Major Amendment- Companies Amendment Act, 2017

Companies Amendment Act, 2017

1.    “ASSOCIATE COMPANY” [Section 2(6)] {Not Notified}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 purposes of this clause, “significant influence” means control of at least twenty per cent of total share capital, or of business decisions under an agreement;

Issue in Definition	Total share capital comprises the aggregate of paid up equity share capital and convertible preference share capital. Hence a company may be treated as associate company merely bases on ownership of Optionally convertible redeemable preference shares.
Amended Provision	Significant Influence’ under the definition of Associate Company: Significant influence to mean control of at least 20% of voting power or control or participation in business decision under an agreement.
Implication	After Amendment – To check whether a Company is associate Company or not Only Equity share Capital with Voting Right shall be considered. This Amendment come in force to remove the ambiguity of considering Convertible Preference share capital to check status as Associate.
Still an Issue	The definition should provide for participation in business decision rather than control thereof. If an investor exercise control over the business decisions, then the company on which the control is exercised is a subsidiary company and not an associate Company.

“Joint Venture”

Companies Act, 2013 doesn’t define the term Joint Venture.

Amendment Act	In the 2017 Amendment Act, an explanation to the definition of the term ‘associate Company’ is added to explain joint venture. “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.”
Ambiguity	However, the Amendment Act doesn’t define the term ‘joint venture’. What we understand that the objective of the change is to bring definition more in line with accounting standards, particularly Ind AS. However, this change may not fully meet the desired objective

2.   SUBSIDIARY COMPANY….[Section 2(87)] {Still not Notified}

“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

(ii) Exercises or controls more than one-half of the total share capital either at its own or together with one or more of its subsidiary companies

Issue in Definition	This definition also results in issues/challenges similar to those for the definition of the term ‘Subsidiary Company’.
Amended Provision	Exercise or control more than one half of the Total Voting Power
Implication	To Check relationship of Holding Subsidiary only Equity Share Capital with Voting Right shall be consider. Preference Share Capital shall not consider.
Alignment	This will align ‘subsidiary’ definition under the 2013 Act with AS 21 Consolidated Financial Statement. However, it will continue to be different from definition under Ind As.
Definition in Ind AS	Under Ind AS an option to convert to equity shares would be considered for deciding if  a company is a subsidiary, provided the option is substantive and exercisable when the relevant decisions are to be taken.

3.   HOLDING COMPANY: [Section 2(46)] {Notified}

Holding Company”, in relation to one or more other companies, means a Company of which such companies are subsidiary companies;

Ambiguity	Unlike the definition of the term ‘subsidiary company’, this definition does not contain any reference to a body corporate.
Amended Provision	The definition of the term ‘Holding Company’, the expression “Company” includes any “Body Corporate”.

Implication	LLP/ Foreign Co. etc to be considered as ‘Holding Company” if holds more than 50% of voting right in any Company.
We believe it is a minor amendment aimed at correcting an anomaly. It should not have significant financial reporting implication.

4.   DEBENTURE[Section 2(30)] {Notified} 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

Ambiguity	the phrase ‘any other instrument of a company evidencing a debt’ has made the definition very broad and included instruments such as commercial papers and other money market instruments, which are often used as an important short-term fund raising source by eligible companies and are well regulated under the RBI regulations
Amended Provision	the term debenture will not include the following:      I.        Instruments referred to in Chapter III-D of the Reserve Bank of India Act, 1934. Chapter III-D of the RBI Act regulates transaction in derivatives, money market instrument, securities etc. Money market instruments include call or notice money, term money, repo, reverse repo, certificate of deposit, commercial usance bill, commercial paper and such other debt instrument of original or initial maturity up to one year as the RBI may specify from time to time.    II.        Such other instrument, as may be prescribed by the Central Government in consultation with the RBI.
Implication	The term ‘debenture’ will not include money market instruments, which are used for short- term fund raising by eligible Companies and are regulated under the RBI regulations.

5.   FINANCIAL YEAR [Section 2(41)]

Uniform Financial Year

Section 2 (41) of the 2013 Act required companies, except specified International Financial Services Centre (IFSC) companies, to adopt a uniform accounting year ending 31 March.

