [Section 10]: Where by any legislation or regulation,
any act or proceeding is directed or allowed to be done or taken in any court or
office on a certain day or within a prescribed period then, if the Court or office is
closed on that day or last day of the prescribed period, the act or proceeding
shall be considered as done or taken in due time if it is done or taken on the next
day afterwards on which the Court or office is open.
In K. Soosalrathnam v. Div. Engineer, N.H.C. Tirunelveli, it was held by Madras High
Court that since the last date of the prescribed period was subsequent to the date

of notification, declared to be a holiday on the basis of the principles laid down in

this section the last date of prescribed period for obtaining the tender schedules
was extended to the next working day.
“Measurement of Distances” [Section 11]: In the measurement of any distance,
for the purposes of any Central Act or Regulation made after the commencement
of this Act, that distance shall, unless a different intention appears, be measured
in a straight line on a horizontal plane.
“Duty to be taken pro rata in enactments” [Section 12]: Where, by any
enactment now in force or hereafter to be in force, any duty of customs or excise
or in the nature thereof, is leviable on any given quantity, by weight, measure or
value of any goods or merchandise, then a like duty is leviable according to the
same rate on any greater or less quantity.
Pro rata is a Latin term used to describe a proportionate allocation.
Example 22: Where several debtors are liable for the whole debt and each is
liable for his own share or proportion only, they are said to be bound pro rata.
Example 23: When a company pays dividends to its shareholders, each investor is
paid according to their holdings. If a company has 100 shares outstanding, for
example, and issues a dividend of ` 2 per share, the total amount of dividends
paid will be ` 200. No matter how many shareholders there are, the total dividend
payments cannot exceed this limit. In this case, ` 200 is the whole, and the pro
rata calculation must be used to determine the appropriate portion of that whole
due to each shareholder.
Assume there are only four shareholders who hold 50, 25, 15, and 10 shares,
respectively. The amount due to each shareholder is their pro rata share. This is
calculated by dividing the ownership of each person by the total number of
shares and then multiplying the resulting fraction by the total amount of the
dividend payment.
The majority shareholder's portion, therefore, is (50/100) x ` 200 = ` 100. This

makes sense because the shareholder owns half of the shares and receives half of
the total dividends. The remaining shareholders get ` 50, ` 30, and ` 20,
respectively.
“Gender and number” [Section 13]: In all legislations and regulations, unless
there is anything repugnant in the subject or context-

(1) Words importing the masculine gender shall be taken to include females,
and
(2) Words in singular shall include the plural and vice versa.
In accordance with the rule that the words importing the masculine gender are to
be taken to include females, the word men may be properly held to include
women, and the pronoun ‘he’ and its derivatives may be construed to refer to any
person whether male or female. So, the words ‘his father and mother’ as they
occur in Section 125(1) (d) of the CrPC, 1973 have been construed to include ‘her
father and mother’ and a daughter has been held to be liable to maintain her
father unable to maintain himself.
But the general rule in Section 13(1) has to be applied with circumspection of
interpreting laws dealing with matters of succession. Thus, the words “male
descendants” occurring in Section 7 and Section 8 of the Chota Nagpur Tenancy
Act, 1908 were not interpreted to include female descendants.
Where a word connoting a common gender is available but the word used
conveys a specific gender, there is a presumption that the provisions of General
Clauses Act, 1897 do not apply. Thus, the word ‘bullocks’ could not be interpreted
to include ‘cows’.
8. POWER AND FUNCTIONARIES [SECTION 14

TO SECTION 19]
“Power conferred to be exercisable from time to time” [Section 14]: (1)
Where, by any Central Act or Regulation made after the commencement of this
Act, any power is conferred, then unless a different intention appears that power
may be exercised from time to time as occasion requires.
(2) This section applies to all Central Acts and Regulations made on or after the
fourteenth day of January, 1887.
Relying on Section 14, the SC has held that the power under Section 51(3) of the
States Reorganisation Act, 1956 can be exercised by the Chief Justice as and when
the occasion arose for its exercise.
“Power to appoint to include power to appoint ex-officio” [Section 15]:
Where by any legislation or regulation, a power to appoint any person to fill any

office or execute any function is conferred, then unless it is otherwise expressly

provided, any such appointment, may be made either by name or by virtue of
office.
Ex-officio is a Latin word which means by virtue of one’s position or office.
Provision under this section states that where there is a power to appoint, the
appointment may be made by appointing ex-officio as well.
“Power to appoint to include power to suspend or dismiss” [Section 16]: The

authority having for the time being power to make the appointment shall also
have power to suspend or dismiss any person appointed whether by itself or any
other authority in exercise of that power.
Order 40, Rule 1(a) of CPC, 1908, which authorises a court to appoint a receiver,
has been construed to embrace power of removing a receiver.
Article 229(1) of the Constitution which empowers the Chief Justice to make
appointment of officers and servants of a High Court has been interpreted to
include a power to suspend or dismiss.
“Substitution of functionaries” [Section 17]: (1) In any Central Act or
Regulation made after the commencement of this Act, it shall be sufficient, for the
purpose of indicating the application of a law to every person or number of
persons for the time being executing the functions of an office, to mention the
official title of the officer at present executing the functions, or that of the officer
by whom the functions are commonly executed.
(2) This section applies also to all Central Acts made after the third day of January,
1868 and to all Regulations made on or after the fourteenth day of January, 1887.
“Successors” [Section 18]: (1) In any Central Act or Regulation made after the
commencement of this Act, it shall be sufficient, for the purpose of indicating the
relation of a law to the successors of any functionaries or of corporations having
perpetual succession, to express its relation to the functionaries or corporations.
(2) This section shall also apply to all Central Acts made after the third day of
January, 1868 and to all Regulations made on or after the fourteenth day of
January, 1887.
“Official Chiefs and subordinates” [Section 19]: A law relative to the chief or
superior of an office shall apply to the deputies or subordinates lawfully
performing the duties of that office in the place of their superior, to prescribe the

duty of the superior. This section applies to all the Central Acts made after the
third day of January, 1868, and to all Regulations made on or after the fourteenth
day of January, 1887.
In K.G. Krishnayya v. State, AIR 1959 it was held that it is not essential that same
statutory authority that initiated a scheme under the Road Transport Corporation
Act 1950, should also implement it. It is open to the successor authority to
implement or continue the same.
Similarly, in case under the Preventive Detention Act, where there is a change in
the Advisory Board after service of the detention order, the new Advisory Board
can consider the case pending before the earlier board.
9. PROVISION AS TO ORDERS, RULES ETC.

MADE UNDER ENACTMENTS [SECTION 20
TO SECTION 24]
“Construction of orders, etc., issued under enactments” [Section 20]: Where
by any legislation or regulation, a power to issue any notification, order, scheme,
rule, form, or by-law is conferred, then expression used in the notification, order,
scheme, rule, form or bye-law, shall, unless there is anything repugnant in the
subject or context, have the same respective meaning as in the Act or regulation
conferring power.
Example 24: The term ‘collector’ used in Rule 4 of the Land Acquisition
(Companies) Rule, 1963, will have the same meaning as in Section 3(c) of the Land
Acquisition Act, 1894.
In Subhash Ram Kumar v. State of Maharashtra, AIR 2003 SC 269, it was held that
‘Notification’ in common English acceptation mean and imply a formal
announcement of a legally relevant fact and “notification publish in Official
Gazette” means notification published by the authority of law. It is a formal
declaration and should be in accordance with the declared policies or statute.
Notification cannot be substituted by administrative instructions.
“Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws” [Section 21]: Where by any
legislations or regulations a power to issue notifications, orders, rules or bye-laws

is conferred, then that power, exercisable in the like manner and subject to the
like sanction and conditions (if any), to add, to amend, vary or rescind any
notifications, orders, rules or bye laws so issued.
In Rasid Javed v. State of Uttar Pradesh, AIR 2010 SC 2275, Supreme Court held
that under Section 21 of the Act, an authority which has the power to issue a
notification has the undoubted power to rescind or modify the notification in the
like manner.
In Shreesidhbali Steels Ltd. v. State of Uttar Pradesh, AIR 2011 SC 1175, Supreme
Court held that power under section 21 of the Act is not so limited as to be
exercised only once power can be exercised from time to time having regard to
exigency of time.
“Making of rules or bye-laws and issuing of orders between passing and
commencement of enactment” [Section 22]: Where, by any Central Act or
Regulation which is not to come into force immediately, on the passing thereof, a
power is conferred to make rules or bye-laws, or to issue orders with respect to
the application of the Act or Regulation or with respect to the establishment of
any Court or the appointment of any Judge or officer thereunder, or with respect
to the person by whom, or the time when, or the place where, or the manner in
which, or the fees for which, anything is to be done under the Act or Regulation,
then that power may be exercised at any time after passing of the Act or
Regulation; but rules, bye-laws or orders so made or issued shall not take effect
till the commencement of the Act or Regulation.
It is an enabling provision, its content and purpose being to facilitate the making
of rules, bye laws and orders before the commencement of the enactment in
anticipation of its coming into force. In other words, it validates rules, bye laws
and orders made before the coming into force of the enactment, provided they
are made after its passing and as preparatory to the enactment coming into force.
“Provisions applicable to making of rules or bye-laws after previous

publications” [Section 23]: Where, by any Central Act or Regulation, a power to
make rules or bye-laws is expressed to be given subject to the condition of the
rules or bye-laws being made after previous publication, then the following
provisions shall apply, namely:-

(1) The authority having power to make the rules or bye-laws shall, before
making them, publish a draft of the proposed rules or bye-laws for the
information of persons likely to be affected thereby;
(2) The publication shall be made in such manner as that authority deems to be
sufficient, or, if the condition with respect to previous publication so
requires, in such manner as the Government concerned prescribes;
(3) There shall be published with the draft a notice specifying a date on or after
which the draft will be taken into consideration;
(4) The authority having power to make the rules or bye-laws, and, where the
rules or bye-laws are to be made with the sanction, approval or concurrence
of another authority, that authority also shall consider any objection or
suggestion which may be received by the authority having power to make
the rules or bye-laws from any person with respect to the draft before the
date so specified;
(5) The publication in the Official Gazette of a rule or bye-law purporting to
have been made in exercise of a power to make rules or bye-laws after
previous publication shall be conclusive proof that the rule or bye-laws has
been duly made.
Section 23(5) raises a conclusive presumption that after the publication of the
rules in the Official Gazette, it is to be inferred that the procedure for making the
rules had been followed. Any irregularities in the publication of the draft cannot
therefore be questioned.
It is also open to the authority publishing the draft and entitled to make the rules
to make suitable changes in the draft before finally publishing them. It is not
necessary for that authority to re-publish the rules in the amended form before
their final issue so long as the changes made are ancillary to the earlier draft and
cannot be regarded as foreign to the subject matter thereof.
“Continuation of orders etc., issued under enactments repealed and re-

enacted” [Section 24]: Where any Central Act or Regulation, is, after, the
commencement of this Act, repealed and re-enacted with or without
modification, then unless it is otherwise expressly provided any appointment
notification, order, scheme, rule, form or bye-law, made or issued under the
repealed Act, continue in force, and be deemed to have been made or issued

under the notification, order, scheme, rule, form or bye-law, made or issued under
the provisions so re-enacted and when any Central Act or Regulation, which, by a
notification under section 5 or 5A of the Scheduled District Act, 1874, or any lik e
law, has been extended to any local area, has, by a subsequent notification, been
withdrawn from the re-extended to such area or any part thereof, the provisions
of such Act or Regulation shall be deemed to have been repealed and re-enacted
in such area or part within the meaning of this section.
This section accords statutory recognition to the general principle that if a statute
is repealed and re-enacted in the same or substantially the same terms, the re-
enactment neutralizes the previous repeal and the provisions of the repealed Act
which are re-enacted, continue in force without interruption. If however, the
statute is repealed and re-enacted in somewhat different terms, the amendments
and modifications operate as a repeal of the provisions of the repealed Act which
are changed by and are repugnant to the repealing Act.
In State of Punjab v. Harnek Singh, AIR 2002 SC 1074, It was held that
investigation conducted by Inspectors of Police, under the authorization of
notification issued under Prevention of Corruption Act, of 1947 will be proper and
will not be quashed under new notification taking the above power, till the
aforesaid notification is specifically superseded or withdrawn or modified under
the new notification.
The Mines Act of 1923 was repealed and replaced by the Mines Act of 1952. Rules
made under the repealed Act must be deemed to continue in force by virtue of
this section until superseded.
Where an Act is repealed and re-enacted, the fact that the repealed Act stated
that rules made under that Act shall have effect as if enacted in the Act does not
mean that the rules automatically disappear with the repeal of the Act under
which they are made and that there is no room for the application of this section .
10. MISCELLANEOUS [SECTION 25 TO SECTION 30]

“Recovery of fines” [Section 25]: Section 63 to 70 of the Indian Penal Code and
the provisions of the Code of Criminal Procedure for the time being in force in
relation to the issue and the execution of warrants for the levy of fines shall apply

to all fines imposed under any Act, Regulation, rule or bye-laws, unless the Act,
Regulation, rule or bye-law contains an express provision to the contrary.
“Provision as to offence punishable under two or more enactments” [Section
26]: Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished
under either or any of those enactments, but shall not be punished twice for the
same offence.
Article 20(2) of the Constitution states that no person shall be prosecuted and
punished for the same offence more than once.
According to the Supreme Court, a plain reading of section 26 shows that there is
no bar to the trial or conviction of an offender under two enactments, but there is
only a bar to the punishment of the offender twice for the same offence. In other
words, the section provides that where an act or omission constitutes an offence
under two enactments, the offender may be prosecuted and punished under
either or both the enactments but shall not be liable to be punished twice for the
same offence.
In State of M.P. v. V.R. Agnihotri, AIR 1957 SC 592 it was held that when there are
two alternative charges in the same trial, e.g., section 409 of the Indian Penal
Code and section 5(2) of the Prevention of Corruption Act, the fact that the
accused is acquitted of one of the charges will not bar his conviction on the other.
Provisions of Section 26 and Article 20(2) of the Constitution apply only when
the two offences which form the subject of prosecution is the same, i.e., the
ingredients which constitute the two offences are the same. If the offences under
the two enactments are distinct and not identical, none of these provisions will
apply.
“Meaning of Service by post” [Section 27]: Where any
legislation or regulation requires any document to be served by
post, then unless a different intention appears, the service shall
be deemed to be effected by:
(i) Properly addressing
(ii) Pre-paying, and

(iii) Posting by registered post.

A letter containing the document to have been effected at the time at which the
letter would be delivered in the ordinary course of post.
In United Commercial Bank v. Bhim Sain Makhija, AIR 1994 Del 181: A notice when
required under the statutory rules to be sent by ‘registered post
acknowledgement due’ is instead sent by ‘registered post’ only, the protection of
presumption regarding serving of notice under ‘registered post’ under this
section of the Act neither tenable not based upon sound exposition of law.
In Jagdish Singh.v Natthu Singh, AIR 1992 SC 1604, it was held that where a notice
is sent to the landlord by registered post and the same is returned by the tenant
with an endorsement of refusal, it will be presumed that the notice has been
served.
In Smt. Vandana Gulati v. Gurmeet Singh alias Mangal Singh, AIR 2013 All 69, it
was held that where notice sent by registered post to person concerned at proper
address is deemed to be served upon him in due course unless contrary is
proved. Endorsement ‘not claimed/not met’ is sufficient to prove deemed service
of notice.
“Citation of enactments” [Section 3(28)]: (1) In any Central Act or Regulation,
and in any rule, bye law, instrument or document, made under, or with reference
to any such Act or Regulation, any enactment may be cited by reference to the
title or short title (if any) conferred thereon or by reference to the number and
years thereof, and any provision in an enactment may be cited by reference to the
section or sub-section of the enactment in which the provision is contained.
(2) In this Act and in any Central Act or Regulation made after the
commencement of this Act, a description or citation of a portion of another
enactment shall, unless a different intention appears, be construed as including
the word, section or other part mentioned or referred to as forming the
beginning and as forming the end of the portion comprised in the description or
citation.
“Saving for previous enactments, rules and bye laws” [Section 29]: The
provisions of this Act respecting the construction of Acts, Regulations, rules or
bye-laws made after commencement of this Act shall not affect the construction
of any Act, Regulation, rule or bye-law is continued or amended by an Act,
Regulation, rule or bye-law made after the commencement of this Act.

“Application of Act to Ordinances” [Section 30]: In this Act the expression

Central Act, wherever it occurs, except in Section 5 and the word ‘Act’ in clauses
(9), (13), (25), (40), (43), (53) and (54) of section 3 and in section 25 shall be
deemed to include Ordinance made and promulgated by the Governor General
under section 23 of the Indian Councils Act, 1861 or section 72 of the
Government of India Act, 1915, or section 42 of the Government of India Act,
1935 and an Ordinance promulgated by the President under Article 123 of the
Constitution.
SUMMARY
 The General Clauses Act, 1897 intends to provide general definitions which
shall be applicable to all Central Acts and Regulations where there is no
definition in those Acts.
 Every Act has a preamble which expresses the scope, object and purpose of
the Act. It is the main source for understanding the intention of lawmaker
behind the Act.
 Financial year shall mean the year commencing on the first day of April.
 Where legislation has not specifically mentioned the date to come into
force, it shall be implemented on the day it receives the assent of the
President of India.
 Whenever an Act is repealed, it must be considered as if it had never

existed.
 Where by any legislation, any act or proceeding is directed or allowed to be

done or taken in any court or office on a certain day or within a prescribed
period then, if the Court or office is closed on that day, the act or
proceeding shall be considered as done or taken in due time if it is done or
taken on the next day afterwards on which the Court or office is open.
 In any legislation, words importing the masculine gender shall be taken to

include females, and words in singular shall include the plural and vice
versa.
 Power to appoint includes power to appoint ex-officio.
 Power to appoint includes power to suspend or dismiss.

 A law relative to the chief or superior of an office shall apply to the deputies
or subordinates lawfully performing the duties of that office in the place of
their superior.
 Where any legislation or regulation requires any document to be served by

post, then unless a different intention appears, the service shall be deemed
to be effected by properly addressing, pre-paying, and posting by
registered post.
TEST YOUR KNOWLEDGE

MCQ based Questions
1. Which of the following is not an Immovable Property?
(a) Land
(b) Building
(c) Timber
(d) Machinery permanently attached to the land
2. Where an act of parliament does not expressly specify any particular day as
to the day of coming into operation of such Act, then it shall come into
operation on the day on which:
(a) It receives the assent of the President
(b) It receives the assent of the Governor General
(c) It receives assent of both the houses of Parliament
(d) It receives assent of the Prime Minister
3. An act or omission constitutes an offence under two enactments. Referring to
the provisions of the General Clauses Act, 1897, state which among the
following is correct in such a situation:
(a) The offender shall be liable to be prosecuted and punished under that
enactment only, which was enacted last and not under the other enactment.
(b) The offender shall be liable to be prosecuted and punished under that
enactment only, which was enacted first and not under the other
enactment.

(c) The offender shall be liable to be prosecuted and punished under both
the enactments.
(d) The offender shall be liable to be prosecuted and punished under that
either or any of those enactments, but shall not be punished twice for
the same offence.
4. Every Act has a ………. which expresses the scope, object and purpose of the Act. It
is the main source for understanding the intention of lawmaker behind the Act.
(a) Definition
(b) Preamble
(c) Affidavit
(d) Document
5. What among the following could be considered in the term ‘Immovable
Property’ as defined under section 3(26) of the General Clauses Act, 1897?
(i) The soil for making bricks
(ii) Right to catch fish
(iii) Right to drain water
(iv) Doors and Windows of the house
(a) Only (i) and (iv)
(b) Only (i), (ii) and (iv)
(c) Only (i) and (ii)
(d) Only (ii), (iii) and (iv)
1. What is “Financial Year” under the General Clauses Act, 1897?
2. What is “Immovable Property” under the General Clauses Act, 1897?

3. As per the provisions of the Companies Act, 2013, a whole time Key
Managerial Personnel (KMP) shall not hold office in more than one company
except its subsidiary company at the same time. Referring to the section 13 of
the General Clauses Act, 1897, examine whether a whole time KMP can be
appointed in more than one subsidiary company?

