FICCI Companies Act, 2013 Accounts, Auditors, Dividends and Related Party Transactions

FICCICompanies Act, 2013Accounts, Auditors, Dividends and Related Party Transactions

12 September 2013

©2013 Deloitte Haskins & Sells

Contents

2

• Background

• Accounts of Companies

• Auditors

• Dividend

• Related Party Transactions

• Glossary

Accounts of Companies


Financial YearParticulars Companies Act 1956 Companies Act 2013

Financial Year[Clause 2(41)]

FY means in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it in AGM is made up, whether that period is a year or not

FY of a company / body corporate means the period ending on 31st March every year.

In case a company 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, will be its first financial year

• Extension of FY – no longer permissible • Exception – A company or body

corporate, which is a holding company or a subsidiary of a company incorporated outside India and is required to follow a different FY for consolidation of its accounts outside India, with NCLT approval

Transition period: - 2 years

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Takeaways: • Aligned with “previous year” under Income Tax Act 1961 • Whether an application will be entertained by NCLT for following a different period as FY by company

in India which is an associate company or joint venture company of a foreign entity


Financial Statements

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Particulars Companies Act 1956 Companies Act 2013

Financial statements[Clause 2(40)]

Not defined “financial statement” in relation to a company to include: i. a balance sheet as at the end of the FY;ii. a profit and loss account / an income and

expenditure account for the FY;iii. cash flow statement for the FY;iv. a statement of changes in equity, if

applicable; and v. any explanatory note annexed to, or

forming part of, any document referred to above.

Exceptions: • for OPC, small company and dormant

company cash flow statement excluded

Takeaways: • Legal recognition under Company law for financial statements – aligned with Indian GAAP• Financial statement to give true and fair view of state of affairs of the company and comply with

prescribed accounting standards . • Responsibility of CFO to maintain financial statements • Auditor to give report on the financial statements


Consolidated Financial Statements

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Consolidated Financial statements[Clause 134(1)]

No such concept. • A company required to give

specified information about the financials of a subsidiary - Section 212 report - as part of Director’s report

• Under the Listing Agreement of SEBI, Consolidated Financial Statement (CFS) is mandatory for listed company

• If a company has a subsidiary / associate / joint venture, CFS to be prepared and laid before an AGM in addition to standalone financial statements

Takeaways: • CFS mandatory for all companies


Audited Accounts

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Audited Accounts[Clause 136]

Balance sheet of a holding company to include the following• Balance sheet, P&L, Directors

report, Auditors report, • Statement of holding company’s

interest etc.• Where the financial year of

subsidiary defers from holding company, statement for comparison, details of material changes in respect of fixed assets etc.

• Audited Accounts of all subsidiaries are required to be prepared and provided to shareholders on request

• Audited accounts of the listed companies along with the subsidiaries to be placed on the website

Takeaways: • Accounts of subsidiary to be made available to shareholders on request – step towards striking

balance between transparency and ‘need to know’


Voluntary revision of financial statements

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Voluntary Revision of financialStatement or BOD’s report[Clause 131]

No specific provisions BOD may prepare revised financial statement or a revised board report in respect of any of the 3 preceding FYs after obtaining approval of NCLT, if it believes that the financial statement or the BOD report do not comply with the relevant provisions

Takeaways: • Voluntary restatement of financial statement possible – subject to safeguards


Mandatory revision of financial statements

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Mandatory re-opening or re-casting of book of accounts by Statutory Authorities[Clause 130]

No provision for the re-opening of accounts.

A company can re-open its books of accounts or re-cast its financial statements on the below grounds:• that the relevant earlier accounts were prepared in

a fraudulent manner; or• affairs of the company were mismanaged during

the relevant period casting a doubt on the reliability of the financial statements

on an application made by CG, IT authorities, SEBI or any other statutory regulatory body or authority or any person concerned and on an order being made by a Court or NCLT

Takeaways: • Restatement of financial statement in event of fraud legally possible – subject to safeguards –

Satyam case


Maintenance of books

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Period for maintenance of Books of Accounts[Clause 128(5)]

Companies are required to preserve the Books of Account for a period of 8 years

CG may direct keeping books of accounts of a company to be maintained for a period more than 8 years where any investigation has been ordered.