However, a proviso to the definition states that a company may apply to the National Company Law Tribunal (Tribunal/NCLT) for adoption of a different financial year if it satisfies the following two criteria:

§  It is a holding or subsidiary of a company incorporated outside India.

§  It is required to follow a different financial year for consolidation of its financial statement outside India.

Ambiguity	Companies which are associates or joint ventures of a company incorporated outside India did not have right to approach the NCLT for adopting a different financial year-end, though their financial statements were also taken into consideration in the preparation of CFS outside India
Amended Provision	Associate company of a company incorporated outside India can also apply to the NCLT for a different financial year. Hence, the relief will apply to joint ventures also.

                                            

6.   KEY MANAGERIAL PERSONNEL….[Section 2(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; and

Amended Provision	To include (v) “such other officer not more than one level below the directors who is in whole time employment and designated as KMP by the Board
Implication	Board of Directors can appoint a person one level below Director also as KMP.

7.   NET WORTH….[Section 2(57)]

“net worth” means the aggregate value of the paid -up share capital and all reserves created out of the profits and securities premium 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

Amended Provision	To include “the Debit or Credit balance of Profit and Loss account in the calculation of Net Worth”.
Implication	Credit balance of P&L will increase the net worth and Debit balance of P&L with decrease the net worth
Net worth of Company reflects the ‘intrinsic value’. Hence this is a clarificatory change, one that was important to make.

8.   TURNOVER….[Section 2(91)]

“Turnover” means the aggregate value of the realization of amount made from the sale, supply or distribution of goods or on account of services rendered, or both, by the company during a financial year.

Ambiguity	From the definition, it was not clear whether indirect taxes such as excise duty/Goods and Services Tax (GST) will be included in or excluded from turnover
Example: . From a financial reporting perspective, a company collects GST on behalf of the Government and therefore it is excluded from revenue. Consequently, it was not clear whether the determination of turnover under the 2013 Act will be in line with the financial statements or it will be the gross amount received from customer.
Amended Provision	Turnover to mean the gross amount of revenue recognized 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
Implication	Net of Taxes to be Considered. Hence, going forward, revenue recognized in the financial statements will be turnover under the statute as well

9.   OTHER DEFINITIONS…

Small Company [Section 2(85)]	To Check the status of Company as Small or not “Turnover should be as per profit and loss account for the immediately preceding financial year” and not as per its last financial year.
Cost Accountant [Section 2(28)]	Cost Accountant means a person who is a member of the Institute of Cost Accountants of India and who hold a Valid Certificate of Practice.

Amendment in Sections

A.               New Section 3A- Members Severally Liable certain Cases:

{Notified w.e.f. 9^th February, 2018}

In case Number of Members reduced from Statutory Minimum i.e. 2 in case of Private Limited Company or 7 in case of Public Limited Company, Company carry business for more than 6 month.

Then the member shall be liable for the payment of the whole debts of the Company contracted during that time.

This Section was there in the Companies Act, 1956 Section 45 but was missing from the Companies Act, 2013.

B.       IMPACT ON INCORPORATION OF COMPANY:

I.        Alteration in Period of reservation of Name - Section 4(5)(i) - Memorandum::

As per CAA-2017, the name shall be preserved for the following period:

·        In case of Incorporation of New Company: Name shall be reserved for the 20 days from the date of approval. (earlier it was available for 60 days)

·        In case of Change of Name: Name shall be reserved for the 60 days from the date of approval.

II.        Affidavit by Subscriber – Section 7::

At the time of incorporation of the company, declaration by each subscriber will be required to be attached instead of an affidavit, as currently provided.

III.        Registered Office – Section 12::

The company shall within 30 days of its incorporation have registered office instead of current requirement to have registered office on and from the 15 day of its incorporation

Notice of Every Change of the situation of the registered office shall be given to the Registrar within 30 days instead of 15 days.

IV.        Authentication of Documents [Section 21]:: {Notified w.e.f. 9^th Feb, 2018}

The change permits Board to authorise any employee of the company for authentication of documents, proceedings and contracts of the company.