4. A notice when required under the Statutory rules to be sent by “registered

post acknowledgment due” is instead sent by “registered post” only. Whether
the protection of presumption regarding serving of notice by “registered post”
under the General Clauses Act is tenable? Referring to the provisions of the
General Clauses Act, 1897, examine the validity of such notice in this case.
5. X owned a land with fifty tamarind trees. He sold his land and the timber
(obtained after cutting the fifty trees) to Y. X wants to know whether the sale
of timber tantamount to sale of immovable property. Advise him with
reference to provisions of the General Clauses Act, 1897.
6. What is the meaning of service by post as per provisions of the General

Clauses Act, 1897?
7. Komal Ltd. declares a dividend for its shareholders in its AGM held on 27 th
September, 2022. Referring to provisions of the General Clauses Act, 1897 and
the Companies Act, 2013, advice:
(i) The dates during which Komal Ltd. is required to pay the dividend?
(ii) The dates during which Komal Ltd. is required to transfer the unpaid or
unclaimed dividend to unpaid dividend account?
8. ‘Repeal’ of provision is different from ‘deletion’ of provision. Explain as per the
General Clauses Act, 1897.
9. The Companies Act, 2013 provides that the amount of dividend remained
unpaid/unclaimed on expiry of 30 days from the date of declaration of
dividend shall be transferred to unpaid dividend account within 7 days from
the date of expiry of such period of 30 days. If the expiry date of such 30 days
is 30.10.2022, decide the last date on or before which the unpaid/unclaimed
dividend amount shall be required to be transferred to a separate bank
account in the light of the relevant provisions of the General Clauses Act,
1897?
10. Referring to the provisions of the General Clauses Act, 1897, find out the day/
date on which the following Act/Regulation comes into force. Give reasons
also,
(1) An Act of Parliament which has not specifically mentioned a particular

date.

(2) The Securities and Exchange Board of India (Issue of Capital and
Disclosure Requirements) (Fifth Amendment) Regulations, 2015 was
issued by SEBI vide Notification dated 14 th August, 2015 with effect from
1st January, 2016.
ANSWERS
1. (c) Timber
2. (a) It receives the assent of the President
3. (d) The offender shall be liable to be prosecuted and punished
under that either or any of those enactments, but shall not be
punished twice for the same offence
4. (b) Preamble
5. (b) Only (i), (ii) and (iv)

1. According to Section 3(21) of the General Clauses Act, 1897, ‘Financial Year’
shall mean the year commencing on the first day of April.
The term year has been defined under Section 3(66) as a year reckoned
according to the British calendar. Thus, as per the General Clauses Act, 1897,
Year means calendar year which starts from January to December.
Hence, in view of both the above definitions, it can be concluded that
Financial Year is a year which starts from first day of April to the end of
March.
2. According to Section 3(26) of the General Clauses Act, 1897, ‘Immovable
Property’ shall include:
(i) Land,
(ii) Benefits to arise out of land, and
(iii) Things attached to the earth, or
(iv) Permanently fastened to anything attached to the earth.

For example, trees are immovable property because trees are benefits arise
out of the land and attached to the earth. However, timber is not
immovable property as the same are not permanently attached to the earth.
In the same manner, buildings are immovable property.
3. Section 203(3) of the Companies Act, 2013 provides that whole time key
managerial personnel shall not hold office in more than one company
except in its subsidiary company at the same time. With respect to the issue
that whether a whole time KMP of holding company be appointed in more
than one subsidiary companies or can be appointed in only one subsidiary
company.
It can be noted that Section 13 of the General Clauses Act, 1897 provides
that the word ‘singular’ shall include the ‘plural’, unless there is anything
repugnant to the subject or the context. Thus, a whole time key managerial
personnel may hold office in more than one subsidiary company as per the
present law.
4. As per the provisions of Section 27 of the General Clauses Act, 1897, where
any legislation or regulation requires any document to be served by post,
then unless a different intention appears, the service shall be deemed to be
effected by:
(i) Properly addressing,
(ii) Pre-paying, and
(iii) Posting by registered post.
A letter containing the document to have been effected at the time at which
the letter would be delivered in the ordinary course of post.
Therefore, in view of the above provision, since the statutory rules itself
provides about the service of notice that a notice when required under said
statutory rules to be sent by ‘registered post acknowledgement due’, then, if
notice was sent by ‘registered post’ only it will not be the compliance of
said rules. However, if such provision was not provided by such statutory
rules, then service of notice if by registered post only shall be deemed to be
effected.
Furthermore, in similar case of In United Commercial Bank v. Bhim Sain
Makhija, AIR 1994 Del 181, a notice when required under the statutory rules

to be sent by ‘registered post acknowledgement due’ is instead sent by

‘registered post’ only, the protection of presumption regarding serving of
notice under ‘registered post’ under this section of the Act is neither tenable
nor based upon sound exposition of law.
5. “Immovable Property” [Section 3(26) of the General Clauses Act, 1897]:
‘Immovable Property’ shall include:
(i) Land,
(ii) Benefits to arise out of land, and
(iii) Things attached to the earth, or
(iv) Permanently fastened to anything attached to the earth.
It is an inclusive definition. It contains four elements: land, benefits to arise
out of land, things attached to the earth and things permanently fastened
to anything attached to the earth. Where, in any enactment, the definition
of immovable property is in the negative and not exhaustive, the definition
as given in the General Clauses Act will apply to the expression given in that
enactment.
In the instant case, X sold Land along with timber (obtained after cutting
trees) of fifty tamarind trees of his land. According to the above definition,
Land is immovable property; however, timber cannot be immovable
property since the same are not attached to the earth.
6. “Meaning of Service by post” [Section 27 of the General Clauses Act,
1897]: Where any legislation or regulation requires any document to be
served by post, then unless a different intention appears, the service shall
be deemed to be effected by:
(i) properly addressing
(ii) pre-paying, and
(iii) posting by registered post.
A letter containing the document to have been effected at the time at which
the letter would be delivered in the ordinary course of post.
7. As per section 9 of the General Clauses Act, 1897, for computation of time,
the section states that in any legislation or regulation, it shall be sufficient,

for the purpose of excluding the first in a series of days or any other period
of time to use the word “from” and for the purpose of including the last i n a
series of days or any other period of time, to use the word “to”.
(i) Payment of dividend: In the given instance, Komal Ltd. declares
dividend for its shareholder in its Annual General Meeting held on
27/09/2022. Under the provisions of Section 127 of the Companies
Act, 2013, a company is required to pay declared dividend within 30
days from the date of declaration, i.e. from 28/09/2022 to 27/10/2022.
In this series of 30 days, 27/09/2022 will be excluded and last 30 th day,
i.e. 27/10/2022 will be included. Accordingly, Komal Ltd. will be
required to pay dividend within 28/09/2022 and 27/10/2022 (both
days inclusive).
(ii) Transfer of unpaid or unclaimed divided: As per the provisions of

Section 124 of the Companies Act, 2013, where a dividend has been
declared by a company but has not been paid or claimed within 30
days from the date of the declaration, to any shareholder entitled to
the payment of the dividend, the company shall, within 7 days from
the date of expiry of the said period of 30 days, transfer the total
amount of dividend which remains unpaid or unclaimed to a special
account to be opened by the company in that behalf in any scheduled
bank to be called the “Unpaid Dividend Account” (UDA). Therefore,
Komal Ltd. shall transfer the unpaid/unclaimed dividend to UDA within
the period of 28th October, 2022 to 3 rd November, 2022 (both days
inclusive).
8. In Navrangpura Gam Dharmada Milkat Trust v. Rmtuji Ramaji, AIR 1994 Guj
75 case, it was decided that ‘Repeal’ of provision is in distinction from
‘deletion’ of provision. ‘Repeal’ ordinarily brings about complete
obliteration (abolition) of the provision as if it never existed, thereby
affecting all incoherent rights and all causes of action related to the
‘repealed’ provision while ‘deletion’ ordinarily takes effect from the date of
legislature affecting the said deletion, never to effect total effecting or
wiping out of the provision as if it never existed.
9. Section 9 of the General Clauses Act, 1897 provides that, for computation of
time, in any legislation or regulation, it shall be sufficient, for the purpose of

excluding the first in a series of days or any other period of time to use the
word “from” and for the purpose of including the last in a series of days or
any other period of time, to use the word “to”.
As per the facts of the question the company shall transfer the
unpaid/unclaimed dividend to unpaid dividend account within the period of
7 days. 30 th October, 2022 will be excluded and 6 th November 2022 shall be
included, i.e. 31st October, 2022 to 6 th November, 2022 (both days
inclusive).
10. (1) According to section 5 of the General Clauses Act, 1897, where any
Central Act has not specifically mentioned a particular date to come
into force, it shall be implemented on the day on which it receives the
assent of the President in case of an Act of Parliament.
(2) If any specific date of enforcement is prescribed in the Official
Gazette, the Act shall come into enforcement from such date.
Thus, in the given question, the SEBI (Issue of Capital and Disclosure
Requirements) (Fifth Amendment) Regulations, 2015 shall come into
enforcement on 1 st January, 2016 rather than the date of its
notification in the Gazette.

CHAPTER a
2
INTERPRETATION
OF STATUTES
LEARNING OUTCOMES

 Gain knowledge about the need for interpretation of
statutes.
 Explain the various Rules of Interpretation of Statutes.
 Describe about the various internal and external aids to
interpretation.
 Comprehend the Rules of Interpretation of Deeds and
Documents.

CHAPTER OVERVIEW
Introduction of relevant
terms
Importance of
interpretation of
Statutes
Primary Rules
Rules of Interpretation
Interpretation of
statutes, deeds and Secondary Rules
documents
Internal aids
Aids to interpretation
External aids
Rules of interpretation
of deeds and
documents
1. INTRODUCTION
As a Chartered Accountant in practice or in service, you will be required to read
various laws and statutes. Often these enactments may be capable of more than
one interpretation. It is in this context that awareness of interpretation as a skill
becomes relevant. This chapter will enable you to understand certain rules of
interpretation as well as the various internal and external aids to interpretation.
We shall also discuss the art of interpreting deeds and documents.
This study relates to ‘Interpretation of Statutes, Deeds and Documents’. So, it
is necessary that we understand what these words and certain other terms
denote.
‘Statute’: To the common man the term ‘Statute’ generally means laws and
regulations of various kinds irrespective of the source from which they emanate.

The word “statute” is now synonymous with an Act of Parliament. Broadly

speaking it is the written law that the legislature establishes directly. Maxwell
defines “statute” as the will of the legislature. In India ‘statute’ means an enacted
law i.e. the law either enacted by the Parliament or by the state legislature.
In India the constitution provides for the passing of a bill in Lok Sabha and Rajya
Sabha and finally after obtaining the assent of the President of India to it, it
becomes an Act of Parliament or Statute.
Thus, that which originates through legislation is called “enacted law” or statute
as against “unenacted” or “unwritten law”.
However, the Constitution does not use the terms ‘statute’ though one finds the
terms ‘law’ used in many places. The term ‘law’ is defined as including any
ordinance, order, bye- law, rule, regulation, notification, and the like.
In short ‘statute’ signifies written law as against unwritten law.

‘Document’: Generally understood, a document is a paper or other material thing
giving information, proof or evidence of anything. The Law defines ‘document’ in
a more technical form. Section 3 of the Indian Evidence Act, 1872 states that
‘document’ means any matter expressed or described upon any substance by
means of letters, figures or marks or by more than one of those means, intended
to be used, or which may be used, for the purpose of recording that matter.
Example 1: A writing is a document; any words printed, photographed are
documents.
Section 3(18) of the General Clauses Act, 1897 states that the term ‘document’ shall
include any matter written, expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means which is intended to be
used, or which may be used, for the purpose of recording this matter.
Generally, documents comprise of following four elements:
Elements of documents
Matter Record Substance means

(i) Matter—This is the first element. Its usage with the word “any” shows that the
definition of document is comprehensive.
(ii) Record—This second element must be certain mutual or mechanical device
employed on the substance. It must be by writing, expression or description.
(iii) Substance—This is the third element on which a mental or intellectual
elements comes to find a permanent form.
(iv) Means—This represents forth element by which such permanent form is
acquired and those can be letters, any figures, marks, symbols which can be
used to communicate between two persons.
‘Instrument’: In common parlance, ‘instrument’ means a formal legal document
which creates or confirms a right or records a fact. It is a formal writing of any
kind, such as an agreement, deed, charter or record, drawn up and executed in a
technical form. It also means a formal legal document having legal effect, either
as creating a right or liability or as affording evidence of it.
Section 2(14) of the Indian Stamp Act, 1899 states that ‘instrument’ includes every
document by which any right or liability is or purports to be created, transferred,
extended, extinguished or recorded.
‘Deed’: The Legal Glossary defines ‘deed’ as an instrument in writing (or other
legible representation or words on parchment or paper) purporting to effect
some legal disposition. Simply stated deeds are instruments though all
instruments may not be deeds. However, in India no distinction seems to be made
between instruments and deeds.
‘Interpretation’: By interpretation is meant the process by which the Courts seek
to ascertain the meaning of the legislature through the medium of the words in
which it is expressed. Simply stated, ‘interpretation’ is the process by which the
real meaning of an Act (or a document) and the intention of the legislature in
enacting it (or of the parties executing the document) is ascertained.
Interpretation is resorted to in order to resolve any ambiguity in the statute. It is

the art of finding out the true sense of words that is to say the sense in which
their author intended to convey the subject matter.
Importance of Interpretation: Interpretation, thus, process of considerable
significance. In relation to statute law, interpretation is of importance because of
the inherent nature of legislation as a source of law. The process of statute
making and the process of interpretation of statutes take place separately from

each other, and two different agencies are concerned. Interpretation serves as
the bridge of understanding between the two.
Classification of Interpretation:
General Classification of Interpretation
Legal Doctrinal
Authentic Usual Grammatical Logical
when the court

when rule of goes beyond
when rule of interpretation the words and
when the court
interpretation is derived from tries to
applies only
is derived from some other discover the
the ordinary
the legislator source such as intention of
custom or case rules of speech the statute in
himself
law some other
way
Jolowicz, in his Lectures on Jurisprudence (1963 ed., p. 280) speaks of

interpretation thus:
Interpretation is usually said to be either ‘legal’ or ‘doctrinal’. It is ‘legal’ when
there is an actual rule of law which binds the Judge to place a certain
interpretation of the statute. It is ‘doctrinal’ when its purpose is to discover ‘real’
and ‘true’ meaning of the statute.
‘Legal’ interpretation is sub-divided into ‘authentic’ and ‘usual’. It is ‘authentic’
when rule of interpretation is derived from the legislator himself; it is ‘usual’ when
it comes from some other source such as custom or case law. Thus, when
Justinian ordered that all the difficulties arising out of his legislation should be

referred to him for decision, he was providing for ‘authentic’ interpretation, and
so also was the Prussian Code, 1794, when it was laid down that Judges should
report any doubt as to its meaning to a Statute Commission and abide by their
ruling.
‘Doctrinal’ interpretation may again be divided into two categories:
‘grammatical’ and ‘logical’. It is ‘grammatical’ when the court applies only the
ordinary rules of speech for finding out the meaning of the words used in the
statute. On the other hand, when the court goes beyond the words and tries to
discover the intention of the statute in some other way, then it is said resort to
what is called a ‘logical’ interpretation.
According to Fitzerald, interpretation is of two kinds – ‘literal’ and ‘functional’.
The literal interpretation is that which regards conclusively the verbal expression
of the law. It does not look beyond the ‘literaligis’. The duty of the Court is to
ascertain the intention of the legislature and seek for that intent in every
legitimate way, but first of all in the words and the language employed.
‘Functional’ interpretation, on the other hand, is that which departs from the
letter of the law and seeks elsewhere for some other and more satisfactory
evidence of the true intention of the legislature. In other words, it is necessary to
determine the relative claims of the letters and the spirit of the enacted law. In all
ordinary cases, the Courts must be content to accept the letter of the law as the
exclusive and conclusive evidence of the spirit of the law (Salmon:
Jurisprudence, 12th ed., pp. 131-132). It is essential to determine with accuracy
the relations which subsist between the two methods.
‘Construction’ as applied to a written statute or document means to determine
from its known elements its true meaning or the intention of its framers.
Construction involves drawing conclusions beyond the actual expressions used in
the text. This is done by referring to other parts of the enactment and the context
in which the law was made. Thus, when you construe a statute you are attempting
to ascertain the intention of the legislature.
Difference between Interpretation and Construction:
It would also be worthwhile to note, at this stage itself, the difference between
the terms ‘Interpretation’ and Construction. While more often the two terms
are used interchangeably to denote a process adopted by the courts to ascertain

the meaning of the legislature from the words with which it is expressed, these
two terms have different connotations.
Interpretation is the art of ascertaining the meaning of words and the true sense
in which the author intended that they should be understood.
It is the drawing of conclusions from a statute that lie beyond the direct
expression of the words used therein. [Bhagwati Prasad Kedia v. C.I.T, (2001)]
It is the duty of the courts to give effect to the meaning of an Act when the
meaning can be equitably gathered from the words used. Words of legal import
occurring in a statute which have acquired a definite and precise sense, must be
understood in that sense. (State of Madras v. Gannon Dunkerly Co. AIR 1958)
Thus, where the Court adheres to the plain meaning of the language used by the
legislature, it would be ‘interpretation’ of the words, but where the meaning is not
plain, the court has to decide whether the wording was meant to cover the
situation before the court. Here, the court would be resorting to ‘construction’.
Conclusions drawn by means of construction are within the spirit though not
necessarily within the letter of the law.
In practice construction includes interpretation and the terms are frequently used
synonymously.
2. WHY DO WE NEED INTERPRETATION/

CONSTRUCTION?
While every care is taken to ensure that laws framed for passing by the legislature
are free from ambiguity and absurdity, it is scarcely possible to express them in
such terms as shall be free from all ambiguity. Such a degree of precision is
perhaps unattainable. Similarly, the legislators cannot foresee all contingencies at
the time of the passing of the law. This is further compounded by the want of
views sufficiently comprehensive as to the “intention of the legislation”. It is quite
possible that the words of a statute are vague, ambiguous or reasonably capable
of more than one meaning. It is then that a need for interpretation or
construction arises.
Hence rules of interpretation are required in order to ensure just and uniform
decisions.

No better explanation can be given for the need for interpretation than that
provided by Denning L.J., that ultimate repository of legal erudition:
“It is not within human powers to foresee the manifold sets of facts which may
arise; and that, even if it were, it is not possible to provide for them in terms free
from all ambiguity. The English language is not an instrument of mathematical
precision. Our literature would be much the poorer if it were. This is where the
draftsmen of Acts of Parliament have often been unfairly criticized. A judge,
believing himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen have not provided for this
or that, or have been guilty of some or other ambiguity. It would certainly save
the judges’ trouble if Acts of Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect appears, a judge cannot simply
fold his hands and blame the draftsman. He must set to work on the constructive
task of finding the intention of Parliament, and he must do this, not only from the
language of the statute, but also from a consideration of the social conditions
which gave rise to it, and of the mischief which it was passed to remedy, and then
he must supplement the written word so as to give ‘force and life’ to the intention
of the legislature”.
It has been rightly said that a statute is the will of the legislature. The
fundamental rule of interpretation of a statute is that it should be expounded
according to the intent of those that made it. In the event of the words of the
statute being precise and unambiguous in themselves it is only just necessary to
expound those words in their natural and ordinary sense. Thus far and no further.
This is because these words distinctly indicate the intention of the legislature. The
purpose of interpretation is to discern the intention which is conveyed either
expressly or impliedly by the language used. If the intention is express, then the
task becomes one of ‘verbal construction’ alone. But in the absence of any
intention being expressed by the statute on the question to which it gives rise
and yet some intention has to be, of necessity, imputed to the legislature
regarding it, then the interpreter has to determine it by inference based on
certain legal principles. In such a case, the interpretation has to be one which is
commensurate with the public benefit. Consequently, if a statute levies a penalty
without expressly mentioning the recipient of the penalty, then, by implication, it
goes to the coffers of the State.