Takeaways: • Regulatory clarity – books etc. to be preserved for more than 8 years in case of pending

investigations


Accounts signing

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Signing of financial statements [Clause 134(1)]

Balance sheet and statement of profit and loss to be signed by manager or secretary and by 2 Directors including MD where there is one.

• Financial Statements to be signed at least by • Chairperson of the company, if authorized by

BOD; or • 2 directors including MD, where there is one

and • CEO if he is a Director, • CFO and CS, wherever they are appointed

• In case of OPC balance sheet and statement of profit and loss to be signed by 1 director only

Takeaways: • CFO where required to be appointed to sign the financial statements


Circulation of financial statements to members etc.

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What needs to be provided[Clause 136]

Unlisted Company

A copy of the financial statements, CFS 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 atleast 21 days before the meeting to:• Every member of the company; • Every trustee for the debenture-holder of any debentures issued by the company; and • All other persons entitled to receive

Listed Company

In addition to provisions applicable to an unlisted company, a listed company is required to:• Make these documents available for inspection at its registered office during working hours • To send a statement containing salient features of such documents in the prescribed form or

copies of the documents, as the company may deem fit to shareholders unless they ask for full financial statements.

• place its financial statement, CFS if any, and all other documents required to be attached thereto, on its website.

• to provide a copy of separate audited financial statements in respect of each of its subsidiary, to any shareholder of the company who asks for it.

Penalty Any contravention will make the Company liable to penalty of ` 25,000 and every officer who is in default with a penalty of ` 5,000


Filing of financial statements with ROC

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When to file[Clause 137]

• Company to file its financials etc. within 30 days of its adoption at AGM• If the financials etc. are not adopted at the AGM or at adjourned meeting even such

un-adopted financials need to be filed with ROC within 30 days from the date of AGM• ROC shall take such un-adopted financials on record as provisional till the financials

are adopted in adjourned AGM for that purpose and filed within 30 days from the date of adjourned AGM

• Even if AGM of the Company has not been held, the financials etc. has to be filed within 30 days of the last date before which the AGM should have been held

Penalty • If Company do not file the documents within time or extended time limit, the company is liable to pay a fine of ` 1,000 per day during which default continues subject to maximum ` 10 ,00,000; and

• MD and CFO, and in their absence, any other director in charge by the BOD with this responsibility, and in the absence of such director, all directors are punishable with

• imprisonment upto 6 months or • with fine of ` 1,00,000 to ` 5,00,000 or • with both of the above

Auditors


Tenure

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Tenure of Auditor -Unlisted Companies[Clause 139(1)]

To hold office from one AGM to the conclusion of the next AGM

At first AGM• to hold office till conclusion of 6th AGM, subject

to ratification by members at every AGMSubsequent AGM• to hold office till conclusion of 6th meeting,

subject to ratification by members at every AGM

Tenure of Auditor - Listed and specified class of companies[Clause 139(2)]

To hold office from one AGM to the conclusion of the next AGM

• Individual - 1 term of 5 consecutive years• Audit Firm - 2 terms of 5 consecutive years• Cooling off period of 5 years provided before

next appointment

Transition period –3 years

Takeaway • Mandatory rotation of auditors for listed and prescribed classes of companies introduced• As per draft rules - prescribed class of companies means all companies other than OPC and small

companies . This will mean a large number of auditors will have to be replaced by new auditors once the rotation provisions are enacted.