 C.      IMPACT ON CHARGES:

a)   Exemption List of Charges [Section 77]::

This section shall not apply to certain charges, as may be prescribed by the Central Government in consultation with the Reserve Bank of India.

(Like: Hypothecations, Pledge etc.)

b)  Time Period for Satisfaction of Charges [Section 82]::

Timeline for filing of satisfaction of charge is to be increased to 300 days on payment of additional fee. (same as creation of charge)

D.      IMPACT ON FUNDINGS:

a)   PRIVATE PLACEMENT OF SHARES - SECTION 42::

The entire Section 42 has been substituted by the Amendment Act, 2017. Please find below the major changes:

1.      Right of Renunciation:

The Private Placement offer shall not carry any renunciation right. Only the person in whose name offer letter issued can apply for the subscription.

2.      Modes for Payment of Subscription Money:

Subscription money shall be paid either by cheque or demand draft or other banking channel or not by cash. Shares under Private Placement can’t be subscribed by payment in cash.

3.      Use of Allotment Money:

A company shall not utilize monies raised through private placement unless allotment is made and the return of allotment (i.e. e-form PAS-3) is filed with the Registrar in accordance with sub-section (8).

This is major change by Amendment Act, 2017. After amendment without filing of e-form PAS-3 for allotment of Shares Company can’t use the funds received from subscription.

Food for Thought::

What shall be the implication if Company use money, before filing of e-form PAS-3?

4.      No further offer till completion of earlier offer:

No offer or invitation of security shall be made unless allotments with respect to offer or invitation made earlier in respect of any other kind of security in completed.

5.      Separate Bank Account:

The money so received shall be kept in a separate bank account of the   

company and utilized only for allotment (or repayment).

6.      If not allotted within 60 days:

If allotment is not made within 60 days then till 75th day the monies have to be repaid. Failure to repay has a liability of interest at 12% pa.

b)  Allotment of Share at Discount- Section 53::

Issuance of shares at discount allowed, subject to the same is issued to creditors when debt is converted into shares in pursuance of any statutory resolution plan or debt restructuring scheme in accordance with any guidelines or directions or regulations specified by Reserve Bank of India under the Banking Regulation Act, 1949 or the Reserve Bank of India Act 1934.

c)   Issue of Sweat Equity Shares- Section 54::

It is allowed issue of sweat equity shares at any time after registration of the Company.

d)  Right Issue of Shares- Section 62::

The change in the provision relates to the mode of sending the notice for rights offer. Section 62(2) has been relaxed to include courier or other modes of delivery capable of providing proof of delivery.

Right issue of offer letter can be sent through courier also.

E.    ANNUAL RETURN

i.        The requirement of extract of annual return to the board‘s report in Form MGT-9 has been omitted

ii.        Sufficient that the web-link of the annual return be disclosed in the board‘s report.

iii.        Requirement related to disclosing indebtedness omit from the Annual Return.

iv.        Changed in the particular of Annual Return

v.        The Central Government may prescribe abridged form of annual return for One Person Company (‘OPC’), Small Company and such other class or classes of companies as may be prescribe.

·        Whether shares are listed on stock exchange

·        Particular of Holding Or Subsidiary Companies

·        Remuneration to Directors or Key managerial Personnel

·        Net worth

·        Turnover

vi.        Removal of reference of Section 403: Due to this amendment Companies shall be required to file the Annual Return within 60 day of AGM from 61^st day it shall be considered as default. Now the additional time period of 270 days removed from this sub section.

Impact of this Amendment:

In case of company fails to file Annual return within 60 days of AGM

     i.        Company and the officer shall be liable to fine from the 61^st day itself.

   ii.        Additional fees shall be Rs. 100/- per day from 61^st Day in case of one time default.

  iii.        Additional fees shall be double from 61^st Day in case of continue default more than once.

  iv.        Exemption of Private Limited Company shall be withdrawn from the 61^st Day.

F.    General Meeting:

Annual General Meeting- Section 96::

Annual General Meeting (‘AGM’) of 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.

Extra- Ordinary General Meeting- Section 100::

Extraordinary General Meeting (‘EGM’) of wholly owned subsidiary of a company incorporated outside India can be held outside India.