As we have noted earlier, ‘interpretation’ may be either ‘grammatical’ or

‘logical’. Grammatical or literal interpretation concerns itself with the words and
expressions used in a statute and only that. In other words, the emphasis in
grammatical interpretation is on “what the law says.” The Logical interpretation,
on the other hand, seeks to ascertain “what the law means”.
Normally, grammatical interpretation is the
only approach to be adopted. The court
cannot add to or modify a single word or
phrase used in an enactment. This is based on
the principle of absoluta sententia expositore
non indiget meaning “clear words need no
explanation.”
However, where the grammatical interpretation leads to a manifest absurdity or is

logically flawed, the courts can adopt the logical interpretation that will advance
the true purpose or intention of the legislation rather than reduce it to a futility.
Where there are two constructions reasonably applicable to a provision, one of
which is mechanical and based on the rules of grammar, while the other is vibrant
and more in tune with the basic intention of the Act of Parliament, the latter shall
be preferred to the former. (Arora v. State of UP)
But where the law is clear and unambiguous the court shall construe it based
on the strict grammatical meaning. The law when clear shall be strictly applied,
however harsh or burdensome it may be. The court shall administer the law as it
stands and shall not attempt an alternative interpretation based on logic that is
ostensibly just or reasonable.
3. RULES OF INTERPRETATION/ CONSTRUCTION

Over a period, certain rules of interpretation/construction have come to be well
recognized. However, these rules are considered as guides only and are not
inflexible. These rules can be broadly classified as follows:

• Rule of Literal Construction

• Rule of Reasonable Construction
• Rule of Harmonious Construction
Primary • The Rule in Heydon's Case or
Rules Mischief Rule
• Rule of Beneficial Construction
• Rule of Exceptional Construction
• Rule of Ejusdem Generis
• Doctrine of Noscitur a Sociis

Secondary
• Doctrine of Contemporanea Expositio
Rules
(A) PRIMARY RULES

(1) Rule of Literal Construction:
The first and primary rule of construction is that the intention of the legislature
must be found in the words used by the legislature itself. Thus, if the words of a
statute are capable of one construction only, then it would not be open to the
courts to adopt any hypothetical construction on the ground that such
hypothetical construction is more consistent with the alleged object and policy of
the Act.
It is a cardinal rule of construction that a statute must be construed literally and
grammatically giving the words their ordinary and natural meaning. Therefore, the
language used in the statute must be construed in its grammatical sense. The
correct course is to take the words themselves and arrive if possible, at their
meaning without reference to cases, in the first instance.
If the phraseology of a statute is clear and unambiguous and capable of one and
only one interpretation, then it would not be correct to extrapolate these words
out of their natural and ordinary sense. When the language of a statute is plain
and unambiguous it is not open to the courts to adopt any other hypothetical

construction simply with a view to carrying out the supposed intention of the
legislature.
Thus, it is the primary duty of the court to interpret the words used in legislation
according to their ordinary grammatical meaning in the absence of any ambiguity
or doubt.
Normally, where the words of a statute are in themselves clear and unambiguous,
then these words should be construed in their natural and ordinary sense and it is
not open to the court to adopt any other hypothetical construction. This is called
the rule of literal construction.
This principle is contained in the Latin maxim “absoluta sententia expositore non
indiget” which literally means “an absolute sentence or preposition needs not an
expositor”. In other words, plain words require no explanation.
Sometimes, occasions may arise when a choice has to be made between two
interpretations – one narrower and the other wider or bolder. In such a situation,
if the narrower interpretation would fail to achieve the manifest purpose of the
legislation, one should rather adopt the wider one.
When we talk of disclosure of ‘the nature of concern or interest, financial or
otherwise’ of a director or the manager of a company in the subject-matter of a
proposed motion (as referred to in section 102 of the Companies Act, 2013), we
have to interpret in its broader sense of referring to any concern or interest
containing any information and facts that may enable members to understand the
meaning, scope and implications of the items of business and to take decisions
thereon. What is required is a full and frank disclosure without reservation or
suppression, as, for instance where a son or daughter or father or mother or
brother or sister is concerned in any contract or matter, the shareholders ought
fairly to be informed of it and the material facts disclosed to them. Here a
restricted narrow interpretation would defeat the very purpose of the disclosure.
Similarly, when a matter which should have been, but has not been, provided for
in a statute cannot be supplied by courts as to do so would amount to legislation
and would not be construction.

This Rule of literal interpretation can be read and understood under the following
headings:
Natural and grammatical meaning: Statutes are to be first understood in their
natural, ordinary, or popular sense and must be construed according to their
plain, literal and grammatical meaning. If there is an inconsistency with any
express intention or declared purpose of the statute, or it involves any absurdity,
repugnancy, inconsistency, the grammatical sense must then be modified,
extended or abridged only to avoid such an inconvenience, but no further. [(State
of HP v. Pawan Kumar (2005)]
Example 2: In a question before the court whether the sale of betel leaves was
subject to sales tax. The Supreme Court held that betel leaves could not be given
the dictionary, technical or botanical meaning when the ordinary and natural
meaning is clear and unambiguous. Being the word of everyday use, it must be
understood in its popular sense by which people are conversant with it as also the
meaning which the statute dealing with the matter would attribute to it.
Therefore, the sale of betel leaves was liable to sale tax. (Ramavtar v. Assistant
Sales Tax Officer, AIR 1961 SC 1325)
Technical words are to be understood in technical sense: This point of literal
construction is that technical words are understood in the technical sense only.
In construing the word ‘practice’ in the Supreme Court Advocates Act, 1951, it was
observed that practice of law generally involves the exercise of both the functions
of acting and pleading on behalf of a litigant party. When legislature confers
upon an advocate the right to practice in a court, it is legitimate to understand
that expression as authorizing him to appear and plead as well as to act on behalf
of suitors in that court. (Ashwini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369)
(2) Rule of Reasonable Construction:
According to this Rule, the words of a statute
must be construed ‘ut res magis valeat quam
pereat’ meaning thereby that words of statute
must be construed so as to lead to a sensible
meaning. Generally, the words or phrases of a
statute are to be given their ordinary meaning.
It is only when the words of an enactment are
capable of two constructions that there is scope for interpretation or

construction. Then, that interpretation, which furthers the object, can be preferred
to that which is likely to defeat or impair the policy or object.
Similarly, when the grammatical interpretation
leads to a manifest absurdity then the courts
shall interpret the statute so as to resolve the
inconsistency and make the enactment a
consistent whole. This principle is based on the
rule that the words of a statute must be
construed reasonably so as to give effect to the enactment rather than reduce it
to a futility. This principle is contained in the Latin maxim, Interpretatio fienda
est ut res magis valeat quam pereat. In short, Statutes tatutes should be construed
grammatically.
Thus, when grammatical interpretation leads to certain absurdity, it is permissible

to depart there from and to interpret the provision of the statutes in a manner so
as to avoid that absurdity. This departure from the grammatical construction is
permissible only to the extent it avoids such absurdity and no further. This is also
called the Golden Rule of Interpretation.
Thus, if the Court finds that giving a plain meaning to the words will not be a fair
or reasonable construction, it becomes the duty of the court to depart from the
dictionary meaning and adopt the construction which will advance the remedy
and suppress the mischief provided the Court does not have to resort to
conjecture or surmise. A reasonable construction will be adopted in accordance
with the policy and object of the statute.
(3) Rule of Harmonious Construction:
It is a recognized rule of interpretation of statutes and deeds that the expressions
used therein should ordinarily be understood in a sense in which they best
harmonize with the object of the statute. The opposite of “harmony” is conflict.
Thus, this rule is applied when there is a conflict between two provisions of a
statute. Similarly, this Rule comes to our aid when there is conflict between the
provisions of a statute and the object, which the legislature had in view.
Thus, where an expression is susceptible of a narrow or technical meaning, as well
as a popular meaning, the court would be justified in assuming that the
legislature used the expression in the sense, which would carry out its objects and

reject that which renders it invalid. (New India Sugar Mills Ltd., v. Commissioner,
Sales Tax)
It is a basic rule of interpretation that if it is
possible to avoid a conflict between two
provisions on a proper construction thereof,
then it is the duty of the court to so construe
them that they are in harmony with each
other. The statute must be read as a whole
and every provision in the statute must be construed with reference to the
context and other clauses in the statute so as to make the statute a consistent
enactment and not reduce it to a futility. But where it is not possible to give effect
to both the provisions harmoniously, collision may be avoided by holding that
one section which is in conflict with another merely provides for an exception or a
specific rule different from the general rule contained in the other. A specific
rule will override a general rule. This principle is usually expressed by the
maxim, “generalia specialibus non derogant”.
But remember that this rule can be adopted only when there is a real and not
merely apparent conflict between provisions, where the words of a statute, on a
reasonable construction thereof, admit of one meaning only then such natural
meaning will prevail. The court shall not attempt an interpretation based on
equity and harmonious construction.
In some cases, the statute may give a clear indication as to which provision is
subservient and which overrides. This is done by the use of the terms “subject
to”, “notwithstanding” and “without prejudice”.
Subject to
The impact of the words “subject to” when used in a provision is that when the
same subject matter is covered by that provision and by another provision or
enactment subject to which it operates and there is a conflict between them, then
the latter will prevail over the former. This limitation cannot operate, when the
subject matter of the two provisions is not the same. Thus, a clause that uses the
words “subject to” is subservient to another.

Example 3: Section 13(2) of the Companies Act, 2013, “Any change in the name
of a company shall be subject to the provisions of sub-sections (2) and (3) of
section 4 and shall not have effect except with the approval of the Central
Government in writing.”
This implies that the any change in the name of the company has to in
accordance with the provisions of the section 4(2) and section 4(3) of the
Notwithstanding
A clause that begins with the words
“notwithstanding anything contained” is called a
non-obstante clause. Unlike the “subject to” clause, the notwithstanding clause
has the effect of making the provision prevail over others. When this term is used
then the clause will prevail over the other provision(s) mentioned therein. (K.
Parasurammaiah v. Pakari Lakshman AIR 1965 AP 220)
Example 4: A notwithstanding clause can operate at four levels.
Clause Effect Example

1. Notwithstanding any The clause will Section 42(11) of the
thing contained in override such Companies Act, 2013
another section or other section(s) / “(11) Notwithstanding
sub– section of that sub-section(s) anything contained in sub-
statute. section (9) and sub-section
(10), any private placement
issue not made in compliance
of the provisions of sub-
section (2) shall be deemed to
be a public offer and all the
provisions of this Act and the
Securities Contracts
(Regulation) Act, 1956 and the
Securities and Exchange Board
of India Act, 1992 shall be
applicable.”
2. Notwithstanding The clause will Section 8(8) of the Companies
anything contained in override the Act, 2013
a statute. entire enactment.

“(8) ……. amalgamated with

another company registered
under this section and having
similar objects, then,
notwithstanding anything to
the contrary contained in this
Act, the Central Government
may, by order, provide for
such amalgamation to form a
single company with such
constitution……”
3. Notwithstanding The clause will (i) Section 7A of the Securities
anything contained in prevail over the Contracts (Regulation) Act,
specific section(s) or other enactment. 1956
sub-section(s) or all “…and on such publication,
the provisions the rules as approved by the
contained in another Central Government shall be
statute. deemed to have been validly
made notwithstanding
anything contained in the
Companies Act, 1956.”
(ii) Section 183 of the
Companies Act, 2013
“183(1) The Board of Directors
of any company or any person
or authority exercising the
powers of the Board of
Directors of a company, or of
the company in general
meeting, may,
notwithstanding anything
contained in sections 180, 181
and section 182 or any other
provision of this Act or in the
memorandum, articles or any
other instrument relating to
the company, contribute such
amount as it thinks fit to the
National Defence Fund or any

other Fund approved by the

Central Government for the
purpose of national defence.”
4. Notwithstanding The clause will (i) Section 8 of the Securities
anything contained in override all other Contracts (Regulation)
any other law for the laws. Act,1956
time being in force. “… the rules so made are
amended shall,
notwithstanding anything to
the contrary contained in the
Companies Act, 1956, or in
any other law for the time
being in force, have effect…”.
(ii) Section 243(1B) of the
Companies Act, 2013
“Notwithstanding anything
contained in any other
provisions of this Act, or any
other law for the time being in
force, or any contract,
memorandum or articles, on
the removal of a person from
the officer of a director or any
other officer connected with
the conduct and management
of the affairs of the company,
that person shall not be
entitled to, or be paid, any
compensation for the loss or
termination of officer.”
Without prejudice
When certain particular provisions follow general provisions and when it is stated
that the particular provisions are without prejudice to those general provisions
the particular provisions would not restrict or circumscribe the operation and
generality of the preceding general provisions. In other words, the particular
provisions shall operate in addition to and not in derogation of the general
provisions.

Example 5: Section 4(3) of the Companies Act, 2013, “Without prejudice to the
provisions of sub-section (2), a company shall not be registered with a name
which contains……”
This implies that while registering (and deciding) the name of the company [as
per section 4(3)], provisions of section 4(2) shall also be operative.
(4) The Rule in Heydon’s Case or Mischief Rule:
Where the language used in a statute is capable of more than one interpretation,
the most firmly established rule for construction is the principle laid down in
Heydon’s case.
The intention of this rule is always to make such construction as shall suppress
the mischief and advance the remedy according to the true intention of the
legislation.
In Heydon’s case (1584 3 Co Rep 79 P. 637), it was laid down by the Barons of the
Exchequer that “for the true and sure interpretation of all Statutes in general, four
things are to be discerned and considered.
1. What was the law before the making of the act?
2. What was the defect, mischief, hardship caused by the earlier law?
3. How does the act of Parliament seek to resolve or cure the mischief or
deficiency?
4. What are the true reasons for the remedy?

And then the courts shall make such construction as will suppress the mischief
and advance the remedy and suppress the subtle inventions and evasions for the
continuance of the mischief.”
Thus, applying Heydon’s case courts will be bound to look at the state of the law
at the time of the passing of the enactment and not only as it then stood, but
under previous Statutes too.
In India, in Kanai Lal Paramnidhi, 1957 S.C.A 1033, the Hon’ble Supreme Court
held that the observations made by the Chief Baron and Barons of the Exchequer
in Heydon’s Case 1584 3 Co Rep. 79, have been so frequently cited with approval
by the courts administering provisions of welfare enactments that they have now
attained the status of a classic on the subject and their validity cannot be
challenged.

But the mischief rule can be applied only if there is any ambiguity in the present
law. (CIT Vs. Sodra Devi, 1957 SC 823 at 832 – 835).
Example 6: Application of this mischief rule is also well-found in the construction
of section 2(d) of the Prize Competition Act, 1955. This section defines ‘prize
competition’ as “any competition in which prizes are offered for the solution of
any puzzle based upon the building up arrangement, combination or permutation
of letters, words or figures”. The issue was whether the Act applies to
competitions which involve substantial skill and are not in the nature of gambling.
Supreme Court, after referring to the previous state of law, to the mischief that
continued under that law and to the resolutions of various states under Article
252(1) authorizing Parliament to pass the Act has stated as follows: “having
regard to the history of the legislation, the declared object thereof and the
wording of the statute, we are of opinion that the competitions which are sought
to be controlled and regulated by the Act are only those competitions in which
success does not depend on any substantial degree of skill.” (RMD
Chamarbaugwalla V. Union of India, AIR 1957 SC 628).
(5) Rule of Beneficial Construction:
This is strictly speaking not a rule but a method of interpreting a provision
liberally so as to give effect to the declared intention of the legislation. Beneficial
construction will be given to a statute, which brings into effect provisions for
improving the conditions of certain classes of people who are under privileged or
who have not been treated fairly in the past. In such cases it is permissible to give
an extended meaning to words or clauses in enactments. But this can only be
done when two constructions are reasonably possible and not when the words in
a statute are quite unequivocal.
(6) Rule of Exceptional Construction:
We have already seen that the words of a statute must be construed so as to give
a sensible meaning to them if possible. They ought to be construed ut res magis
valeat quam pereat.
In fact, Maxwell goes to the extent of stating, “notwithstanding the general rule
that full effect must be given to every word, yet if no sensible meaning can be
given to a word or phrase, or if it would defeat the real object of the enactment, it
may, or rather it should, be eliminated.”

“And” and “Or”

“And” is a particle joining words and sentences and expressing the relation of
connection or addition. The word “and” is normally conjunctive. In its
conjunctive sense the word is used to conjoin words, clauses or sentences,
signifying that something is to follow in addition to that, which precedes.
The word “or” is a disjunctive particle that marks an alternative, generally
corresponding to “either”, as “either this or that”.
Can “and” be read as “or” and vice versa?
The word “and” is normally conjunctive, while “or” is disjunctive. But sometimes
“and” is read as “or” and vice versa to give effect to the manifest intention of the
legislature as disclosed from the context. (Municipal Council v. Bishandas
Nathumal AIR 1969 MP 147).
“And” may legitimately be construed as “or” when the intention of the legislature
is clear and when any other construction would tend to defeat such intention.
(Amulya Chandra Roy v. Pashupathi Nath AIR 1951 Cal 48).
Not only in Statutes but also in documents the two words “and” and “or” are
sometimes used synonymously and in the same sense. That would depend on the
context and meaning of other provisions in the same statute or document.
Similarly, where statements or stipulations are coupled by “and/or” they are to
read either disjunctively or conjunctively.
“May”, “Must” and “Shall”
Let us first appreciate the distinction between mandatory and directory
provisions. Where the enactment or provision prescribes that the contemplated
action be taken without any option or discretion, then such statute or provision or
enactment will be called mandatory. Where, the acting authority is vested with
discretion, choice or judgment, the statute or provision will be called directory. In
deciding whether the statute is directory or mandatory, the question is whether
there is anything that makes it the duty of the person on whom the power is
conferred to exercise that power. If it is so then the Statute is a mandatory one;
otherwise it is directory.
The words ‘may’, ‘shall’, and ‘must’ should initially be deemed to have been used
in their natural and ordinary sense.

‘May’ signifies permission and implies that the authority has been allowed
discretion. “Shall” in the normal sense imports a command. ‘Must’ is doubtlessly
a word of command. In all cases, however, the intention of the legislature will
guide the interpreter in his search of meaning.
The question as to whether a statute is mandatory depends upon the intent of the
legislature and not upon the language in which the intent is clothed.
 In cases where the normal significance of imperative and permissive terms
leads to absurd, inconvenient or unreasonable results, they should be
discarded.
 “May” though permissive sometimes has compulsory force and is to be read
as shall. Although it is well – settled that ordinarily the word ‘may’ is always
used in a permissive sense, there may be circumstances where this word will
have to be construed as having been used in a mandatory or compulsory
sense.
Where the word ‘may’ has been used as implying a requisite condition to be
fulfilled, the court will and ought to exercise the powers which it should and in
such a case the word ‘may’ will have a compulsory force.
“May,” observed Cotton, L.J., “can never mean ‘must’ so long as the English
language retains its meaning; but it gives a power and then it may be a question,
in what case, when any authority or body has a power given to it by the word
‘may’ it becomes its duty to exercise that power.” [In re Baker Nichols v. Baker
(1890) 44 Ch. D. 262].
“Shall” though mandatory is to be read as may.
It is well – settled that the use of the word ‘shall’ does not always mean that the
enactment is obligatory or mandatory; it depends upon the context in which the
word ‘shall’ occurs and the other circumstances.
The employment of the auxiliary verb ‘shall’ is inconclusive and similarly the mere
absence of the imperative is not conclusive either.
The question whether any requirement is mandatory or directory has to be
decided not merely on the basis of any specific provision which, for instance, sets
out the consequences of the omission to observe the requirement, but on the
purpose for which the requirement has been enacted, particularly in the context
of the other provisions of the Act and the general scheme thereof. It would, inter

alia, depend on whether the requirement is insisted on as a protection, for the

safeguarding of the right of liberty of person or of property that the action might
involve.
(7) Rule of Ejusdem Generis:
The term ‘ejusdem generis’ means ‘of the same
kind or species’. Simply stated, the rule is as
follows:
Where specific words pertaining to a class or category or genus are followed

by general words, the general words shall be construed as limited to the
things of the same kind as those specified.
This rule applies when:
1. The statute contains an enumeration of specific words
2. The subject of enumeration constitutes a class or category;
3. That class or category is not exhausted by the enumeration
4. General terms follow the enumeration; and
5. There is no indication of a different legislative intent.
The rule of ejusdem generis is not an absolute rule of law but only a part of a
wider principle of construction and therefore this rule has no application where
the intention of the legislature is clear.
Exceptions:
1. If the preceding term is general, as well as that which follows this rule
cannot be applied.
2. Where the particular words exhaust the whole genus.
3. Where the specific objects enumerated are essentially diverse in character.

4. Where there is an express intention of legislature that the general term shall
not be read ejusdem generis the specific terms.
• This rule has to be applied judiciously. This rule may be understood

as an attempt to settle a conflict between specific and general words.

• The fifth ground contained in Section 271 (e) of the Companies Act,
2013 shall not be read ejusdem generis the earlier five although it is a
general phrase following specific phrases.
• This is because the earlier grounds are essentially diverse in character.
Rule of Ejusdem Generis Applies when-

Statute contains an enumeration of
specific words
The subject of enumeration constitutes

a class or category
That class or category is not exhausted

by the enumeration
The general terms follow enumeration,

and
There is no indication of a different

legislative intent
(B) OTHER (SECONDARY) RULES OF INTERPRETATION

(1) Doctrine of Noscitur a Sociis
Noscitur a Sociis means that when two or more
words that are susceptible of analogous meaning,
are coupled together they are understood to be
used in their cognate sense. They take, as it were,
their colour from each other, that is the meaning of the more general word being
restricted to a sense analogous to that of the less general.
Examples of the principal of Noscitur a Sociis are as follows:
Fresh orange juice is not a fruit juice.
While dealing with a Purchase Tax Act, which used the expression “manufactured
beverages including fruit-juices and bottled waters and syrups”.