Provisions for appointment / rotation

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Common conditions for appointment of auditor in listed and classes of companies to be prescribed :• Incoming audit firm should not have any common partners who were the partners

of the outgoing audit firm i.e. the audit firm whose tenure expired in the immediately preceding FY by virtue of mandatory rotation requirement

• Rules to be prescribed to state the manner in which the companies shall rotate their auditors

• Audit committee of listed and other prescribed classes of companies to recommend appointment of an auditor


Reporting in case of fraud

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Reporting of fraud by auditor to CG[Clause 143(12)]

No provisions Auditor is required to report directly to CG where he has reason to believe that an offence involving fraud is committed against the company by the officers or employees of the company

Takeaways:• Audit processes to be revamped to be able to detect fraud• Responsibilities of auditors increased


Requirements applicable to all companies

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First auditor• First auditor to be appointed by the BOD within 30 days of incorporation of a company• If the first auditor is not appointed by the BOD as above, the members to appoint the first

auditor within 90 days at the EGM• Tenure of the first auditor shall be upto the conclusion of first AGM

Additional conditions• The company may resolve:

• If audit firm is appointed, the audit partner and his team shall rotate at such intervals as may be resolved by members

• that audit shall be conducted by more than 1 auditor (i.e. joint auditor)• 1956 Act requires all the partners of the audit firm to be a qualified CA and practicing in

India. 2013 Act provides that:• Majority of partners practicing in India should be qualified CA;• If LLP is appointed as auditor, only partners who are CA shall be authorized to sign

• Procedure and manner of selection of auditor to be prescribed by the Rules• Additional grounds for disqualifications for appointment as auditor provided• An auditor or audit firm who or which has been performing any non-audit services on or

before the commencement of 2013 Act shall comply with the above before the closure of the 1st FY after the date of such commencement


Proscribed services

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Don’ts of Auditors[Clause 144]

No provisions Auditor cannot provide following services "directly or indirectly" to the company or its holding company or subsidiary company, namely:—• accounting and book keeping services;• internal audit;• design and implementation of any financial

information system;• actuarial services• investment advisory services;• investment banking services;• rendering of outsourced financial services;• management services; and• services prescribed under the RulesTransition period: To comply with the restriction before the closure of the 1st FY after the date of commencement of 2013 Act

Takeaway • Avenues of providing specified services curtailed


Proscribed services

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Key Points • For proscribed services: "Directly or indirectly" shall include rendering of services by the

auditor –• Where auditor is 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 trade mark or brand is used by such individual

• Where auditor is 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 trade mark or brand is used by the firm or any of its partners.

Takeaway • Above restrictions to be applicable even to network of firm / companies having common brand even

when partners / owners are different


Internal Auditor

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Appointment of Internal Auditors [Clause 138]

No provisions Such class or classes of Companies as may prescribed need to compulsory appoint Internal Auditor to conduct the internal audit of functions and activities of the company.

Qualification of Internal Auditor[Clause 138]

No provisions Internal Auditor shall either be a chartered accountant or a cost accountant, or such other professional as may be decided by the BOD

Takeaway • CARO contained provisions requiring auditor’s comments on existence and efficacy of internal audit

system in case of listed companies and / or companies having networth > ` 50 lakhs or average annual turnover > ` 5 crores for a period of 3 consecutive FY immediately preced ing the FY concerned. 2013 Act contains specific provision of appointment of internal auditor

• As per draft rules – prescribed class of companies – • listed companies ; and• public companies-

• with paid-up capital of Rs. 10 crores or more, • with outstanding loans or borrowings from banks or public financial institutions exceeding Rs.

25 crores or which have accepted deposits of Rs. 25 crores or more at any point of time during the last FY

Dividend and Depreciation


Declaration and Payment of Dividend

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Particulars Companies Act 1956 Companies Act 2013Declaration of dividend and Transfer to reserves

• Dividend can be declared for any FY out of the profits of the company for that FY or previous FY(s) after providing for depreciation. Lower of loss in the previous FY or amount of depreciation to be also adjusted

• Mandatory transfer to the reserves of portion of profits of the company for that FY, not less than 10% of its profits

• Dividend can be declared for any FY out of the profits of the company for that FY or previous FY(s) after providing for depreciation

• A company may voluntarily transfer a portion of its profits to reserves as considered appropriate. Mandatory transfer to reserves is not required.

Declaration of dividend in case of inadequate or absence of profits

In case of inadequacy or absence of profits in any FY, the company can declare dividend out of the reserves only after complying with the Companies (Declaration of Dividend out of Reserves) Rules, 1975, wherein the maximum rate of dividend is prescribed as 10%

In case of inadequacy or absence of profits in any FY, the company can declare dividend out of the accumulated profits earned by it in previous years and transferred to reserves in accordance with the rules to be prescribed.