Convening of general meetings at a shorter notice i.e. - Section 101::

§  In case of an annual general meeting with the consent of at least 95% of the members entitled to vote thereat and

§  In case any other general meeting with the consent of at least majority in number (i.e. more than 50%) and 95% (ninety five percent) of such part of the paid up share capital of the company giving a right to vote at such a meeting.

  

G.  Statutory Auditor:

The auditor of a company is appointed by the shareholders at the AGM, for a consecutive period of five years. However, the appointment needs to be ratified each year at the AGM. The 2013 Act was silent on the implications of non-ratification of the auditor appointment at the AGM. In the absence of clarity, the following two views were possible:

§  If shareholders do not ratify the appointment of the auditor at the AGM, it would tantamount to removal of the auditor from the office.

§  Section 140(1) of the 2013 Act requires that the auditor appointed under section 139 can be removed from its office before the expiry of term only by passing a special resolution of the company at the AGM and after obtaining previous approval from the Central Government

However, The Committee was of the view that a company should not be allowed to remove the auditor merely by non-ratification at the AGM. Rather, it should be required to follow procedures for removal of the auditor before the completion of the five-year term, viz., special resolution at the general meeting and approval from the Central Government

§  Ratification of Auditor- Section 139::

The requirement related to annual ratification of appointment of auditor by members is omitted. This change will avoid potential conflict between two requirements and is supportive of auditor independence

This provision is supportive to auditor independence.

§  Access of Accounts of Associate Company::

Earlier Holding Company could have the right to access records of associate companies. Auditors of holding company can have access records of associate companies also along with subsidiaries Companies

§  Qualification & Disqualification of Auditor- Section 141::

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 will not be eligible for appointment as Auditor.

Services u/s 144(1)

(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

There will be no restrictions in rendering these services to another companies.

§  Fine in case of failure to file resignation by Auditor in ADT-3 reduced to 50,000/- or the remuneration of auditor whichever is less.

H. Director:

§  For the purpose of Resident Director 182 days to be computed with reference to Financial Year. However, 182 days stay in India in the current financial year and not the previous financial year.

§  In case of New Companies requirement of 182 days shall apply proportionately at the end of the financial year.

Suggestion: Companies will need to plan in advance so that they are compliant with this requirement at the end of the financial year. In some cases, they may even need to enter into an arrangement with one or more directors so that they stay in India for a minimum 182 days in the financial year.

§  The requirement of deposit of rupees one lakh with respect to nomination of directors shall not be applicable in case of appointment of independent directors or directors nominated by nomination and remuneration committee or a director recommended by the Board of Directors of the Company, in the case of a company not required to constitute Nomination and Remuneration Committee. (Section 160)

§  Directorship in the Dormant Company shall not be including in the limit of 20 Companies.

§  Filing of e-form DIR-11 by retiring Director is Optional. (Section 168)

§  A person holding directorship in the Company can’t appoint as alternate Director. (Section 161)

§  Companies may fill casual vacancy by the Board and casual vacancy filed by the Board shall be subsequently approved in the immediate next general meeting. (Section 161)

§  Disqualification for appointment of Director Section 164.

When a Director is appointed in Company which is in default of filling of Financial statement or annual return or repayment of deposits or pay interest or redemption or debentures or payment of interest or redemption of debentures payment of interest thereon or payment of dividend such director shall not incur the disqualification for a period of 6 month from the date of his appointment.

§  Vacancy of Office of Director Section 167.

If the Director incurs disqualification mentioned in section 164(2), then he shall vacant office in all the Companies other than the Company which is in default.

I.       Board Meeting:

a)   Presence through video Conferencing: (Section 173)

Where there is quorum in a meeting through physical presence of directors, any other director may participate through video conferencing or other audio visual means in such meeting on any matter specified under the first proviso (i.e. restricted matters).