It was held that the description ‘fruit juices’ as occurring therein should be
construed in the context of the preceding words and that orange-juice
unsweetened and freshly pressed was not within the description. (Commissioners.
v. Savoy Hotel, (1966) 2 All. E.R. 299)
Private Dispensary of a doctor is not a commercial establishment
In dealing with the definition of commercial establishment in Section 2 (4) of the
Bombay Shops and Establishments Act, 1948, which reads, “commercial
establishment means an establishment which carries on any business, trade or
profession”, the word ‘profession’ was construed with the associated words
‘business’ and ‘trade’ and it was held that a private dispensary of a doctor was not
within the definition. (Dr. Devendra M. Surti v. State of Gujrat, A.I.R. 1969 SC 63)
(2) Doctrine of Contemporanea Expositio
This doctrine is based on the concept that a
statute or a document is to be interpreted
by referring to the exposition it has received
from contemporary authority. The maxim
“Contemporanea Expositio est optima et
fortissinia in lege” means “contemporaneous
exposition is the best and strongest in the
law.” This means a law should be understood in the sense in which it was
understood at the time when it was passed.
The maxim “optima legum interpres est consuetude”
simply means, “Custom is the best interpreter of law”.
Thus, the court was influenced in its construction of a
statute of Anne by the fact that it was that which had
been generally considered as the true one for one
hundred and sixty years. (Cox Vs. Leigh 43 LJQB 123).
But remember that this maxim is to be applied for construing ancient statutes, but
not to Acts that are comparatively modern.

4. INTERNAL AIDS TO INTERPRETATION/

CONSTRUCTION
The various parts of an enactment enumerated below may be referred to while
interpreting or construing an enactment. They are referred to as internal aids to
interpretation and can be of immense help in interpreting/construing the
enactment or any of its parts.
Long Title
Read the
Statute as Preamble
a Whole
Schedules Heading
Internal aids
to
construction
Marginal
Explanation
Notes
Definitional
Proviso
Sections
Illustrations
(a) Long Title:
An enactment would have what is known as a ‘Short Title’ and also a ‘Long
Title’. The ‘Short Title’ merely identifies the enactment and is chosen merely
for convenience, the ‘Long Title’ on the other hand, describes the
enactment and does not merely identify it.

It is now settled that the Long Title of an Act is a part of the Act. We can,
therefore, refer to it to ascertain the object, scope and purpose of the Act
and so is admissible as an aid to its construction.
Example 7: Full title of the Supreme Court Advocates (Practice in High
Courts) Act, 1951 specify that this is an Act to authorize Advocates of the
Supreme Court to practice as of right in any High Court.
So, the title of a statute is an important part of the Act and may be referred
to for the purpose of ascertaining its general scope and of throwing light on
its construction, although it cannot override the clear meaning of the
enactment. [Aswini kumar Ghose v. Arabinda Bose, AIR 1952 SC]
Relevance Significance
can legitimately be used for

expresses the scope, object and construing
purpose of the Act
comprehensively
does not over-ride the plain
provision of the Act
Where if the wording of the statute

the Preamble of a Statute is a part gives rise to doubts as to its proper
of the enactment construction, the Preamble can and
ought to be referred to in order to
arrive at the proper construction.
(b) Preamble:
The Preamble expresses the scope, object and purpose of the Act more
comprehensively than the Long Title. The Preamble may recite the ground
and the cause of making a statute and the evil which is sought to be
remedied by it.
Like the Long Tile, the Preamble of a Statute is a part of the enactment and
can legitimately be used for construing it. However, the Preamble does not
over-ride the plain provision of the Act but if the wording of the statute

gives rise to doubts as to its proper construction, for example, where the
words or phrase have more than one meaning and a doubt arises as to
which of the two meanings is intended in the Act, the Preamble can and
ought to be referred to in order to arrive at the proper construction.
In short, the Preamble to an Act discloses the primary intention of the
legislature but can only be brought in as an aid to construction if the
language of the statute is not clear. However, it cannot override the
provisions of the enactment.
Example 8: Use of the word ‘may’ in section 5 of the Hindu Marriage Act,
1955 provides that “a marriage may be solemnized between two Hindus…..”
has been construed to be mandatory in the sense that both parties to the
marriage must be Hindus as defined in section 2 of the Act. It was held that
a marriage between a Christian male and a Hindu female solemnized under
the Hindu Marriage Act was void. This result was reached also having regard
to the preamble of the Act which reads: ‘An Act to amend and codify the
law relating to marriage among Hindus’ [Gullipoli Sowria Raj v. Bandaru
Pavani, (2009)1 SCC714]
(c) Heading and Title of a Chapter:
If we glance through any Act, we would generally find that a number of its
sections referring to a particular subject are grouped together, sometimes
in the form of chapters, prefixed by headings and/or Titles. These Heading
and Titles prefixed to sections or groups of sections can legitimately be
referred to for the purpose of construing the enactment or its parts.
The headings of different portions of a Statute can be referred to determine
the sense of any doubtful expression in a section ranged under any
particular heading.
They cannot control the plain meaning of the words of the enactment
though, they may, in some cases be looked at in the light of preamble if
there is any ambiguity in the meaning of the sections on which they can
throw light.
It may be noted that headings may sometimes be referred to know the
scope of a section in the same way as the preamble.

But a heading cannot control or override a section. (Official assignee v.

chuni ram AIR 1933 BOM 51)
(d) Marginal Notes:
Marginal notes are summaries and side notes often found at the side of a
section or group of sections in an Act, purporting to sum up the effect of
that section or sections.
They are not a part of the enactment, for they were not present when the
Act was passed in Parliament but inserted after the Act has been so passed.
Hence, they are not an aid to construction.
In C.I.T. v. Ahmedbhai Umarbhai & Co. (AIR 1950 SC 134 at 141), Patanjali
Shastri, J., had declared: “Marginal notes in an Indian statute, as in an Act, of
Parliament cannot be referred to for the purpose of construing the statute”,
and the same view has been taken in many other cases. Many cases show
that reference to marginal notes may be permissible in exceptional cases for
construing a section in a statute. [Deewan Singh v. Rajendra Pd. Ardevi,
(2007)10 SCC, Sarabjit Rick Singh v. Union of India, (2008) 2 SCC]
However, marginal notes appended to Articles of the Constitution have
been held to be part of the Constitution as passed by the Constituent
Assembly and therefore have been used in construing the Articles.
(e) Definitional Sections/ Interpretation Clauses:
The legislature has the power to embody in a statute itself the definitions of
its language and it is quite common to find in the Statutes ‘definitions’ of
certain words and expressions used in the body of the statute.
When a word or phrase is defined as having a particular meaning in the
enactment, it is that meaning alone which must be given to it in interpreting
a Section of the Act unless there be anything repugnant in the context. This
is called an exhaustive definition. The Court cannot ignore an exhaustive
statutory definition and try and extract what it considers to be the true
meaning of the expression independently of it.
The purpose of a definition clause is two-fold: (i) to provide a key to the
proper interpretation of the enactment, and (ii) to shorten the language of
the enacting part by avoiding repetition of the same words contained in the
definition part every time the legislature wants to refer to the expressions
contained in the definition.

to shorten the language of the

to provide a key to the proper enacting part by avoiding
interpretation of the enactment repetition of the same words
contained in the definition part.
Construction of definitions may be understood under the following

headings:
(i) Restrictive and extensive definitions
(ii) Ambiguous definitions
(iii) Definitions subject to a contrary context

(i) Restrictive and extensive definitions: The definition of a word or
expression in the definition section may either be restricting of its
ordinary meaning or may be extensive of the same.
When a word is defined to ‘mean’ such and such, the definition is
‘prima facie’ restrictive and exhaustive we must restrict the meaning of
the word to that given in the definition section.
But where the word is defined to ‘include’ such and such, the
definition is ‘prima facie’ extensive: here the word defined is not
restricted to the meaning assigned to it but has extensive meaning
which also includes the meaning assigned to it in the definition
section.
We may also find a word being defined as ‘means and includes’ such
and such. In this case, the definition would be exhaustive.
On the other hand, if the word is defined ‘to apply to and include’,
the definition is understood as extensive.
Example 9: The usage of word ‘any’ in the definition connotes
extension for ‘any’ is a word of every wide meaning and prima facie
the use of it excludes limitation.

It has been a universally accepted principle that where an expression

is defined in an Act, it must be taken to have, throughout the Act, the
meaning assigned to it by the definition, unless by doing so any
repugnancy is created in the subject or context.
Example 10: Inclusive definition of lease given under section 2(16)(c)
of the Stamp Act, 1899 has been widely construed to cover transaction
for the purpose of Stamp Act which may not amount to a lease under
section 105 of the Transfer of property Act, 1882. [State of
Uttarakhand v. Harpal Singh Rawat, (2011) 4 SCC 575]
Section 2(m) of the Consumer Protection Act, 1986 contains an inclusive
definition of ‘person’. It has been held to include a ‘company’ although
it is not specifically named therein [Karnataka Power Transmission
Corporation v. Ashok Iron Works Pvt. Ltd., (2009)3 SCC 240]
A definition section may also be worded as ‘is deemed to include’
which again is an inclusive or extensive definition as such a words are
used to bring in by a legal fiction something within the word defined
which according to its ordinary meaning is not included within it.
Example 11: If A is deemed to be B, compliance with A is in law
compliance with B and contravention of A is in law contravention of B.
(ii) Ambiguous definitions: Sometime, we may find that the definition

section may itself be ambiguous, and so it may have to be interpreted
in the light of the other provisions of the Act and having regard to the
ordinary meaning of the word defined. Such type of definition is not
to be read in isolation. It must be read in the context of the phrase
which it defines, realising that the function of a definition is to give
accuracy and certainty to a word or phrase which would otherwise be
vague and uncertain but not to contradict it or depose it altogether.
Example 12: Termination of service of a seasonal worker after the
work was over does not amount to retrenchment as per the Industrial
Disputes Act, 1947. [Anil Bapurao Karase v. Krishna Sahkari Sakhar
Karkhana, AIR 1997 SC 2698]. But the termination of employment of a
daily wager who is engaged in a project, on completion of the project
will amount to retrenchment if the worker had not been told when
employed that his employment will end on completion of the project.
[S.M. Nilajkarv Telecom District Manager Karnataka, (2003)4 SCC].

(iii) Definitions subject to a contrary context: When a word is defined to

bear a number of inclusive meanings, the sense in which the word is
used in a particular provision must be ascertained from the context of
the scheme of the Act, the language of the provision and the object
intended to be served thereby.
(f) Illustrations:
We would find that many, though not all, sections have illustrations
appended to them. These illustrations follow the text of the Sections and,
therefore, do not form a part of the Sections. However, illustrations do form
a part of the statute and are considered to be of relevance and value in
construing the text of the sections. However, illustrations cannot have the
effect of modifying the language of the section and can neither curtail nor
expand the ambit of the section.
Example 13: In holding that section 73 of the Indian Contract Act, 1872
does not permit the award of interest as damages for mere detention of
debt, the privy Council rejected the argument that illustration given in the
Act can be used for arriving at a contrary result. It was observed that nor
can an illustration have the effect of modifying the language of the section
which alone forms the enactment.
(g) Proviso:
The normal function of a proviso is to except something out of the
enactment or to qualify something stated in the enactment which would be
within its purview if the proviso were not there. Usually, a proviso is
embedded in the main body of the section and becomes an integral part of
it. Provisos that are so included begin with the words, “provided that”. The
effect of the proviso is to qualify the preceding enactment which is
expressed in terms which are too general. As a general rule, a proviso is
added to an enactment to qualify or create an exception to what is in the
enactment. Ordinarily a proviso is not interpreted as stating a general rule.
• Exception clauses are intended to restrain the enacting clause to
particular cases.
• Savings clause is used to preserve from destruction certain rights,
remedies, or privileges already existing.

It is a cardinal rule of interpretation that a proviso or exception to a

particular provision of a statute only embraces the field which is covered by
the main provision. It carves out an exception to the main provision to
which it has been enacted as a proviso and to no other. (Ram Narain Sons
Ltd. vs. Assistant Commissioner of Sales Tax, AIR 1955 SC 765).
Distinction between Proviso, exception and saving Clause
‘Proviso’ is used to remove ‘Saving clause’ is used to

‘Exception’ is intended to
special cases from general preserve from destruction
restrain the enacting
enactment and provide for certain rights, remedies or
clause to particular cases
them specially privileges already existing
(h) Explanation:
An Explanation is at times appended to a section to explain the meaning of
certain words or phrases used in the section or of the purport of the section.
An Explanation may be added to include something within the section or to
exclude something from it. An Explanation should normally be so read as to
harmonise with and clear up any ambiguity in the main section. It should
not be so construed as to widen the ambit of the section.
In Sundaram Pillai v. Pattabiraman, Fazal Ali, J. gathered the following
objects of an explanation to a statutory provision:
Explain the meaning and intendment of the Act itself
Clarify any obscurity and vagueness (if any) in the main

enactment to make it consistent with the object
Provide an additional support to the object of the Act to

make it meaningful and purposeful
Fill up the gap which is relevant for the purpose of the

explanation to suppress the mischief and advance the
object of the Act
Cannot take away a statutory right

However, it would be wrong to always construe an explanation as limited to

the aforesaid objects. The meaning to be given to an explanation will really
depend upon its terms and not on any theory of its purpose.
(i) Schedules:
The Schedules form part of an Act. Therefore, they must be read together
with the Act for all purposes of construction. However, the expressions in
the Schedule cannot control or prevail over the expression in the
enactment. If there appears to be any inconsistency between the schedule
and the enactment, the enactment shall always prevail. They often contain
details and forms for working out the policy underlying the sections of the
statute for example schedules appended to the Companies Act, 2013, to
the Constitution of India.
(j) ‘Read the Statute as a Whole’:
It is the elementary principle that construction of a statute is to be made of
all its parts taken together and not of one part only. The deed must be read
as a whole in order to ascertain the true meaning of its several clauses, and
the words of each clause should be so interpreted as to bring them into
harmony with other provisions – if that interpretation does no violence to
the meaning of which they are naturally susceptible. And the same
approach would apply with equal force with regard to Acts and Rules
passed by the legislature.
One of the safest guides to the construction of sweeping general words is
to examine other words of like import in the same enactment or instrument
to see what limitations must be imposed on them. If we find that a number
of such expressions have to be subjected to limitations and qualifications
and that such limitations and qualifications are of the same nature,that
circumstance forms a strong argument for subjecting the expression in
dispute to a similar limitation and qualification.
Example 14: If one section of an Act requires ‘notice’ should be given, then
a verbal notice would generally be sufficient. But, if another section
provides that ‘notice’ should be ‘served’ on the person or ‘left’ with him, or
in a particular manner or place, then it would obviously indicate that a
written notice was intended.

5. EXTERNAL AIDS TO INTERPRETATION/

CONSTRUCTION
Society does not function in a void. Everything done has its reasons, its
background, the particular circumstances prevailing at the time, and so on. These
factors apply to enactments as well. These factors are of great help in
interpreting/construing an Act and have been given the convenient nomenclature
of ‘External Aids to Interpretation’. Apart from the statute itself there are many
matters which may be taken into account when the statute is ambiguous. These
matters are called external aids. Some of these factors are enumerated below:
External Aids
Earlier &
Consolidating Later Acts Use of
Historical Dictionary
Statutes & Usage and Foreign
Setting Definitions
Previous Law Analogous Decisions
Acts
(a) Historical Setting:

The history of the external circumstances which led to the enactment in
question is of much significance in construing any enactment. We have, for
this purpose, to take help from all those external or historical facts which
are necessary in the understanding and comprehension of the subject
matter and the scope and object of the enactment. History in general and
Parliamentary History in particular, ancient statutes, contemporary or other
authentic works and writings all are relevant in interpreting and construing
an Act. We have also to consider whether the statute in question was
intended to alter the law or leave it where it stood before.
(b) Consolidating Statutes & Previous Law:
The Preambles to many Statutes contain expressions such as “An Act to
consolidate” the previous law, etc. In such a case, the Courts may stick to
the presumption that it is not intended to alter the law. They may solve
doubtful points in the statute with the aid of such presumption in intention,
rejecting the literal construction.

(c) Usage:
Usage is also sometimes taken into consideration in construing an Act. The
acts done under a statute provide quite often the key to the statute itself. It
is well known that where the meaning of the language in a statute is
doubtful, usage – how that language has been interpreted and acted upon
over a long period – may determine its true meaning. It has been
emphasized that when a legislative measure of doubtful meaning has, for
several years, received an interpretation which has generally been acted
upon by the public, the Courts should be very unwilling to change that
interpretation, unless they see cogent reasons for doing so.
(d) Earlier & Later Acts and Analogous Acts:
◆ Exposition of One Act by Language of Another:
The general principle is that where there are different Statutes in ‘pari
materia’ (i.e. in an analogous case), though made at different times, or even
expired and not referring to each other, they shall be taken and construed
together as one system and as explanatory of each other.
If two Acts are to be read together then every part of each Act has to be
construed as if contained in one composite Act. But if there is some clear
discrepancy then such a discrepancy may render it necessary to hold the
later Act (in point of time) had modified the earlier one. However, this does
not mean that every word in the later Act is to be interpreted in the same
way as in the earlier Act.
Where the later of the two Acts provides that the earlier Act should, so far
as consistent, be construed as one with it then an enactment in the later
statute that nothing therein should include debentures was held to exclude
debentures from the earlier statute as well.
Where a single section of one Act (say, Act ‘A’) is incorporated into another
statute (say Act ‘B’), it must be read in the sense which it bore in the original
Act from which it is taken consequently, it would be legitimate to refer to all
the rest of Act ‘A’ to ascertain what that Section means, though one Section
alone is incorporated in the new Act (Act ‘B’).
Suppose the earlier bye-law limited the appointment of the chairman of an
organisation to a person possessed of certain qualifications and the later

bye-law authorises the election of any person to be the chairman of the

organisation. In such a case, the later bye-law would be so construed as to
harmonise and not to conflict with the earlier bye-law: the expression ‘any
person’ used in the later bye-law would be understood to mean only any
eligible person who has the requisite qualifications as provided in the earlier
bye-law.
◆ Earlier Act Explained by the Later Act:
Not only may the later Act be construed in
the light of the earlier Act but it (the later
Act) sometimes furnishes a legislative interpretation of the earlier one, if
it is ‘pari materia’ and if, but only if, the provisions of the earlier Act are
ambiguous.
Where the earlier statute contained a negative provision but the later
one merely omits that negative provision. This cannot by itself have
the result of substantive affirmation. In such a situation, it would be
necessary to see how the law would have stood without the original
provision and the terms in which the repealed sections are re-enacted.
◆ Reference to Repealed Act: Where a part of an Act has been repealed, it
loses its operative force. Nevertheless, such a repealed part of the Act
may still be taken into account for construing the un-repealed part. This
is so because it is part of the history of the new Act.
(e) Dictionary Definitions:
First we have to refer to the Act in question to find out if any particular
word or expression is defined in it. Where we find that a word is not defined
in the Act itself, we may refer to dictionaries to find out the general sense in
which that word is commonly understood. However, in selecting one out of
the several meanings of a word, we must always take into consideration the
context in which it is used in the Act. It is the fundamental rule that the
meanings of words and expressions used in an Act must take their colour
from the context in which they appear. Further, judicial decisions laying
down the meaning of words in construing Statutes in ‘pari materia’ will have
greater weight than the meaning furnished by dictionaries. However, for
technical terms reference may be made to technical dictionaries.

(f) Use of Foreign Decisions:

Foreign decisions of countries following the same system of jurisprudence
as ours and given on laws similar to ours can be legitimately used for
construing our own Acts. However, prime importance is always to be given
to the language of the Indian statute. Further, where guidance can be
obtained from Indian decisions, reference to foreign decisions may become
unnecessary.
6. RULES OF INTERPRETATION/ CONSTRUCTION

OF DEEDS AND DOCUMENTS
The first and foremost point that has to be borne in mind is that one has to find
out what a reasonable man, who has taken care to inform himself of the
surrounding circumstances of a deed or a document, and of its scope and
intendments, would understand by the words used in that deed or document. The
principle of construction in case of a document and a deed, as of statute, does
not differ so much except in some minor details. A deed must be read as a whole
in order to ascertain the true meaning of its several clauses and the words of each
clause should be so interpreted as to bring them in harmony with other
provisions if that interpretation does no violence to the meaning of which they
are naturally susceptible. – Lord Watson. In all cases endeavour shall be made to
find out how a reasonable and well-informed person would understand by the
words used in the deed or document.
The golden rule of construction is to ascertain the intention of the parties to
the instrument after considering all the words in their ordinary, natural
sense. To ascertain this intention the Court has to consider the relevant portion
of the document as a whole and also to take into account the circumstances
under which the particular words were used. Very often the status and the
training of the parties using the words have to be taken into consideration.
It has to be borne in mind that very many words are used in more than one sense
and that sense differs in different circumstances. Again, even where a particular
word has to a trained conveyancer a clear and definite significance and one can
be sure about the sense in which such conveyancer would use it, it may not be
reasonable and proper to give the same strict interpretation of the word when

used by one who is not so equally skilled in the art of conveyancing.