Restricted Matters:

(i) the approval of the annual financial statements;

(ii) the approval of the Board’s report;

(iii) the approval of the prospectus;

(iv) the Audit Committee Meetings for consideration of financial statement

(v) the approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover

b)  Audit Committee: (Section 177) Only Every Listed Public Company shall constitute Audit Committee. Companies listed due to debenture listing not required Audit Committee.

c)   Nomination & Remuneration Committee: (Section 178) Only Every Listed Public Company shall constitute Nomination & Remuneration Committee. Companies listed due to debenture listing not required Nomination & Remuneration Committee.

J.            Director Report

§  The requirement of the extract of the annual return in Form MGT-9 to be included in the board‘s report has been omitted, instead web address or link of the annual return to be provided in Board Report.

§  Disclosures which have been provided in the financial statement shall not be required to be reproduced in the report again (like: Section 186, 188)

§  Instead of exact text of the policies, key feature of policies along with its web link shall be disclosed in Board report.

§  Abridge Board Report for Small Companies and OPC

K.         Financial Statement:

§  Sign of Financial Statement:

CEO whether appointed as director or not will sign the financial statement. Therefore, now onwards CS, CFO and CEO all three are required to sign the financial statement mandatory.

§  Allowed the filing of unaudited financial statements of foreign subsidiary which is not required to get its accounts audited along with a declaration to that effect.

§  Only listed Companies having a subsidiary or subsidiaries will be required to place separate audited accounts in respect of each of subsidiary on their website, if any. This requirement will not apply to non-listed Companies.

§  Both listed and non-listed companies will be required to provide subsidiary financial statements to a member of the Company who asks for it.

§  Removal of reference of Section 403: Due to this amendment Companies shall be required to file the Financial Statement within 30 day of AGM from 31^st day it shall be considered as default. Now the additional time period of 270 days removed from this sub section.

In case of company fails to file Financial Statement within 30 days of AGM Company and the officer shall be liable to fine from the 31^st day itself.

  L.           DEPOSIT (Section 73-76)

§  A Company accepting deposit will be required to deposit and keep in a schedule bank the amount which is not less than 20% of the amount of deposits  maturing during the current financial year. There will be no need to deposit any amount in respect of deposits maturing in the next financial year.

§  Deposit Insurance: Requirement of providing Deposit Insurance Omit.

§  Impact on Past Defaults:

To invite, accept or renew any deposits, section 73(2)(e) of the 2013 Act requires a certification from the company that no default has been committed either in the repayment of deposits or interest thereon, accepted either before or after the commencement of the 2013 Act. This requirement apparently covers all past defaults, without any time limit.

§  The Companies Law Committee observed that this requirement was too harsh on companies which may have defaulted due to reasons beyond their control, such as industry conditions at some point of time in the past but have repaid such deposits with earnest efforts thereafter. Imposing a lifelong ban for a default anytime in the past would be inappropriate.

§  Company which had defaulted in repayment of deposits can also accept deposit after a period of 5 years from the date of making good the default.

§  Repayment of Deposit:

Where any amount of deposit or part thereof or interest thereof remains unpaid on the commencement of the Companies Act, 2013. Such amount shall be repaid within 3 year from the date of commencement or before the expiry of the period for which the deposit was accepted, whichever is earlier.

 M.     Loan to Director:

Section 185 has been completely re-written under the Companies Amendment Act, 2017. This Section limits the prohibition on loans, advances, guarantee, Security etc., to any person in which any of the directors are interested.

Issue: Term ‘person in whom director is interested’ was that a company could not give a loan even to its subsidiary, associate or joint venture companies.

New  amended Section 185 (1)

No Company shall give loan/ guarantee/ security /investment, directly or indirectly:

·        Any director of Company, or of a Company which is its Holding Company or

·         any partner or relative of any such director; or

·        Any firm in which any such director or relative is partner.

However, following loan can be given by company to any person in whom directors are interested after fulfilling the conditions mentioned below:

·        Advance any loan, including loan represented by a book debt

·        Give any guarantee

·        Provide any security in connection with any loan taken

Conditions:

a)   Special Resolution passed by the Company in General Meeting

b)  The loans are utilized by the borrowing company for its principal business activities.

Sub-section 3: Nothing contained in sub-section (1) and (2) shall apply to-

Clause (a): Loan to Managing Director  & Whole Time Director:

There are two ways to give Loan to Managing and Whole Time Director. The exception is extended to a particular class of directors, i.e. to the managing or whole-time directors only.

i.        Loan can be given to a Managing or Whole-Time Director as a part of the condition of their service.

Condition:  Conditions should be available for all the employees of the Company.

ii.        Loan can be given to a Managing or Whole-Time Director pursuant to any Scheme.

Condition:  Scheme should be approved by Shareholders by passing of Special Resolution.

Example: The Companies pass a resolution for appointment of Managing Director and it approves the terms and conditions of its appointment and if as a part of its terms, there is a loan which can be given to that director, then it falls under the exception given in section 185 of the Act.

Clause (b): Loan in Ordinary Course of Business:

A company which in the Ordinary Course of its business provides:

-         Loans or

-         Gives guarantees or

-         Securities for the due repayment of any loan and

-         In respect of such loans an interest is charged at a rate not less than the rate of prevailing yield of one year, three year, five year or ten year government security closest to the tenor of the loan; or.

Clause (c): Loan by holding Company to its wholly own subsidiary Company:

Any loan made by a Holding Company to its Wholly own Subsidiary Company or any guarantee given or security provided by a Holding Company in respect of any loan made to its wholly own subsidiary Company.

Clause (d): Guarantee and Security by holding Company to its subsidiary Company:

Any guarantee given or security provided by a Holding Company in respect of Loan made by any Bank or financial institution to its subsidiary Company. 

Condition: loan made under this clause utilized by the subsidiary company for its principal business activity only. 

Section 186:

For the purpose of this section excludes employees so that loan given to them part of condition of service are not covered under this section.

Wholly own Subsidiary:

No need to pass Special Resolution in case of Loan/ Guarantee/ Security provides by a Company to its Wholly Own Subsidiary Company.

N.     Change in Filing Fees:

A.  Additional Late Filing Fees: in sub-section (1), for the first and second provisos, the following provisos shall be substituted:

Effect of new proviso:

·        If Company fails to file Annual Return u/s 92 and Financial statement u/s 137 within time prescribed under their specific sections “without prejudice to any other legal action or liability under this act,” it may be submitted by payment of additional fees “which shall not be less than INR 100/- (Rupees Hundred) per day” and different amount may be prescribed for different classes of Companies.

·        If company fails to file any other documents, facts, information etc other than section 92 and 137 “without prejudice to any other legal action or liability under this act,” it may be submitted by payment of additional fees as may be prescribed.

HIGHER ADDITIONAL FEES: New concept of higher additional fees has been introduced. As per this proviso

   -          Where there is default on Two or More occasions in submitting, filling,          registering, recorded of documents,

   -          without prejudice to any other legal action or liability under this act,

    -          may be file with “Higher Addition Fees”

    -          as may be prescribed and

-          which shall not be lesser than “twice the additional fee provided under first and second proviso”

Due to above mention proviso if company fails to file any form with in time prescribed under its specific section and company made the default TWO or “MORE OCCASION” then additional fees for filing of from shall be “TWICE of ADDITIONAL FEES

O.        Remuneration to Managerial Personnel: (Section 197)

Provisions under CA, 2013:: Section 197(1) of the 2013 Act prescribes that total managerial remuneration payable by a public company should not exceed 11% of the net profits of that company. However, such limits may be exceeded with the approval of the shareholders and the Central Government.

Currently, the laws in countries such as the US, the UK and Switzerland do not require a company to approach government authorities for approving remuneration payable to their managerial personnel, even in a scenario where the company has losses or inadequate profits.

Companies Amendment Act, 2017 The word “with the approval of Central Government” removed from every place under this section.

§  No need approval of CG for payment of remuneration more than 11% of net profit,

§  No need of CG approval of recovery of any sum refundable from director.

Condition: Subject to condition that where the company has defaulted in payment of dues to any bank or public financial institution the prior approval  shall be obtained by the company before obtaining the approval in the general meeting

Inadequate Profit: No need of CG approval for remuneration in situation of no profit or inadequate profit. In such case remuneration shall be paid according to Schedule V.