(Ramkishorelal v. Kamalnarayan, 1963 (Sup.) 2 S.C. R. 417).
It is inexpedient to construe the terms of one deed by reference to the terms of
another. (Nirmala Bala Ghose v. Balai Chand Ghose (1965) 2 S.C. W.R. 988). It is an
elementary rule of construction that the same word cannot have two different
meanings in the same document, unless the context compels the adoption of
such a course. (Kultar Singh v. Mukhtiar Singh, 1964, 7 S.C.R. 790). The document
must be read as a whole and the intention deduced therefrom as to what the
actual term the parties intended to agree.
It may also happen that there is a conflict between two or more clauses of the
same document. An effort must be made to resolve the conflict by interpreting
the clauses so that all the clauses are given effect to. If, however, it is not possible
to give effect to all of them, then it is the earlier clause that will over-ride the
latter one.
Similarly, if one part of the document is in conflict with another part, an attempt
should always be made to read the two parts of the document harmoniously, if
possible. If that is not possible, then the earlier part will prevail over the latter one
which should, therefore, be disregarded.
SUMMARY
Enacted laws, Acts and Rules are drafted by legal experts and so it is expected
that the language used will leave little room for interpretation of construction.
Interpretation or construction of Statutes helps in finding of the meaning of
ambiguous words and expressions given in the Statutes and resolving
inconsistency lying therein. If any provision of the statute is open to two
interpretations, the Court has to choose that interpretation which represents the
true intention of the legislature. The best interpretation of Statutes is possible by
adoption of various guiding rules of construction and aids to construction of
Statutes. The courts are the best interpreters. They strongly lean against a
construction which reduces the statute to a futility. A statute or any enacting
provision therein must be so construed as to make it effective and operative on
the principle expressed in the maxim: ut res magis valeat quam pereat.

TEST YOUR KNOWLEDGE

MCQ based Questions
1. The Rule in Heydon’s case is also known as—
(a) Purposive construction

(b) Mischief Rule
(c) Golden Rule
(d) Exceptional Construction

2. Pick the odd one out of the following aids to interpretation—
(a) Preamble
(b) Marginal Notes
(c) Proviso
(d) Usage
3. ______________ is the cardinal rule of construction that words, sentences and
phrases of a statute should be read in their ordinary, natural and
grammatical meaning so that they may have effect in their widest amplitude.
(a) Rule of Literal Construction
(b) Rule of Harmonious Construction
(c) Rule of Beneficial Construction
(d) Rule of Exceptional Construction
4. An internal aid that may be added to include something within the section or
to exclude something from it, is—
(a) Proviso
(b) Explanation
(c) Schedule
(d) Illustrations

5. When there is a conflict between two or more statues or two or more parts of
a statute then which rule is applicable:
(a) Welfare construction
(b) Strict construction
(c) Harmonious construction
(d) Mischief Rule
1. Explain the rule in ‘Heydon’s Case’ while interpreting the Statutes quoting an
example.
2. Explain the principles of “Grammatical Interpretation” and “Logical
Interpretation” of a Statute. What are the duties of a court in this regard?
3. (i) What is the effect of proviso? Does it qualify the main provisions of an
Enactment?
(ii) Does an explanation added to a section widen the ambit of a section?
4. Gaurav Textile Company Limited has entered into a contract with a Company.
You are invited to read and interpret the document of contract. What rules of
interpretation of deeds and documents would you apply while doing so?
5. How will you interpret the definitions in a statute, if the following words are
used in a statute?
(i) Means
(ii) Includes
Give one illustration for each of the above from Statutes you are familiar
with.
6. Differentiate Mandatory Provision from a Directory Provision. What factors

decide whether a provision is directory or mandatory?
7. Define Grammatical Interpretation. What are the exceptions to grammatical
interpretation?
8. When can the Preamble be used as an aid to interpretation of a statute?

9. Explain how 'Dictionary Definitions' can be of great help in interpreting/

constructing an Act when the statute is ambiguous.
10. Preamble does not over-ride the plain provision of the Act. Comment. Also
give suitable example.
11. At the time of interpreting a Statute what will be the effect of ‘Usage’ or
‘customs and Practices’?
ANSWERS
1. (b) Mischief Rule
2. (d) Usage
3. (a) Rule of Literal Construction
4. (b) Explanation
5. (c) Harmonious construction

1. Where the language used in a statute is capable of more than one
interpretation, the most firmly established rule for construction is the
principle laid down in the Heydon’s case. This rule enables, consideration of
four matters in constituting an Act:
(1) what was the law before making of the Act,
(2) what was the mischief or defect for which the law did not provide,
(3) what is the remedy that the Act has provided, and
(4) what is the reason for the remedy.
The rule then directs that the courts must adopt that construction which
‘shall suppress the mischief and advance the remedy’. Therefore, even in a
case where the usual meaning of the language used falls short of the whole
object of the legislature, a more extended meaning may be attributed to the
words, provided they are fairly susceptible of it. If the object of any
enactment is public safety, then its working must be interpreted widely to

give effect to that object. Thus, in the case of Workmen’s Compensation Act,
1923 the main object being provision of compensation to workmen, it was
held that the Act ought to be so construed, as far as possible, so as to give
effect to its primary provisions.
However, it has been emphasized by the Supreme Court that the rule in
Heydon’s case is applicable only when the words used are ambiguous and
are reasonably capable of more than one meaning [CIT v. Sodra Devi (1957)
32 ITR 615 (SC)].
2. Principles of Grammatical Interpretation and Logical Interpretation: In
order to ascertain the meaning of any law/ statute the principles of
Grammatical and Logical Interpretation is applied to conclude the real
meaning of the law and the intention of the legislature behind enacting it.
Meaning: Grammatical interpretation concerns itself exclusively with the
verbal expression of law. It does not go beyond the letter of the law,
whereas Logical interpretation on the other hand, seeks more satisfactory
evidence of the true intention of the legislature.
Application of the principles in the court: In all ordinary cases, the
grammatical interpretation is the sole form allowable. The court cannot
delete or add to modify the letter of the law. However, where the letter of
the law is logically defective on account of ambiguity, inconsistency or
incompleteness, the court is under a duty to travel beyond the letter of law
so as to determine the true intentions of the legislature. So that a statute is
enforceable at law, however, unreasonable it may be. The duty of the court
is to administer the law as it stands rather it is just or unreasonable.
However, if there are two possible constructions of a clause, the courts may
prefer the logical construction which emerges from the setting in which the
clause appears and the circumstances in which it came to be enacted and
also the words used therein.
3. (i) Normally a Proviso is added to a section of an Act to except something
or qualify something stated in that particular section to which it is added.
A proviso should not be, ordinarily, interpreted as a general rule. A
proviso to a particular section carves out an exception to the main
provision to which it has been enacted as a Proviso and to no other

provision. [Ram Narian Sons Ltd. v. Commissioner of Sales Tax AIR (1955)
S.C. 765]
(ii) Sometimes an explanation is added to a section of an Act for the
purpose of explaining the main provisions contained in that section. If
there is some ambiguity in the provisions of the main section, the
explanation is inserted to harmonise and clear up and ambiguity in
the main section. Something may added be to or something may be
excluded from the main provision by insertion of an explanation. But
the explanation should not be construed to widen the ambit of the
section.
4. The rules regarding interpretation of deeds and documents are as follows:
First and the foremost point that has to be borne in mind is that one has to
find out what reasonable man, who has taken care to inform himself of the
surrounding circumstances of a deed or a document, and of its scope and
intendments, would understand by the words used in that deed or
document.
It is inexpedient to construe the terms of one deed by reference to the
terms of another. Further, it is well established that the same word cannot
have two different meanings in the same documents, unless the context
compels the adoption of such a rule.
The Golden Rule is to ascertain the intention of the parties of the
instrument after considering all the words in the documents/deed
concerned in their ordinary, natural sense. For this purpose, the relevant
portions of the document have to be considered as a whole. The
circumstances in which the particular words have been used have also to be
taken into account. Very often, the status and training of the parties using
the words have also to be taken into account as the same words maybe
used by an ordinary person in one sense and by a trained person or a
specialist in quite another sense and a special sense. It has also to be
considered that very many words are used in more than one sense. It may
happen that the same word understood in one sense will give effect to all
the clauses in the deed while taken in another sense might render one or
more of the clauses ineffective. In such a case the word should be
understood in the former and not in the latter sense.

It may also happen that there Is a conflict between two or more clauses of
the same documents. An effect must be made to resolve the conflict by
interpreting the clauses so that all the clauses are given effect. If, however, it
is not possible to give effect of all of them, then it is the earlier clause that
will override the latter one.
5. Interpretation of the words “Means” and “Includes” in the definitions-
The definition of a word or expression in the definition section may either
be restricting of its ordinary meaning or may be extensive of the same.
When a word is defined to ‘mean’ such and such, the definition is ‘prima
facie’ restrictive and exhaustive, we must restrict the meaning of the word to
that given in the definition section.
But where the word is defined to ‘include’ such and such, the definition is
‘prima facie’ extensive, here the word defined is not restricted to the
meaning assigned to it but has extensive meaning which also includes the
meaning assigned to it in the definition section.
Example—
Definition of Director [section 2(34) of the Companies Act, 2013]—Director
means a director appointed to the board of a company. The word “means”
suggests exhaustive definition.
Definition of Whole time director [Section 2(94) of the Companies Act,
2013]—Whole time director includes a director in the whole time
employment of the company. The word “includes” suggests extensive
definition. Other directors may be included in the category of the whole
time director.
6. Practically speaking, the distinction between a provision which is

‘mandatory’ and one which is ‘directory’ is that when it is mandatory, it must
be strictly observed; when it is ‘directory’ it would be sufficient that it is
substantially complied with. However, we have to look to the substance and
not merely the form, an enactment in mandatory form might substantially
be directory and, conversely, a statute in directory form may in substance be
mandatory. Hence, it is the substance that counts and must take precedence
over mere form. If a provision gives a power coupled with a duty, it is

mandatory: whether it is or is not so would depend on such consideration

as:
• the nature of the thing empowered to be done,
• the object for which it is done, and
• the person for whose benefit the power is to be exercised.
7. Grammatical Interpretation and its exceptions: ‘Grammatical
interpretation’ concerns itself exclusively with the verbal expression of the
law, it does not go beyond the letter of the law. In all ordinary cases,
‘grammatical interpretation’ is the sole form allowable. The Court cannot
take from or add to modify the letter of the law.
This rule, however, is subject to some exceptions:
(i) Where the letter of the law is logically defective on account of
ambiguity, inconsistency or incompleteness. As regard the defect to
ambiguity, the Court is under a duty to travel beyond the letter of the
law so as to determine from the other sources the true intention of
the legislature. In the case of the statutory expression being defective
on account of inconsistency, the court must ascertain the spirit of the
law.
(ii) If the text leads to a result which is so unreasonable that it is self-
evident that the legislature could not mean what it says, the court may
resolve such impasse by inferring logically the intention of the
legislature.
8. While the Preamble can be used to know the aims and objects of the
legislation it cannot be used to control or qualify the precise and
unambiguous language of an enactment. The preamble is the key to the
mind of the maker of the law, but it cannot override in order to enlarge or
restrict the enacting provision of the Act. A provision contained in the Act
cannot be considered as invalid because they do not accord with the
preamble, which is only a brief summary of legislative objectives behind the
Act, and if there is any conflict between the preamble and any provision of
an Act, the provision prevails.

The preamble merely affords help in the matter of construction if there is

any ambiguity. Where the language of the Act is clear, the court is bound to
give it effect.
When will courts refer to the preamble as an aid to construction?
Situation 1: Where there is any ambiguity in the words of an enactment the
assistance of the preamble may be taken to resolve the conflict.
Situation 2: Where the words of an enactment appear to be too general in

scope or application then courts may resort to the preamble to determine
the scope or limited application for which the words are meant.
9. Dictionary Definitions: First we refer the Act in question to find out if any
particular word or expression is defined in it. Where we find that a word is
not defined in the Act itself, we may refer to dictionaries to find out the
general sense in which that word is commonly understood. However, in
selecting one out of the several meanings of a word, we must always take
into consideration the context in which it is used in the Act. It is the
fundamental rule that the meanings of words and expressions used in an
Act must take their colour from the context in which they appear. Further,
judicial decisions laying down the meaning of words in construing statutes
in pari materia will have greater weight than the meaning furnished by
dictionaries. However, for technical terms, reference may be made to
technical dictionaries.
10. Preamble: The Preamble expresses the scope, object and purpose of the
Act more comprehensively. The Preamble of a Statute is a part of the
enactment and can legitimately be used as an internal aid for construing it.
However, the Preamble does not over-ride the plain provision of the Act.
But if the wording of the statute gives rise to doubts as to its proper
construction, for example, where the words or phrase has more than one
meaning and a doubt arises as to which of the two meanings is intended in
the Act, the Preamble can and ought to be referred to in order to arrive at
the proper construction.
In short, the Preamble to an Act discloses the primary intention of the

legislature but can only be brought in as an aid to construction if the
language of the statute is not clear. However, it cannot override the
provisions of the enactment.

Example: Use of the word ‘may’ in section 5 of the Hindu Marriage Act, 1955
provides that “a marriage may be solemnized between two Hindus…..” has
been construed to be mandatory in the sense that both parties to the
marriage must be Hindus as defined in section 2 of the Act. It was held that
a marriage between a Christian male and a Hindu female solemnized under
the Hindu Marriage Act was void. This result was reached also having regard
to the preamble of the Act which reads: ‘An Act to amend and codify the
law relating to marriage among Hindus” [GullipoliSowria Raj v.
BandaruPavani, (2009)1 SCC714].
11. Effect of usage: Usage or practice developed under the statute is indicative
of the meaning recognized to its words by contemporary opinion. A uniform
notorious practice continued under an old statute and inaction of the
Legislature to amend the same are important factors to show that the
practice so followed was based on correct understanding of the law. When
the usage or practice receives judicial or legislative approval it gains
additional weight.
In this connection, we have to bear in mind two Latin maxims:
(i) 'Optima Legum interpres est consuetude' (the custom is the best
interpreter of the law); and
(ii) ‘Contemporanea Expositio est optima et fortissinia in lege’ (the best
way to interpret a document is to read it as it would have been read
when made).
Therefore, the best interpretation/construction of a statute or any other
document is that which has been made by the contemporary authority.
Simply stated, old statutes and documents should be interpreted as they
would have been at the time when they were enacted/written.
Contemporary official statements throwing light on the construction of a
statute and statutory instruments made under it have been used as
contemporanea expositio to interpret not only ancient but even recent
statutes in India.

CHAPTER a
3
THE FOREIGN
EXCHANGE
MANAGEMENT
ACT, 1999
LEARNING OUTCOMES

 Comprehend certain important terms and definitions under
the Foreign Exchange Management Act, 1999
 Gain knowledge about the concept of Residential Status
under the Foreign Exchange Management Act, 1999
 Identify the meaning of Current and Capital Account
Transactions and the Rules and Regulations governing them

CORPORATE AND ECONOMIC LAWS
a
3.2
FEMA, 1999
Regulation and Management of

Definitions
Foreign Exchange
Current Capital Account

Account Permissible
Transactions Transactions
Schedule I Schedule I
Schedule II Schedule II
Schedule III
1. INTRODUCTION
Need for the Act
The change in the economic scenario,
globalization of capital, free trade across the
globe, necessitated the need for managing
foreign exchange in the country in an orderly
manner. To facilitate cross border trade and cross
border capital flows, exchange control law was
required. Foreign exchange control led to
introduction of exchange control law through
Defense of India rules by the Britishers in 1939. Subsequently, Foreign Exchange
Regulation Act (FERA) was enacted in 1947 which was later replaced with 'the
Foreign Exchange Regulation Act, 1973' (FERA).

THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999 3.3
a
Government as part of its agenda of liberalization of the Indian economy in 1991,

permitted free movement of foreign exchange in connection to trade related
receipts and payments as well as Foreign Investment in various sectors. This
increased the flow of foreign exchange to India and consequently foreign exchange
reserves increased substantially. The Foreign Exchange Management Act, 1999 was
enacted and made effective from 1st June, 2000. This Act enables management of
foreign exchange reserves for the country.
Salient Features of the Act: It provides for-
 Regulation of transactions between residents and non-residents
 Investments in India by non-residents and overseas investments by Indian

residents
 Freely permissible transactions on current account subject to reasonable

restrictions that may be imposed
 Reserve Bank of India (RBI) and Central Government control over capital
account transactions
 Requirement for realisation of export proceeds and repatriation to India
 Dealing in foreign exchange through 'Authorised Persons' like Authorised

Dealer/ Money Changer/ Off-shore banking unit
 Adjudication and Compounding of Offences
 Investigation of offences by Directorate of Enforcement
 Appeal provisions including Special Director (Appeals) and Appellate

Tribunal.
Enforcement of FEMA: Though RBI exercises overall control over foreign exchange
transactions, enforcement of FEMA has been entrusted to a separate 'Directorate
of Enforcement' formed for this purpose. [Section 36].

a
3.4
How to Read FEMA:
Act
Rules* & Regulations**
Notifications & Circulars
Master Directions
FAQs
*Rules are notified by the Ministry of Finance, Government of India
** Regulations are notified by the Reserve Bank of India
Broad Structure of FEMA

Now let us have a glance at the broad structure the Act. The Act consists of 7
Chapters dealing with following areas:
Chapters Matters Sections

I Preliminary 1–2
II Regulation and Management of Foreign Exchange 3–9
III Authorised Person 10 – 12
IV Contravention and Penalties 13 – 15
V Adjudication and Appeal 16 – 35
VI Directorate of Enforcement 36 – 38
VII Miscellaneous 39 – 49

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2. PREAMBLE, EXTENT, APPLICATION AND

COMMENCEMENT OF FEMA, 1999
(A) Preamble: This Act aims to consolidate and amend the law relating to foreign
exchange with the objective of —
(i) facilitating external trade and payments and

(ii) for promoting the orderly development and maintenance of foreign
exchange market in India.
(B) Extent and Application [Section 1]: FEMA, 1999 extends to the whole of
India. In addition, it shall also apply to all branches, offices and agencies outside
India owned or controlled by a person resident in India and also to any
contravention thereunder committed outside India by any person to whom this Act
applies.
The scope of the Act has been extended to include branches, offices and agencies
outside India. The scope is thus wide enough because the emphasis is on the words
“Owned or Controlled”. Contravention of the FEMA committed outside India by a
person to whom this Act applies will also be covered by FEMA.
(C) Commencement: The Act, 1999 came into force with effect from 1 stJune,
2000 vide Notification G.S.R. 371(E), dated 1.5.2000.
3. DEFINITIONS [SECTION 2]
In this Act, unless the context otherwise requires:
(1) “Authorised person” means an authorised dealer, money changer, off-shore
banking unit or any other person for the time being authorised under section
10(1) to deal in foreign exchange or foreign securities; [Section 2(c)]
(2) “Capital Account Transaction” means a transaction, which alters the assets or
liabilities, including contingent liabilities, outside India of persons resident in
India or assets or liability in India of persons resident outside India, and
includes transactions referred to in 1Section 6(3); [Section 2(e)]
1
Section 6(3) has been deleted with effect from 15 th October 2019.

a
3.6
(3) “Currency” includes all currency notes, postal notes, postal orders, money
orders, cheques, drafts, travelers’ cheques, letters of credit, bills of exchange
and promissory notes, credit cards or such other similar instruments, as may
be notified by the Reserve Bank. [Section 2(h)]
(4) “Currency Notes” means and includes cash in the form of coins and bank
notes; [Section 2(i)]
(5) “Current Account Transaction” means a transaction other than a capital

account transaction and without prejudice to the generality of the foregoing
such transaction includes,
(i) payments due in connection with foreign trade, other current business,
services, and short-term banking and credit facilities in the ordinary
course of business.
(ii) payments due as interest on loans and as net income from investments.
(iii) remittances for living expenses of parents, spouse and children residing
abroad, and
(iv) expenses in connection with foreign travel, education and medical care
of parents, spouse and children; [Section 2(j)]
(6) “Export”, with its grammatical variations and cognate expressions means;
(i) the taking out of India to a place outside India any goods.
(ii) provision of services from India to any person outside India;[Section