P.    OTHERS

A. Conversion of Partnership firm or LLP into Company: (Section 366)

Now it is allow converting the partnership firm, LLP etc with 2 or more partners into private company.

B.  “Section 446A – Factor for determining level of punishment”

According the this Section the Court or Special Court while deciding the amount of fine or imprisonment under this Act, shall have due regard to the following factors, namely

(a) Size of the company;

(b) Nature of business carried on by the company;

(c) Injury to public interest;

(d) Nature of the default; and

(e) Repetition of the default

Note: After the amendments court shall consider the factors for penalize the Company. It is a good move to consider the different-2 factors for penalty in case of non –compliance.

C.  “Section 446B – Lesser penalties for One Person Companies or Small Companies”

In this section relief to OPC and Small Companies i.e. in case of failure to comply with provisions of

§  Section 117(2)(c) – Resolution and Agreement to be filed

§  Section 137(3) – Copy of Financial statement to be filed

§  Section 92(5) – Annual Return

In case of default, such company and officer in default of such company shall be punishable with fine or imprisonment or fine and imprisonment, as the case may be, which shall not be more than one-half of the fine or imprisonment or fine and imprisonment, as the case may be, of the minimum or maximum fine or imprisonment or fine and imprisonment, as the case may be, specified in such sections.

D. Postal Ballot:

Companies which are mandatorily required to provide electronic voting facility, to transact item in general meeting, can transact business of postal ballot also through electronic voting.

Notification 43 Sections of Companies Amendment Act, 2017

MCA has notified below mentioned 43 sections of Companies Amendment Act, 2017 w.e.f. 9^th February, 2018.

Section No.		Name of Section
Section 2	Section 2	Definitions (except definition of Associate & Subsidiary)
Section 3	New Section 3A	Member severally liable in certain cases
Section 7	Section 21	Authentication of Documents, Proceeding & Contracts
Section 9	Section 35	Civil Liability for mis-statement in prospectus
Section 11	Section 47	Voting Right
Section 12	Section 53	Prohibition on issue of shares at discount
Section 14	Section 62	Further issue of share capital
Section 17	Section 76A	Penalty on Deposit
Section 27	Section 100	Calling of extra ordinary general meeting
Section 29	Section 110	Postal Ballot
Section 32	Section 123	Declaration of Dividend
Section 34	Section 130	Re opening of accounts of courts or tribunals order
Section 35	Section 132	Constitution of National financial reporting authority
Section 38	Section 136	Right of members to copies of audited financial statement
Section 41	Section 140	Removal, resignation of auditor
Section 42	Section 141	Eligibility, qualifications and disqualification of auditors
Section 43	Section 143	Power and duties of auditors and auditing standards
Section 44	Section 147	Punishment for contravention
Section 45	Section 148	Central govt. to specify audit of items of cost in respect of certain companies
Section 47	Section 152	Appointment of Directors
Section 48	Section 153	Application of allotment of DIN
Section 50	Section 160	Right of persons other than retiring directors to stand for directorship
Section 51	Section 161	appointment of additional director, alternate director and nominee director
Section 53	Section 165	Number of directorship
Section 59	Section 180	Restrictions of power of board
Section 60	Section 184	Disclosure of interest by Director
Section 63	Section 188	Related party transaction
Section 65	Section 195	Prohibition on insider trading of securities
Section 72	Section 223	Inspector's Report
Section 73	Section 236	Purchase of minority shareholding
Section 74	Section 247	valuation by registered valuer
Section 77	Section 379	Application of act to foreign companies
Section 78	Section 384	Debentures, annual return, registered of charge, books of account
Section 79	Section 391	Application of section 34 to 36 and chapter XX
Section 82	Section 409	Qualification of president and member of tribunal
Section 84	Section 411	Qualification of chair person and member of appellate tribunal
Section 85	Section 412	Selection of members of Tribunal and appellate tribunal
Section 90	Section 441	Compounding of certain offences
Section 91	Section 446	Insertion of new section 446A and 446B
Section 92	Section 447	Punishment for fraud
Section 93	Section 458	Delegation by central government of its powers and functions