2(l)]
(7) “Foreign Currency” means any currency other than Indian currency; [Section
2(m)]
(8) “Foreign Exchange” means foreign currency and includes:
(i) deposits, credits and balances payable in any foreign currency,

a
(ii) drafts, travelers’ cheques, letters of credit or bills of exchange,

expressed or drawn in Indian currency but payable in any foreign
currency,
(iii) drafts, travelers’ cheques, letters of credit or bills of exchange drawn by

banks, institutions or persons outside India, but payable in Indian
currency; [Section 2(n)]
(9) “Foreign Security” means any security, in the form of shares, stocks, bonds,
debentures or any other instrument denominated or expressed in foreign
currency and includes securities expressed in foreign currency, but where
redemption or any form of return such as interest or dividends is payable in
Indian currency; [Section 2(o)]
(10) “Import”, with its grammatical variations and cognate expressions, means
bringing into India any goods or services; [Section 2(p)]
(11) “Person” includes:
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether

incorporated or not,
(vi) every artificial juridical person, not falling within any of the preceding
sub-clauses, and;
(vii) any agency, office or branch owned or controlled by such person;

[Section 2(u)]
(12) “Person resident in India” means:
(i) a person residing in India for more than 182 days during the course of
the preceding financial year but does not include—

a
3.8
(A) a person who has gone out of India or who stays outside India, in
either case—
(a) for or on taking up employment outside India, or
(b) for carrying on outside India a business or vocation

outside India, or
(c) for any other purpose, in such circumstances as would

indicate his intention to stay outside India for an uncertain
period;
(B) a person who has come to or stays in India, in either case,

otherwise than:
(a) for or on taking up employment in India, or
(b) for carrying on in India a business or vocation in India, or
(c) for any other purpose, in such circumstances as would

indicate his intention to stay in India for an uncertain
period;
(ii) any person or body corporate registered or incorporated in India,
(iii) an office, branch or agency in India owned or controlled by a person

resident outside India,
(iv) an office, branch or agency outside India owned or controlled by a

person resident in India; [Section 2(v)]
(13) “Person Resident Outside India” means a person who is not resident in India;
[Section 2(w)]
(14) “Transfer” includes sale, purchase, exchange, mortgage, pledge, gift, loan or
any other form of transfer of right, title, possession or lien. [Section 2(ze)]

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4. RESIDENTIAL STATUS UNDER FEMA, 1999

The definition of “person” is similar to the definition contained in the Income-tax
Act, 1961. The term ‘person’ includes entities such as companies, firms, individuals,
HUF, Association of Persons (AOP), artificial juridical persons agencies, as well as
offices and branches. Agencies, offices and branches do not have independent
status separate from their owners. Yet these have been considered as persons.
Under FEMA such offices and branches are included in definition of Person Resident
in India. Therefore, they have been included in the definition of “Person”.
The term ‘person resident in India’ means the following entities:
1. A person who resides in India for more than 182 days during the
preceding financial year;
The following persons are NOT persons resident, in India even though they
may have resided in India for more than 182 days.
A. A person who has gone out of India or stays outside India for any of the
three purposes given below,
B. A person who has come to or stays in India OTHERWISE THAN for any
of the three purposes given below;
Three Purposes
(i) For or on taking up Employment
(ii) For carrying on a business or Vacation
(iii) For any other purpose in such circumstances as would indicate
stay for an uncertain period.
2. Any person or body corporate registered or incorporated in India;
3. An office, branch or agency in India owned or controlled by a person resident
outside India;
4. An office, branch or agency outside India owned or controlled by a person
resident in India.

a
3.10
Person resident outside India means a person who is not resident in India.
During the relevant previous year did he reside in India for more than 182 days
Yes No
Did he go out or stay outside Did he come to or stay in

India during the current year? India during the current year?
Yes No Yes
No
3 3
Purposes Purposes
? ?
Yes Yes
No No
PROI PRII PRII PRII PROI PROI
As the definitions of Person Resident in India (PRII) and Person Resident outside
India (PROI) are quite relevant for determining the applicability of the Act on an
entity, let us analyse and understand it better.
In the case of individuals, to be considered as “resident”, the person should have
resided in India in the preceding financial year for more than 182 days. Citizenship
is not the criteria for determining whether or not a person is resident in India.
There are three limbs in the definition. The first limb prescribes the number of days
stay. Then there are two limbs which are exceptions to the first limb.
First limb – It states that a person who is in India for more than 182 days in the
“preceding year” will be a Person Resident in India. Thus, at the threshold or basic
level, one has to consider the period of stay during the preceding year.

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Example 1: If a person resides in India for more than 182 days during FY 2020-21,
then for the FY 2021-22, the person will be an Indian resident. For FY 2020-21, one
will have to consider residence during FY 2019-20, and so on.
There are two exceptions provided in clauses (A) and (B). Clause (A) is for persons
going out of India. Clause (B) is for persons coming into India. Exceptions carve out
situations that do not fall under the main body of a section, even though they
satisfy the criteria. This means that even if a person is an Indian resident based on
the test provided in the first limb, the person will be a “Person Resident Outside
India (PROI) if he falls within limb (A) or limb (B).
Clause (A) – second limb – It states that if a person leaves India in any of the
THREE PURPOSES we saw above, he will not be a PRII. He will be a PROI.
Thus, in the example given for the first limb above, if a person leaves India on 1 st
November 2021, he will be a non-resident from 2 nd November 2021 – even though
his number of days in India was more than 182 days in FY 2020-2021. Similarly, if a
person goes and stays out of India for carrying on any business, he will be a PROI
from that date. For FY 2021-2022 the person will be a PRII till 1st November 2021.
He will then be a PROI. From 1st April 2022, the person will continue to be a PROI
as long as he stays out of India for employment.
An example for clause (iii) can be a person who has a green card in the USA. The
green card entitles a person to stay in the USA and eventually become a US citizen.
If a person goes abroad and starts staying in the USA, he will be a non-resident
from that date as his stay abroad indicates that he is going to stay there for an
uncertain period.
Clause (B) – third limb – This is a complex clause as first limb read with third limb
has two exceptions. Limb one uses the phrase “but does not include”. Third limb
uses the phrase “otherwise than”. Use of two exceptions make it complex reading.
It states that if a person has come to India for any reason otherwise than for -
employment, business or circumstances which indicate his intention to stay for
uncertain period – he will be a non-resident. This will be so even if the person has
stayed in India for more than 182 days in the preceding year.
For example, if a person comes to India on 1 st June 2021 for visiting his parents.
However, his parents fall sick and he stays till 31 st March 2022. Thereafter he
continues to stay in India. It is however certain that he will leave India in next 6

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months when his parents recover. His stay in India is neither for employment, nor
for business, nor for circumstances which show that he will stay in India for an
uncertain period. In such a case, even if he has resided in India for more than 182
days in FY 2021-2022, he will continue to be a non-resident from 1st April 2022 also.
In FY 2021-2022, he is of course a PROI as he did not reside in India for more than
182 in FY 2020-2021.
If a person comes to India on 1st June 2021 for employment, business or
circumstances which indicate his intention to stay in India for an uncertain period,
he will be a PRII from 1 st June 2021.
Residential status is not for a year. It is from a particular date. This is different from
income-tax law. Under income-tax law, a person has to pay tax in respect of the
income of the previous year. Therefore, it is possible to look at a complete year for
determining residential status under the Income Tax Act, 1961. FEMA is a regulatory
law. One has to know the person’s status at the time of undertaking a transaction.
If for example, a person comes to India for employment, and if his status can be
known only when the year is completed, how will he and other people enter into
commercial transactions with each other? If he is considered as a PROI till the year
is over, then people will not be able to enter into transactions with him. This is the
reason why the residential status is not for a year but from particular date.
It is understood that this condition applies only to individuals. It will not apply
to HUF, AOP or artificial juridical person as they cannot get employed, cannot go
out of India or come to India. Hence, they do not come within the ambit of the
second and third limbs. These entities like HUF and AOP are not required to be
registered or incorporated like corporate entities nor the definition can be far
stretched to cover by applying the criteria of ‘owned or controlled’. Hence legally
the definition for HUF, AOP, BOI fail. Practically if the HUF, AOP etc. are in India,
they will be considered as Indian residents.
Person or Body corporate: Any person or body corporate registered or

incorporated in India, will be considered a PRII. This definition too, does not apply
to AOP, BOI etc.
Office, branch or agency: Any agency, branch or agency outside India but owned
or controlled by PRII will be considered as person resident in India (PRII). Thus,
one cannot set up a branch outside India and attempt to avoid FEMA provisions.

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Any agency, branch or agency in India but owned or controlled by a person

resident outside India (PROI) will be considered as a person resident in India. This
is relevant as Indian residents can deal with such branch in India without
considering FEMA. If such branch is considered as a PROI then it will be difficult to
undertake several transactions.
Illustration 1
Mr. X had resided in India during the financial year 2019-2020 for less than 182 days.
He had come to India on April 1, 2020 for carrying on business. He intends to leave
the business on April 30, 2021 and leave India on June 30, 2021. Determine his
residential status for the financial years 2020-2021 and 2021-2022 up to the date of
his departure?
Answer
As explained in the above illustration, Mr. X will be considered as a ‘person resident
in India’ from 1st April 2020. As regards, financial year 2021-2022, Mr. X would
continue to be an Indian resident from 1 st April 2021.
If he leaves India for the purpose of taking up employment or for business/vocation
outside India, or for any other purpose as would indicate his intention to stay
outside India for an uncertain period, he would cease to be person resident in India
from the date of his departure. It may be noted that even if Mr. X is a foreign citizen,
has not left India for any of these purposes, he would be considered, ‘person
resident in India’ during the financial year 2021-2022. Thus, it is the purpose of
leaving India which will decide his status from 1st July 2021.
Illustration 2
Mr. Z had resided in India during the financial year 2019-2020. He left India on 1st
August, 2020 for United States for pursuing higher studies for three years. What
would be his residential status during financial year 2020-2021 and during 2021-
2022?
Answer
Mr. Z had resided in India during financial year 2019-2020 for more than 182 days.
After that he has gone to USA for higher studies. He has not gone out of or stayed
outside India for or on taking up employment, or for carrying a business or for any
other purpose, in circumstances as would indicate his intention to stay outside India

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for an uncertain period. Accordingly, he would be ‘person resident in India’ during

the financial year 2020-2021. RBI has however clarified in its AP circular no. 45 dated
8th December 2003, that students will be considered as non-residents. This is
because usually students start working there to take care of their stay and cost of
studies.
For the financial year 2021-2022, he would not have been in India in the preceding
financial year (2020-2021) for a period exceeding 182 days. Accordingly, he would
not be ‘person resident in India’ during the financial year 2021-2022.
Illustration 3
Toy Ltd. is a Japanese company having several business units all over the world. It
has a robotic unit with its head quarters in Mumbai and has a branch in Singapore.
The Headquarters at Mumbai controls the Singapore branch of the robotic unit. What
would be the residential status of the robotic unit in Mumbai and that of the
Singapore branch?
Answer
Toy Ltd. being a Japanese company would be a person resident outside India.
[Section 2(w)]. Section 2(u) defines ‘person’. Under clause (viii) thereof person
would include any agency, office or branch owned or controlled by such ‘person’.
The term such ‘person’ appears to refer to a person who is included in clauses (i)
to (vi). Accordingly, robotic unit in Mumbai, being a branch of a company, would
be a ‘person’.
Section 2(v) defines ‘person resident in India’. Under clause (iii) thereof ‘person
resident in India’ would include an office, branch or agency in India owned or
controlled by a person resident outside India. Robotic unit in Mumbai is owned or
controlled by a person ‘resident outside India’. Hence, it would be ‘person resident
in India’.
The robotic unit headquartered in Mumbai, which is a person resident in India as
discussed above, controls the Singapore branch, Hence, the Singapore branch is a
‘person resident in India’.

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Illustration 4
Miss Alia is an airhostess with the British Airways. She flies for 12 days in a month
and thereafter takes a break for 18 days. During the break, she is accommodated in
‘base’, which is normally the city where the Airline is headquartered. However, for
security considerations, she was based at Mumbai. During the financial year, she was
accommodated at Mumbai for more than 182 days. What would be her residential
status under FEMA?
Answer
Miss Alia stayed in India at Mumbai ‘base’ for more than 182 days in the preceding
financial year. She is however employed in UK. She has not come to India for
employment, business or circumstances which indicate her intention to stay for
uncertain period. Under section 2(v)(B), such persons are not considered as Indian
residents even if their stay exceeds 182 days in the preceding year. Thus, while Miss
Alia may have stayed in India for more than 182 days, she cannot be considered to
be a Person Resident in India.
If however she has been employed in Mumbai branch of British Airways, then she
will be considered a Person Resident in India.
5. REGULATION AND MANAGEMENT OF

FOREIGN EXCHANGE
❖ Dealing in foreign exchange, etc. [Section 3]
No person shall-
(a) deal in or transfer any foreign exchange or foreign security to any
person not being an authorised person (AP);
(b) make any payment to or for the credit of any person resident outside
India in any manner;
(c) receive otherwise than through an authorised person, any payment by
order or on behalf of any person resident outside India in any manner.
Explanation—For the purpose of this clause, where any person in, or
resident in, India receives any payment by order or on behalf of any
person resident outside India through any other person (including an

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authorised person) without a corresponding inward remittance from

any place outside India, then, such person shall be deemed to have
received such payment otherwise than through an authorised person;
(d) enter into any financial transaction in India as consideration for or in
association with acquisition or creation or transfer of a right to acquire,
any asset outside India by any person.
The above transactions may carried on:

(a) as otherwise provided in this Act; or
(b) with the general or special permission of the Reserve Bank.
Explanation — For the purpose of this clause, “financial transaction” means
making any payment to, or for the credit of any person, or receiving any payment
for, by order or on behalf of any person, or drawing, issuing or negotiating any bill
of exchange or promissory note, or transferring any security or acknowledging any
debt.
This section imposes blanket restrictions on the specified transactions. This section
applies to PRIIs and PROIs. The purpose of this section is to regulate inflow and
outflow of Foreign Exchange through Authorised dealers and in a permitted
manner.
Consider following examples:

(i) Example pertaining to clause (a)- Dealing in foreign exchange – A PROI
comes to India and would like to sell US$ 1,000 to his friend who is resident
in India. The friend offers him a rate better than the banks. This cannot be
done as it would amount to dealing in foreign exchange.
(ii) Example pertaining to clause (b) – A PROI has an insurance policy in India.
He requests his brother in India to pay the insurance premium. This will
amount to payment for the credit of non-resident. This is not permitted.
(iii) Example pertaining to clause (c)– A foreign tourist comes to India and he
takes food at a restaurant. He would like to pay US$ 20 in cash to the
restaurant. The restaurant cannot accept cash as it will be a receipt otherwise
than through Authorised Person. The restaurant will have to take a money
changers license to accept foreign currency.

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(iv) Example pertaining to clause (d)–Transactions covered by this sub-section

are known as Hawala transactions. An Indian resident gives ` 70,000 in cash
to an Indian dealer. For this transaction, the brother in Dubai will get US$
1,000 from a Dubai dealer. The two dealers may settle the transactions later.
However, transaction is not permitted.
❖ Holding of foreign exchange [Section 4]
Except as provided in this Act, no person resident in India shall acquire, hold, own,
possess or transfer any foreign exchange, foreign security or any immovable
property situated outside India.
This section prevents Indian residents to acquire, hold, own, possess or transfer any
foreign exchange, foreign security or immovable property abroad. Then through
separate notifications, acquisition of these assets has been permitted subject to
certain conditions and compliance rules.
Example 2: If an Indian resident receives bank balance of US$ 10,000 from his uncle
in London, the Indian resident cannot hold on to the foreign funds. He is supposed
to bring back the funds as provided in section 8.
❖ Current account transactions [Section 5]
The term ‘Current Account Transaction’ is defined negatively by Section 2(j) of the
Act. It means a transaction other than a capital account transaction and includes
the following types of transactions:
(i) Payments in the course of ordinary course of foreign trade, other services
such as short-term banking and credit facilities in the ordinary course of
business etc.
(ii) Payments in the form of interest on loans or income from investments.

(iii) Remittances for living expenses of parents, spouse, or children living abroad
(iv) Expenses in connection with foreign travel, education etc.
Example 3: An Indian resident imports machinery from a vendor in UK for installing in
his factory. As per accounts and income-tax law, machinery is a “capital expenditure”.
However, under FEMA, it does not alter (create) an asset in India for the UK vendor. It
does not create any liability to a UK vendor for the Indian importer. Once the payment
is made, the Indian resident or the UK vendor neither owns nor is owed anything in
the other country. Hence it is a Current Account Transaction.

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Example 4: An Indian resident imports machinery from a vendor in UK for installing

in his factory on a credit period of 3 months. As per accounts and income-tax law,
for the credit period of 3 months, there is a liability of the Indian importer to the
UK vendor. Technically under FEMA also, it is a liability outside India. However,
under definition of Current Account Transaction [Section 2(j)(i)], “short-term
banking and credit facilities in the ordinary course of business” are considered as a
Current Account Transaction. Hence, import of machinery on credit terms is Current
Account Transaction.
Example 5: A Person Resident in India transfers US$ 1,000 to his NRI brother in
New York as “gift”. The funds are sent from the PRII’s Indian bank account to the
NRI brother’s bank account in New York. Under accounts and income-tax law, gift
is a “capital receipt”. However, under FEMA, once the gift is accepted by the NRI,
no one owns or owes anything to anyone in India or USA. The transaction is over.
Hence, it is a Current Account Transaction.
If gift is a current account transaction, why is there a restriction under Current
Account regulations? It is because while there is no restriction on Current Account
transactions, some reasonable restrictions can be imposed. Otherwise, people may
transfer funds abroad under the garb of current account transactions.
If however the PRII gives a PROI a gift in India in Indian currency, for the PROI it
will result in funds lying in India (alteration of Indian asset). For PRII, there is no
creation of asset or a liability. As this transaction creates an asset in India for the
PROI, it is a Capital Account transaction.
In a similar manner, if a PROI gives a gift to a PRII by remitting funds in India, there
is no restriction. However, if the PROI gives the funds abroad, the resident cannot
keep it abroad. He has to bring it to India.
Any person may sell or draw foreign exchange to or from an authorised person if
such sale or drawal is a current account transaction.
The Central Government may, in public interest and in consultation with the
Reserve Bank, impose such reasonable restrictions for current account
transactions as prescribed under the FEM (Current Account Transactions)
Rules, 2000.

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The general rule to be understood is that Current Account transactions are freely
permitted unless specifically prohibited and Capital Account transactions are
prohibited unless specifically or generally permitted.
Section 5 of the Act permits any person to sell or draw Foreign Exchange to or from
an Authorised person to undertake any current account transaction. The Central
Government has the power to impose reasonable restrictions, in consultation with
the RBI and in public interest on current account transactions. The Central
Government has in exercise of this power issued the Foreign Exchange
Management (Current Account Transactions) Rules, 2000.
Let us now see the various schedules to the Rules that lay down the restrictions:
I. SCHEDULE I
2
Transactions for which drawal of foreign exchange is prohibited:
(i) Remittance out of lottery winnings.
(ii) Remittance of income from racing/riding, etc., or any other hobby.
(iii) Remittance for purchase of lottery tickets, banned/prescribed magazines,
football pools, sweepstakes etc.
(iv) Payment of commission on exports made towards equity investment in Joint
Ventures/Wholly Owned Subsidiaries abroad of Indian companies.
(v) Remittance of dividend by any company to which the requirement of dividend
balancing is applicable.
(vi) Payment of commission on exports under Rupee State Credit Route, except
commission up to 10% of invoice value of exports of tea and tobacco.
(vii) Payment related to “Call Back Services” of telephones.
(viii) Remittance of interest income on funds held in Non-resident Special Rupee
Scheme a/c.
2
Schedule I (Transactions which are prohibited)-Foreign Exchange Management (Current
Account Transactions) Rules, 2000 as amended from time to time.

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II. SCHEDULE II
3
Transactions, which require prior approval of the Government of India for drawal
of foreign exchange:
Purpose of Remittance Ministry/Department of Govt.

of India whose approval is
required
Cultural Tours Ministry of Human Resources
Development (Department of
Education and Culture)
Advertisement in foreign print media for Ministry of Finance, Department
the purposes other than promotion of of Economic Affairs
tourism, foreign investments and
international bidding (exceeding US$
10,000) by a State Government and its
Public Sector Undertakings.
Remittance of freight of vessel charted by a Ministry of Surface Transport
PSU (Chartering Wing)
Payment of import through ocean transport Ministry of Surface Transport
by a Govt. Department or a PSU on c.i.f. (Chartering Wing)
basis (i.e., other than f.o.b. and f.a.s. basis)
Multi-modal transport operators making Registration Certificate from the
remittance to their agents abroad Director General of Shipping
Remittance of hiring charges of Ministry of Information and
transponders by Broadcasting
(a) TV Channels Ministry of Communication and
Information Technology.
(b) Internet service providers
Remittance of container detention charges Ministry of Surface Transport
exceeding the rate prescribed by Director (Director General of Shipping)
General of Shipping
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Schedule II (Transactions which require prior approval of the Central Government) - Foreign
Exchange Management (Current Account Transactions) Rules, 2000 as amended from time
to time

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Remittance of prize money/ sponsorship of Ministry of Human Resource

sports activity abroad by a person other Development (Department of
than International/ National/State Level Youth Affairs and Sports)
sports bodies, if the amount involved
exceeds US $ 100,000
Remittance for membership of P & I Club Ministry of Finance (Insurance
Division)
4
Transactions which require RBI’s prior approval for drawal of foreign
exchange:
SCHEDULE III
1. Facilities for individuals—Individuals can avail of foreign exchange
facility for the following purposes within the limit of USD 250,000 only.:
(i) Private visits to any country (except Nepal and Bhutan)
(ii) Gift or donation.
(iii) Going abroad for employment
(iv) Emigration
(v) Maintenance of close relatives abroad
(vi) Travel for business or attending a conference or specialised training or

for meeting expenses for meeting medical expenses, or check-up
abroad, or for accompanying as attendant to a patient going abroad for
medical treatment/ check-up.
(vii) Expenses in connection with medical treatment abroad
(viii) Studies abroad
(ix) Any other current account transaction

Any additional remittance in excess of the said limit for the said purposes
shall require prior approval of the Reserve Bank of India.
However, for the purposes mentioned at item numbers (iv), (vii) and (viii)
above, the individual may avail of exchange facility for an amount in excess
4
Schedule III- Notification no G.S.R. 426(E) dated 26th May 2015

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of the limit prescribed under the Liberalised Remittance Scheme as provided

in regulation 4 to FEMA Notification 1/2000-RB, dated the 3rd May,
2000 (here in after referred to as the said Liberalised Remittance Scheme) if
it is so required by a country of emigration, medical institute offering
treatment or the university, respectively:
Further, if an individual remits any amount under the said Liberalised
Remittance Scheme in a financial year, then the applicable limit for such
individual would be reduced from USD 250,000 (US Dollars Two Hundred and
Fifty Thousand Only) by the amount so remitted:
Further, that for a person who is resident but not permanently resident in
India and-
(a) is a citizen of a foreign State other than Pakistan; or
(b) is a citizen of India, who is on deputation to the office or branch of a
foreign company or subsidiary or joint venture in India of such foreign
company,
may make remittance up to his net salary (after deduction of taxes,
contribution to provident fund and other deductions).
Explanation: For the purpose of this item, a person resident in India on
account of his employment or deputation of a specified duration (irrespective
of length thereof) or for a specific job or assignments, the duration of which
does not exceed three years, is a resident but not permanently resident:
Further, a person other than an individual may also avail of foreign exchange
facility, mutatis mutandis, within the limit prescribed under the said
Liberalised Remittance Scheme for the purposes mentioned herein above.
2. Facilities for persons other than individual—The following remittances
by persons other than individuals shall require prior approval of the
Reserve Bank of India:
(i) Donations exceeding one per cent. of their foreign exchange earnings
during the previous three financial years or USD 5,000,000, whichever is
less, for-
a. creation of Chairs in reputed educational institutes,

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b. contribution to funds (not being an investment fund) promoted

by educational institutes; and
c. contribution to a technical institution or body or association in
the field of activity of the donor Company.
(ii) Commission, per transaction, to agents abroad for sale of residential
flats or commercial plots in India exceeding USD 25,000 or five percent
of the inward remittance whichever is more.
(iii) Remittances exceeding USD 10,000,000 per project for any consultancy
services in respect of infrastructure projects and USD 1,000,000 per
project, for other consultancy services procured from outside India.
Explanation—For the purposes of this sub-paragraph, the expression
“infrastructure’ shall mean as defined in explanation to para 1(iv)(A)(a)
of Schedule I of FEMA Notification 3/2000-RB, dated the May 3, 2000.
(iv) Remittances exceeding five per cent of investment brought into India
or USD 100,000 whichever is higher, by an entity in India by way of
reimbursement of pre-incorporation expenses.
3. Procedure—The procedure for drawal or remittance of any foreign exchange
under this schedule shall be the same as applicable for remitting any amount
under the said Liberalised Remittance Scheme.
If the transaction is not listed in any of the above three schedules, it can
be freely undertaken.
Exemption for remittance from RFC Account – No approval is required
where any remittance has to be made for the transactions listed in Schedule
II and Schedule III above from an Resident Foreign Currency (RFC) account.
Exemption for remittance from EEFC Account – If any remittance has to be

made for the transactions listed in Schedule II and Schedule III above from
Exchange Earners' Foreign Currency (EEFC) account, then also no approval is
required. However, if payment has to be made for the following transactions,
approval is required even if payment is from EEFC account:
• Remittance for membership of P & I Club.
• Commission, per transaction, to agents abroad for sale of residential

flats or commercial plots in India exceeding USD 25,000 or five per cent

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of the inward remittance whichever is more. Remittances exceeding five

per cent of investment brought into India or USD 100,000 whichever is
higher, by an entity in India by way of reimbursement of pre-
incorporation expenses.
Exemption for payment by International Credit Card while on a visit
abroad – If a person is on a visit abroad, he can incur expenditure stated in
Schedule III if he incurs it through International credit card.
Note: Liberalised Remittance Scheme (LRS): Under the Liberalised Remittance
Scheme (LRS), all resident individuals, including minors, are allowed to freely remit
up to USD 250,000 per financial year (April – March) for any permissible current or
capital account transaction or a combination of both. This is inclusive of foreign
exchange facility for the purposes mentioned in Para 1 of Schedule III of Foreign
Exchange Management (CAT) Amendment Rules 2015, dated May 26, 2015.
In case of remitter being a minor, the LRS declaration form must be
countersigned by the minor’s natural guardian. The Scheme is not available to
corporates, partnership firms, HUF, Trusts etc.
Consolidation of remittance of family members - Remittances under the
Scheme can be consolidated in respect of family members subject to individual
family members complying with its terms and conditions.
Exception: Clubbing is not permitted by other family members for capital
account transactions such as opening a bank account/investment/purchase of
property, if they are not the co-owners/co-partners of the overseas bank
account/investment/property.
❖ Capital account transactions [Section 6]
The definitions of “Capital Account Transactions” and its opposite “current account
transactions are contained in clauses (e) and (j) of Section 2. The regulations under
FEMA apply to a transaction based on whether the transaction is “Capital Account
Transaction” or a “Current Account Transaction”. These transactions broadly outline
the basics and whole approach of the Act. Basically these two transactions have to
be understood as being similar to the concepts of items relating to the profit and
loss account or revenue items (with respect to current account transactions) and of
Balance Sheet or capital items (with respect to capital account transactions).

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Capital Account Transactions means “A transaction which alters the assets or

liabilities including contingent liabilities outside India of persons resident in India
or assets or liabilities in India of persons resident outside India would be a capital
account transaction.”
Capital Accounts Transaction in India can be carried out only to the extent
permitted because Indian Rupee is not yet fully convertible. Capital and current
account transactions are intended to be mutually exclusive. A transaction which
alters the asset or liabilities in India of non-residents falls under the category
of capital account. However, as far as residents are concerned transactions which
alter the contingent liabilities outside India are also capital account
transactions. The Reserve Bank of India may by regulations place restrictions on
various specified capital account transactions. In simple terms, cross border
transactions pertaining to investments, loans, immovable property, transfer of
assets are Capital Account Transactions.
(1) Subject to the provisions of sub-section (2), any person may sell or draw
foreign exchange to or from an authorised person for a capital account
transaction.
(2) Reserve Bank had the power to specify the Capital Account transactions
which are permitted and the relevant limits, terms and conditions. By
Finance Act 2015, powers for regulation of Capital Account Transactions for
Non-debt instruments were transferred to Central Government. RBI
continued to have powers to regulate debt instruments. The amendments

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have however been made effective from 15 th October 2019. Now the
regulations are as under:
The Reserve Bank may, in consultation with the Central Government, specify:
(a) any class or classes of capital account transactions, 5involving debt
instruments, which are permissible;
(b) the limit up to which foreign exchange shall be admissible for such
transactions;
(c) any conditions which may be placed on such transactions;
Provided that the Reserve Bank or the Central Government shall not impose
any restrictions on the drawal of foreign exchange for payment due on
account of amortisation of loans or for depreciation of direct investments in
the ordinary course of business.
RBI has issued notification for Debt instruments specifying the terms and
conditions. These regulations for foreign investment in debt instruments. For
investment by Indian residents outside India, RBI continues to have power to
regulate the transactions for equity and debt.
(2A) The Central Government may, in consultation with the Reserve Bank,
prescribe— (a) any class or classes of capital account transactions, not
involving debt instruments, which are permissible; (b) the limit up to which
foreign exchange shall be admissible for such transactions; and (c) any
conditions which may be placed on such transactions.
Central Government has issued notification for Non-debt instruments
specifying the terms and conditions. RBI has issued notification for mode of
payment and reporting of Non-debt instruments.
(3) Before 15th October 2019, Section 6(3) specified a list of capital account
transactions which could be regulated by RBI [apart from the general powers
which it had under Section 6(2)]. This list has now been deleted from
15th October 2019.
5
Amended w.e.f. 15-10-2019

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(4) A person resident in India may hold, own, transfer or invest in foreign
currency, foreign security or any immovable property situated outside India
if such currency, security or property was acquired, held or owned by such
person when he was resident outside India or inherited from a person
who was resident outside India.
The RBI vide A.P. (DIR Series) Circular No. 90 dated 9 thJanuary, 2014 has issued
a clarification on section 6(4) of the Act. This circular clarifies that section 6(4)
of the Act covers the following transactions:
(i) Foreign currency accounts opened and maintained by such a person
when he was resident outside India;
(ii) Income earned through employment or business or vocation outside
India taken up or commenced which such person was resident outside
India, or from investments made while such person was resident outside
India, or from gift or inheritance received while such a person was
resident outside India;
(iii) Foreign exchange including any income arising therefrom, and

conversion or replacement or accrual to the same, held outside India by
a person resident in India acquired by way of inheritance from a person
resident outside India.
(iv) A person resident in India may freely utilize all their eligible assets
abroad as well as income on such assets or sale proceeds thereof
received after their return to India for making any payments or to make
any fresh investments abroad without approval of Reserve Bank,
provided the cost of such investments and/or any subsequent payments
received therefor are met exclusively out of funds forming part of
eligible assets held by them and the transactions is not in contravention
to extant FEMA provisions.
(5) A person resident outside India may hold, own, transfer or invest in
Indian currency, security or any immovable property situated in India if such
currency, security or property was acquired, held or owned by a such person
when he was resident in India or inherited from a person who was
resident in India.

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(6) Without prejudice to the provisions of this section, the Reserve Bank may, by
regulation, prohibit, restrict, or regulate establishment in India of a branch,
office or other place of business by a person resident outside India, for
carrying on any activity relating to such branch, office or other place of
business.
Capital Account Transactions [Sec. 6(4) & 6(5)]

PRII PROI
As per Section 6(4) As per Section 6(5)
MAY MAY
HOLD, OWN, TRANSFER HOLD, OWN, TRANSFER

OR INVEST IN FOREIGN OR INVEST IN INDIAN
CURRENCY, FOREIGH CURRENCY, SECURITY
SECURITY OR ANY OR ANY IMMOVABLE
IMMOVABLE PROPERTY PROPERTY SITUATED IN
SITUATED OUTSIDE INDIA
INDIA
IF IF
THE SAME WAS THE SAME WAS

ACQUIRED, HELD OR ACQUIRED, HELD OR
OWNED BY SUCH OWNED BY SUCH
PERSON WHEN HE WAS PERSON WHEN HE WAS
PROI OR INHERITED PRII OR INHERITED
FROM A PROI FROM A PRII
(7) For the purposes of this section, the term “debt instruments” shall mean, such
instruments as may be determined by the Central Government in consultation
with the Reserve Bank.
A capital account transaction as stated earlier is a transaction, which alters the
assets or liabilities, including contingent liabilities, outside India of persons resident
in India or assets or liabilities in India of persons resident outside India would be a
capital account transaction. The section gives a liberty by providing that any person

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may sell or draw foreign exchange to or from an authorised person for capital
account transactions. However, the liberty to do so is subject to the provisions of
sub-section (2) and (2A), which states that the Reserve Bank and the Central
Government may specify class or classes of capital account transactions, which are
permissible limit upto, which the foreign exchange shall be admissible for such
transactions and the conditions which may be placed on such transactions.
Capital account transaction is basically split into the following categories under
Foreign Exchange Management (Permissible capital account transactions)
Regulations, 20006 -:
(I) transaction, which are permissible in respect of persons resident in India and
outside India.
(II) transaction on which restrictions cannot be imposed; and
(III) transactions, which are prohibited.
I. Permissible Transactions
Under sub-section (2) of Section 6, the RBI has issued the Foreign Exchange
Management (Permissible Capital Account Transactions) Regulations, 2000. The
Regulations specify the list of transaction, which are permissible in respect of
persons resident in India in Schedule-I and the classes of capital account
transactions of persons resident outside India in Schedule-II.
Further, subject to the provisions of the Act or the rules or regulations or direction
or orders made or issued thereunder, any person may sell or draw foreign exchange
to or from an authorised person for a capital account transaction specified in the
Schedules; provided that the transaction is within the limit, if any, specified in the
regulations relevant to the transaction.
SCHEDULE I
The list of permissible classes of transactions made by persons resident in India
is:
(a) Investment by a person resident in India in foreign securities.
6
Notification No. FEMA 1 /2000-RB dated 3rd May 2000

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3.30
(b) Foreign currency loans raised in India and abroad by a person resident in
India.
(c) Transfer of immovable property outside India by a person resident in India.
(d) Guarantees issued by a person resident in India in favour of a person resident
outside India.
(e) Export, import and holding of currency/currency notes.
(f) Loans and overdrafts (borrowings) by a person resident in India from a person
(g) Maintenance of foreign currency accounts in India and outside India by a
person resident in India.
(h) Taking out of insurance policy by a person resident in India from an insurance
company outside India.
(i) Loans and overdrafts by a person resident in India to a person resident

outside India.
(j) Remittance outside India of capital assets of a person resident in India.
(k) Undertake derivative contracts

SCHEDULE II
The list of permissible classes of transactions made by persons resident outside
India is:
(a) Investment in India by a person resident outside India, that is to say,
(i) issue of security by a body corporate or an entity in India and
investment therein by a person resident outside India; and
(ii) investment by way of contribution by a person resident outside India to
the capital of a firm or a proprietorship concern or an association of a
person in India.
(b) Acquisition and transfer of immovable property in India by a person resident
outside India.
(c) Guarantee by a person resident outside India in favour of, or on behalf of, a
person resident in India.

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(d) Import and export of currency/currency notes into/from India by a person

(e) Deposits between a person resident in India and a person resident outside
India.
(f) Foreign currency accounts in India of a person resident outside India.
(g) Remittance outside India of capital assets in India of a person resident outside
India.
(h) Undertake derivative contracts
Transactions with no restriction
They are:
(1) For amortisation of loan and
(2) For depreciation of direct investments in ordinary course of business.
Also, restrictions cannot be imposed when drawal is of the purpose of repayments
of loan installments.
Prohibited Transactions
On certain transactions, the Reserve Bank of India imposes prohibition.
(a) no person shall undertake or sell or draw foreign exchange to or from an
authorised person for any capital account transaction,
provided that-
(i) subject to the provisions of the Act or the rules or regulations or
directions or orders made or issued thereunder, a resident individual
may, draw from an authorized person foreign exchange not
exceeding USD 250,000 per financial year or such amount as
decided by Reserve Bank from time to time for a capital account
transaction specified in Schedule I.
Explanation: Drawal of foreign exchange as per item number 1 of
Schedule III to Foreign Exchange Management (Current Account
Transactions) Rules, 2000 dated 3rd May 2000 as amended from time
to time, shall be subsumed within the limit under proviso (a) above.

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3.32
(ii) Where the drawal of foreign exchange by a resident individual for any
capital account transaction specified in Schedule I exceeds USD
250,000 per financial year, or as decided by Reserve Bank from time
to time as the case may be, the limit specified in the regulations relevant
to the transaction shall apply with respect to such drawal.
Provided further that no part of the foreign exchange of USD 250,000, drawn
under proviso (a) shall be used for remittance directly or indirectly to
countries notified as non-co-operative countries and territories by Financial
Action Task Force (FATF) from time to time and communicated by the Reserve
Bank of India to all concerned.
(b) The person resident outside India is prohibited from making investments
in India in any form, in any company, or partnership firm or proprietary
concern or any entity whether incorporated or not which is engaged or
proposes to engage:
(i) In the business of chit fund; Registrar of Chits or an officer authorised
by the state government in this behalf, may, in consultation with the
State Government concerned, permit any chit fund to accept
subscription from Non-resident Indians. Non- resident Indians shall be
eligible to subscribe, through banking channel and on non- repatriation
basis, to such chit funds, without limit subject to the conditions
stipulated by the Reserve Bank of India from time to time
(ii) As Nidhi company;
(iii) In agricultural or plantation activities;
(iv) In real estate business, or construction of farm houses or
Explanation: In “real estate business” the term shall not include
development of townships, construction of residential/commercial
premises, roads or bridges and Real Estate Investment Trusts (REITs)
registered and regulated under the SEBI (REITs) Regulations 2014.; or
(v) In trading in Transferable Development Rights (TDRs).
'Transferable Development Rights' means certificates issued in respect of
category of land acquired for public purpose either by Central or State
Government in consideration of surrender of land by the owner without
monetary compensation, which are transferable in part or whole;

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(c) No person resident in India shall undertake any capital account transaction
which is not permissible in terms of Order S.O. 1549(E) dated April 21, 2017,
as amended from time to time, of the Government of India, Ministry of
External Affairs, with any person who is, a citizen of or a resident of
Democratic People’s Republic of Korea, or an entity incorporated or
otherwise, in Democratic People’s Republic of Korea, until further orders,
unless there is specific approval from the Central Government to carry on any
transaction.
(d) The existing investment transactions, with any person who is, a citizen of
or resident of Democratic People’s Republic of Korea, or an entity
incorporated or otherwise in Democratic People’s Republic of Korea, or any
existing representative office or other assets possessed in Democratic
People’s Republic of Korea, by a person resident in India, which is not
permissible in terms of Order S.O. 1549(E) dated April 21, 2017, as amended
from time to time, of the Government of India, Ministry of External Affairs
shall be closed/ liquidated/disposed/settled within a period of 180 days
from the date of issue of this Notification, unless there is specific approval
from the Central Government to continue beyond that period.”
Thus, a capital account transaction is permitted only if it is specifically permitted

under the regulations. If the transaction is not stated as generally permitted, a prior
specific approval is required.
SUMMARY
 FEMA makes provisions in respect of dealings in foreign exchange.
 FEMA regulates transactions between residents and non-residents.
 Broadly, all current account transactions are free. However, Central
Government can impose reasonable instructions by issuing rules.
 Capital account transactions are regulated by Reserve Bank of India (RBI) and
Central Government.
 FEMA envisages that RBI will have a controlling role in management of
foreign exchange.

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TEST YOUR KNOWLEDGE
MCQ Based Questions

1. In September, 2021, Mr. Purshottam Saha visited Atlanta as well as Athens and
thereafter, London and Berlin on a month-long business trip, for which he
withdrew foreign exchange to the extent of US$ 50,000 from his banker State
Bank of India, New Delhi branch. In December, 2021 he further, withdrew US$
50,000 from SBI and remitted the same to his son Raviyansh Saha who was
studying in Toronto, Canada. In the first week of January, 2022, he sent his
ailing mother Mrs. Savita Saha for a specialised treatment along with his wife
Mrs. Rashmi Saha to Seattle where his younger brother Pranav Saha, holder of
Green Card, is residing. For the purpose of his mother’s treatment and to help
Pranav Saha to meet increased expenses, he requested his banker SBI to remit
US$ 75,000 to Pranav Saha’s account maintained with Citibank, Seattle. In
February, 2022, Mr. Purshottam Saha’s daughter Devanshi Saha got engaged
and she opted for a ‘destination marriage’ to be held in August, 2022 in Zurich,
Switzerland. While on a trip to Dubai in the last week of March, 2022, he again
withdrew US$ 35,000 to be used by him and Devanshi Saha for meeting various
trip expenses including shopping in Dubai. Later, the event manager gave an
estimate of US$ 2,50,000 for the wedding of Devanshi Saha at Zurich,
Switzerland. Which option do you think is the correct one in the light of
applicable provisions of Foreign Exchange Management Act, 1999 including
obtaining of prior approval, if any, from Reserve Bank of India since Mr.
Purshottam Saha withdrew foreign exchange on various occasions from his
banker State Bank of India.
(a) In respect of withdrawal of foreign exchange on various occasions from
his banker State Bank of India and remitting the same outside India
during the financial year 2021-22, Mr. Purshottam Saha is not required
to obtain any prior approval.
(b) In respect of withdrawal of US$ 35,000 in the last week of March, 2022,
for a trip to Dubai, Mr. Purshottam Saha must have obtained prior
approval of Reserve Bank of India since the maximum amount of foreign
exchange that can be withdrawn in a financial year is US$ 1,75,000.

a
(c) After withdrawing US$ 1,00,000, Mr. Purshottam Saha must have
obtained prior approval of Reserve Bank of India for the remaining
remittances made during the financial year 2021-22, otherwise SBI would
not have permitted further withdrawals.
(d) After withdrawing US$ 50,000, Mr. Purshottam Saha must have obtained
prior approval of Reserve Bank of India for the remaining remittances
made during the financial year 2021-22, otherwise SBI would not have
permitted further withdrawals.
2. M/s. Kedhar Sports Academy, a private coaching club, provides coaching for
cricket, football and other similar sports. It coaches sports aspirants pan India.
It also conducts various sports events and campaigns, across the country. In
2022, to mark the 25 th year of its operation, a cricket tournament (akin to the
format of T-20) is being organized by M/s. Kedhar Sports Academy in
Lancashire, England, in the first half of April. The prize money for the ‘winning
team’ is fixed at USD 40,000 whereas in case of ‘runner-up’, it is pegged at USD
11,000. You are required to choose the correct option from the four given below
which signifies the steps to be taken by M/s. Kedhar Sports Academy for
remittance of the prize money of USD 51,000 ( i.e. USD 40,000+USD 11,000) to
England keeping in view the relevant provisions of Foreign Exchange
Management Act, 1999:
(a) For remittance of the prize money of USD 51,000, M/s Kedhar Sports
Academy is required to obtain prior permission from the Ministry of Human
Resource Development (Department of Youth Affairs and Sports).
(b) For remittance of the prize money of USD 51,000, M/s Kedhar Sports
Academy is required to obtain prior permission from the Reserve Bank of
India.
(c) For remittance of the prize money of USD 51,000, M/s Kedhar Sports
Academy is not required to obtain any prior permission from any
authority, whatsoever, and it can proceed to make the remittance.
(d) For remittance of the prize money of USD 51,000, M/s Kedhar Sports
Academy is required to obtain prior permission from the Ministry of
Finance (Department of Economic Affairs).

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3. Akash Ceramics Limited, an Indian company, holds a commercial plot in Chennai

which it intends to sell. M/s. Super Seller, a real estate broker with its Head Office
in the USA, has been appointed by Akash Ceramics Limited to find some suitable
buyers for the said commercial plot in Chennai which is situated at a prime
location. M/s. Super Seller identifies Glory Estate Inc., based out of USA, as the
potential buyer. It is to be noted that Glory Estate Inc. is controlled from India
and hence, is a ‘Person Resident in India’ under the applicable provisions of
Foreign Exchange Management Act, 1999. A deal is finalised and Glory Estate
Inc. agrees to purchase the commercial plot for USD 600,000 (assuming 1 USD
= ` 70). According to the agreement, Akash Ceramics Limited is required to pay
commission @ 7% of the sale proceeds to M/s. Super Seller for arranging the sale
of commercial plot to Glory Estate Inc. and commission is to remitted in USD to
the Head Office of M/s. Super Seller located in USA. Considering the relevant
provisions of Foreign Exchange Management Act, 1999, which statement out of
the four given below is correct (ignoring TDS implications arising under the
Income-tax Act, 1961):
(a) There is no requirement of obtaining prior permission of Reserve Bank of
India (RBI) for remittance of commission upto USD 25,000 by Akash
Ceramics Limited to M/s. Super Seller but for the balance commission of
USD 17,000, prior permission of RBI is required to be obtained.
(b) There is no requirement of obtaining prior permission of Reserve Bank of
India (RBI) for remittance of commission upto USD 30,000 by Akash
Ceramics Limited to M/s. Super Seller but for the balance commission of
USD 12,000, prior permission of RBI is required to be obtained.
(c) There is no requirement of obtaining prior permission of Reserve Bank of
India (RBI) for remittance of entire commission of USD 42,000 by Akash
Ceramics Limited to M/s. Super Seller.
(d) It is mandatory to obtain prior permission of Reserve Bank of India (RBI)

for remittance of entire commission of USD 42,000 by Akash Ceramics
Limited to M/s. Super Seller.
4. Mohita Periodicals and Mags Publications Limited, having registered office in
Chennai, has obtained consultancy services from an entity based in Fran ce for
setting up a software programme to strengthen various aspects relating to

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publications. The consideration for such consultancy services is required to be

paid in foreign currency. The compliance officer of Mohita Periodicals and Mags
Publications Limited, Mrs. Ritika requires your advice regarding the foreign
exchange that can be remitted for the purpose of obtaining consultancy services
from abroad without prior approval of Reserve Bank of India. Out of the
following four options, choose the one which correctly portrays the amount of
foreign exchange remittable for the given purpose after considering the
provisions of the Foreign Exchange Management Act, 1999 and regulations
made thereunder:
(a) Permissible amount of foreign exchange that can be remitted by Mohita
Periodicals and Mags Publications Limited for obtaining consultancy
services from an entity based in France without prior approval of RBI is
US$ 50,000,000.
(b) Permissible amount of foreign exchange that can be remitted by Mohita
US$ 10,000,000.
(c) Permissible amount of foreign exchange that can be remitted by Mohita
US$ 5,000,000.
(d) Permissible amount of foreign exchange that can be remitted by Mohita
US$ 1,000,000.
5. After five years of stay in USA, Mr. Umesh came to India at his paternal place
in New Delhi on October 25, 2021, for the purpose of conducting business with
his two younger brothers Rajesh and Somesh and contributed a sum of
` 10,00,000 as his capital. Simultaneously, Mr. Umesh also started a proprietary
business of selling artistic brass ware, jewellery, etc. procured directly from the
manufacturers based at Moradabad. Within a period of two months after his
arrival from USA, Mr. Umesh established a branch of his proprietary business
at Minnesota, USA. You are required choose the appropriate option with respect
to residential status of Mr. Umesh and his branch for the financial year 2022-

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23 after considering the applicable provisions of the Foreign Exchange

Management Act, 1999:
(a) For the financial year 2022-23, Mr. Umesh and his branch established at
Minnesota, USA, are both persons resident outside India.
(b) For the financial year 2022-23, Mr. Umesh is a resident in India but his
branch established at Minnesota, USA, is a person resident outside India.
(c) For the financial year 2022-23, Mr. Umesh and his branch established at
Minnesota, USA, are both persons resident in India.
(d) For the financial year 2022-23, Mr. Umesh is a person resident outside India
but his branch established at Minnesota, USA, is a person resident in India.
1. ‘Printex Computer’ is a Singapore based company having several business units
all over the world. It has a unit for manufacturing computer printers with its
Headquarters in Pune. It has a Branch in Dubai which is controlled by the
Headquarters in Pune. What would be the residential status under the FEMA,
1999 of printer units in Pune and that of Dubai branch?
2. Mr. Sane, an Indian National desires to obtain Foreign Exchange for the
following purposes:
(i) Remittance of US Dollar 50,000 out of winnings on a lottery ticket.
(ii) US Dollar 100,000 for sending a cultural troupe on a tour of U.S.A.
Advise him whether he can get Foreign Exchange and if so, under what
conditions?
3. State which kind of approval is required for the following transactions under
the Foreign Exchange Management Act, 1999:
(i) X, a Film Star, wants to perform along with associates in New York on the
occasion of Diwali for Indians residing at New York. Foreign Exchange
drawal to the extent of US dollars 20,000 is required for this purpose.
(ii) R wants to get his heart surgery done at United Kingdom. Up to what
limit Foreign Exchange can be drawn by him and what are the approvals
required?

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4. Referring to the provisions of the Foreign Exchange Management Act, 1999,

state the kind of approval required for the following transactions:
(i) M requires U.S. $ 5,000 for remittance towards hiring charges of
transponders.
(ii) P requires U.S. $ 2,000 for payment related to call back services of
telephones.
5. Suresh resided in India during the Financial Year 2020-2021. He left India on
15th July 2021 for Switzerland for pursuing higher studies in Biotechnology for
2 years. What would be his residential status under the Foreign Exchange
Management Act, 1999 during the Financial Years 2021-2022 and 2022-2023?
Mr. Suresh requires every year USD 25,000 towards tuition fees and USD 30,000
for incidental and stay expenses for studying abroad. Is it possible for Mr.
Suresh to get the required Foreign Exchange and, if so, under what conditions?
6. (i) Mr. P has won a big lottery and wants to remit US Dollar 20,000 out of
his winnings to his son who is in USA. Advise whether such remittance is
possible under the Foreign Exchange Management Act, 1999.
(ii) Mr. Z is unwell and would like to have a kidney transplant done in USA.
He would like to know the formalities required and the amount that can
be drawn as foreign exchange for the medical treatment abroad.
7. Mr. Rohan, an Indian Resident individual desires to obtain Foreign Exchange
for the following purposes:
(A) US$ 120,000 for studies abroad on the basis of estimates given by the
foreign university.
(B) Gift Remittance amounting US$ 10,000.
Advise him whether he can get Foreign Exchange and if so, under what
condition(s)?

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3.40
ANSWERS
Answers to MCQ based Questions

1. (a) In respect of withdrawal of foreign exchange on various occasions
from his banker State Bank of India and remitting the same outside
India during the financial year 2021-22, Mr. Purshottam Saha is not
required to obtain any prior approval.
2. (c) For remittance of the prize money of USD 51,000, M/s Kedhar Sports
Academy is not required to obtain any prior permission from any
authority, whatsoever, and it can proceed to make the remittance.
3. (d) It is mandatory to obtain prior permission of Reserve Bank of India

(RBI) for remittance of entire commission of USD 42,000 by Akash
Ceramics Limited to M/s. Super Seller.
4. (d) Permissible amount of foreign exchange that can be remitted by

Mohita Periodicals and Mags Publications Limited for obtaining
consultancy services from an entity based in France without prior
approval of RBI is US$ 1,000,000.
5. (c) For the financial year 2022-23, Mr. Umesh and his branch established
at Minnesota, USA, are both persons resident in India.

1. Printex Computer being a Singapore based company would be person
resident outside India [(Section 2(w)]. Section 2 (u) defines ‘person’ under
clause (viii) thereof, as person would include any agency, office or branch
owned or controlled by such person. The term such person appears to refer
to a person who is included in clause (i) to (vi). Accordingly, Printex unit in
Pune, being a branch of a company would be a ‘person’.
Section 2(v) defines a person resident in India. Under clause (iii) thereof
person resident in India would include an office, branch or agency in India
owned or controlled by a person resident outside India. Printex unit in Pune

a
is owned or controlled by a person resident outside India, and hence it, would
be a ‘person resident in India.’
However, Dubai Branch though not owned is controlled by the Printer unit in
Pune which is a person resident in India. Hence, the Dubai Branch is a person
resident in India.
2. Under provisions of section 5 of the Foreign Exchange Management Act, 1999
certain Rules have been made for drawal of Foreign Exchange for Current
Account transactions. As per these Rules, Foreign Exchange for some of the
Current Account transactions is prohibited. As regards some other Current
Account transactions, Foreign Exchange can be drawn with prior permission
of the Central Government while in case of some Current Account
transactions, prior permission of Reserve Bank of India is required.
(i) In respect of item No.(i), i.e., remittance out of lottery winnings, such
remittance is prohibited and the same is included in First Schedule to the
Foreign Exchange Management (Current Account Transactions) Rules, 2000.
Hence, Mr. Sane cannot withdraw Foreign Exchange for this purpose.
(ii) Foreign Exchange for meeting expenses of cultural tour can be
withdrawn by any person after obtaining permission from Government
of India, Ministry of Human Resources Development, (Department of
Education and Culture) as prescribed in Second Schedule to the Foreign
Exchange Management (Current Account Transactions) Rules, 2000.
Hence, in respect of item (ii), Mr. Sane can withdraw the Foreign
Exchange after obtaining such permission.
In all the cases, where remittance of Foreign Exchange is allowed, either by
general or specific permission, the remitter has to obtain the Foreign
Exchange from an Authorised Person as defined in Section 2(c).
3. Approval to the following transactions under FEMA, 1999:
(i) Foreign Exchange drawals for cultural tours require prior
permission/approval of the Ministry of Human Resources Development
(Department of Education and Culture) irrespective of the amount of
foreign exchange required. Therefore, in the given case X, the Film Star
is required to seek permission of the said Ministry of the Government
of India.

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(ii) Individuals can avail of foreign exchange facility within the limit of USD
2,50,000 only. Any additional remittance in excess of the said limit for
the expenses requires an approval from RBI. However, in connection
with medical treatment abroad, no approval of the Reserve Bank of
India is required. Therefore, R can draw foreign exchange up to amount
estimated by a medical institute offering treatment.
4. Under section 5 of the Foreign Exchange Management Act, 1999, and Rules
relating thereto, some current account transactions require prior approval of
the Central Government, some others require the prior approval of the
Reserve Bank of India, some are freely permitted transactions and some
others are prohibited transactions. Accordingly,
(i) It is a current account transaction, where M is required to take approval
of the Central Government for drawal of foreign exchange for
remittance of hire charges of transponders.
(ii) Withdrawal of foreign exchange for payment related to call back
services of telephone is a prohibited transaction. Hence, Mr. P cannot
obtain US $ 2,000 for the said purpose.
5. Residential Status: According to section 2(v) of the Foreign Exchange
Management Act, 1999, ‘Person resident in India’ means a person residing in
India for more than 182 days during the course of preceding financial year
[Section 2(v)(i)]. However, it does not include a person who has gone out of
India or who stays outside India for employment outside India or for any other
purpose in such circumstances as would indicate his intention to stay outside
India for an uncertain period.
Generally, a student goes out of India for a certain period. In this case, Mr.
Suresh who resided in India during the financial year 2020-2021 left on
15.7.2021 for Switzerland for pursuing higher studies in Biotechnology for 2
years, he will be resident as he has gone to stay outside India for a ‘certain
period’. RBI has however clarified in its AP circular no. 45 dated 8 th December
2003, that students will be considered as non-residents. This is because
usually students start working there to take care of their stay and cost of
studies.

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Mr. Suresh will be treated as person resident in India for Financial Year 2021-
2022 till 16th July 2021 and from 17th July 2021, he will be considered as
person resident outside India.
However, during the Financial Year 2022-2023, Mr. Suresh will be considered
as person resident outside India as he left India on 15th July 2021.
Foreign Exchange for studies abroad: According to Para I of Schedule III to
Foreign Exchange Management (Current Account Transactions), Amendment
Rule, 2015 dated 26th May, 2015, individuals can avail of foreign exchange
facility for the studies abroad within the limit of USD 2,50,000 only. Any
additional remittance in excess of the said limit shall require prior approval
of the RBI. Further proviso to Para I of Schedule III states that individual may
be allowed remittances (without seeking prior approval of the RBI) exceeding
USD 2,50,000 based on the estimate received from the institution abroad. In
this case the foreign exchange required is only USD 55,000 per academic year
and hence approval of RBI is not required.
6. Remittance of Foreign Exchange (Section 5 of the Foreign Exchange
Management Act, 1999): According to section 5 of the FEMA, 1999, any
person may sell or draw foreign exchange to or from an authorized person if
such a sale or drawal is a current account transaction. Provided that Central
Government may, in public interest and in consultation with the reserve bank,
impose such reasonable restrictions for current account transactions as may
be prescribed.
As per the rules, drawal of foreign exchange for current account transactions
are categorized under three headings-
1. Transactions for which drawal of foreign exchange is prohibited,
2. Transactions which need prior approval of appropriate government of
India for drawal of foreign exchange, and
3. Transactions which require RBI's prior approval for drawl of foreign

exchange.
(i) Mr. P wanted to remit US Dollar 20,000 out of his lottery winnings
to his son residing in USA. Such remittance is prohibited and the
same is included in the Foreign Exchange Management (Current
Account Transactions) Rules, 2000.

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3.44
Hence Mr. P cannot withdraw foreign exchange for this purpose.

(ii) “Remittance of foreign exchange for medical treatment abroad”
requires prior permission or approval of RBI where the individual
requires withdrawal of foreign exchange exceeding USD 250,000.
The Schedule also prescribes that for the purpose of expenses in
connection with medical treatment, the individual may avail of
exchange facility for an amount in excess of the limit prescribed
under the Liberalized Remittance Scheme, if so required by a
medical institute offering treatment.
Therefore, Mr. Z can draw foreign exchange up to the USD 250,000 and no
prior permission/ approval of RBI will be required. For amount exceeding the
above limit, authorised dealers may release foreign exchange based on the
estimate from the doctor in India or hospital or doctor abroad.
7. (A) Remittance of Foreign Exchange for studies abroad: Foreign
exchange may be released for studies abroad up to a limit of US $
250,000 for the studies abroad without any permission from the RBI.
Above this limit, RBI’s prior approval is required. Further proviso to Para
I of Schedule III states that individual may be allowed remittances
exceeding USD 250,000 based on the estimate received from the
institution abroad. In this case since US $ 120,000 is the drawal of
foreign exchange, so permission of the RBI is not required.
(B) Gift remittance exceeding US $ 10,000: Under the provisions of
section 5 of FEMA 1999, certain Rules have been made for drawal of
foreign exchange for current account transactions. Gift remittance is a
current account transaction. Gift remittance exceeding US $ 250,000
can be made after obtaining prior approval of the RBI. In the present
case, since the amount to be gifted by an individual, Mr. Rohan is USD
10,000, there is no need for any permission from the RBI.


CA 2Cor&OtLaw

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© The Institute of Chartered Accountants of India

© THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

Basic draft of this publication was prepared by CA. Vandana D Nagpal.

Edition : April, 2023

Committee/Department : Board of Studies (Academic)

Price : ` /- (For All Modules)

ISBN No. : 978-81-962488-9-5

Published by : The Publication & CDS Directorate on behalf of

© The Institute of Chartered Accountants of India

Evolving role of a CA - Shift towards strategic decision making

The traditional role of a Chartered Accountant restricted to accounting and

Skill requirements at Intermediate Level

Corporate and Other Laws: Dynamic & Interesting

© The Institute of Chartered Accountants of India

I. The Companies Act, 2013 1. The General Clauses Act, 1897

II. The Limited Liability 2. Interpretation of Statutes

These laws of the country undergo significant changes through amendments/

BoS (Academic) – Value added study materials

Framework of Chapters– Uniform Structure comprising of specific

© The Institute of Chartered Accountants of India

Components of About the component

Happy Reading and Best Wishes!

© The Institute of Chartered Accountants of India

PAPER – 2: CORPORATE AND OTHER LAWS

PART I – COMPANY LAW AND LIMITED LIABILITY PARTNERSHIP LAW

I. The Companies Act, 2013 – including important rules and drafting of

3. Prospectus and Allotment of Securities

© The Institute of Chartered Accountants of India

PART II- OTHER LAWS (30 MARKS)

© The Institute of Chartered Accountants of India

© The Institute of Chartered Accountants of India

DETAILED CONTENTS: MODULE – 1

Learning Outcomes............................................................................................................. ..... .1.1

Chapter Overview .................................................................................................................... 1.2

1. Introduction .................................................................................................................... 1.2

2. Short Title, Extent, Commencement and Application ......................................... 1.2

3. Definitions.............................................................................................................. ........... 1.4

Test Your Knowledge ............................................................................................................ 1.27

CHAPTER 2 : INCORPORATION OF COMPANY AND MATTERS INCIDENTAL

Learning Outcomes ................................................................................................................. 2.1

Chapter Overview .................................................................................................................... 2.2

1. Introduction to Incorporation of Companies & Promotor ................................ 2.3

2. Formation of Company ..................................................................... ........................... 2.4

3. Members Severally liable in certain cases i.e. Reduction in Minimum

4. Incorporation of Company ........................... ........................................................... 2.10

5. Formation of Companies with Charitable Objects, etc. .................................... 2.20

6. Effect of Registration ................................................................................................. 2.27

7. Memorandum of Association – MOA .................................................................... 2.28

8. Articles of Association – AOA .................................................................................. 2.38

9. Doctrine of Constructive Notice and Doctrine of Indoor

10. Act to Override Memorandum, Articles, etc. ....................................................... 2.46

11. Effect of Memorandum and Articles .................................................................... 2.46

© The Institute of Chartered Accountants of India

12. Alteration of memorandum ..................................................................................... 2.48

13. Alteration of articles ................................................................................................... 2.54

14. Alteration of memorandum or articles to be noted in every copy .............. 2.55

15. Registered office of company ................................................................................ 2.55

16. Commencement of business etc. .......................................................................... 2.59

17. Conversion of companies already Registered ................................................... 2.61