Dividend can be paid only out of free reserves. Securities premium is not free reserve.



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Particulars Companies Act 1956 Companies Act 2013Depreciation Minimum 95% of original costs to be

written off over useful life of assetMinimum rate as per Schedule XIV

To be provided as per Schedule II to the Act.

Depreciation is the systematic allocation of the depreciable amount of an asset over its useful life. Depreciable amount of an asset is the cost of an asset or other amount substituted for cost less its residual value. The useful life of an asset is the period over which the asset is expected to be available for use by an entity or the number of production or similar units expected to be obtained from the asset by the entity.Rate of depreciation revisedestimated useful life of the assets – if notified for accounting purpose by a regulatory authority constituted under law to be followed

Componentisation of assets mandated.

25 ©2013 Deloitte Haskins & Sells

Depreciation – Schedule II

• The useful life of an asset shall not be longer than the useful life and the residual value shall not be higher than that prescribed in Part C of Schedule II to the 2013 Act‒ In case of prescribed class of companies whose financial statements comply with AS,

where the useful life or residual value of an asset is different from the one mentioned in Part C, it shall disclose the justification for the same

• The above provisions to apply to intangible assets• Where cost of part of the asset is significant to its total cost and useful life of that part is

different from the useful life of the remaining asset, useful life of that significant part to be determined separately

• Asset used for double shift – depreciation to increase by 50% for the period used • Asset used for triple shift – depreciation to increase by 100% for the period used • From the date the Schedule II comes into effect, the carrying amount of the asset as on

that date—‒ shall be depreciated over the remaining useful life of the asset as per the Schedule II‒ after retaining the residual value, shall be recognized in the opening balance of

retained earnings where the remaining useful life of an asset is nil



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Particulars Companies Act 1956 Companies Act 2013Unpaid / unclaimed dividend transferred to IEPF

Only dividend which remains unpaid for 7 years is required to be transferred to IEPF.

Where the unpaid / unclaimed dividend has been transferred to Investor Education and Protection Fund (IEPF), the corresponding shares on which such dividend was unpaid / unclaimed shall also be transferred to IEPF.

IEPF – additional transfers

• Application money received for allotment of securities and due for refund – not paid for 7 years

• Sale proceeds of fractional shares on merger, bonus for more than 7 years

• Redemption amount of preference shares remain unpaid for more than 7 years

• Amounts as prescribed in Rules etc.

Takeaway • The shares in respect of which unpaid / unclaimed dividend is transferred to IEPF also stands

transferred to IEPF. Under the draft Rules, voting rights in respect of such shares shall be frozen.



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Particulars Companies Act 1956

Companies Act 2013

Restrictions on declaration of dividend/ interim dividend

No restrictions are provided for declaring dividend

Interim dividend may be declared out of the surplus in the Profit & Loss Account as well as profits of the FY in which dividend is sought to be declared.

In case company has incurred loss up to the preceding quarter of the current FY then interim dividend shall not be declared at a rate higher than the average dividends declared by the company during the immediately preceding 3 FYs

Failure to comply with provisions relating to acceptance and repayment of deposits will bar the company to declare any dividend during the period of non-compliance


Failure to distribute dividend

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Particulars PenaltyDirectors • Imprisonment of 2 years; and

• fine >/= INR. 1,000 per day of default

Company To pay simple interest @ 18% p.a. during the period of default

Not an offence (defense available)

a) Dividend not paid by reason of the operation of any law;b) Directions of shareholder not complied with and the same has been

communicated to him;c) Dispute regarding the right to receive the dividend;d) Adjustment of dividend by the company against any sum due to it from

the shareholder; ore) Failure to pay the dividend or to post the warrant within the period was

not due to any default on the part of the company.

Related Party Transactions



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Scope of Section[Clause 188(1)]

a. sale, purchase or supply of any goods or materials;

b. sale, purchase or supply of any services;

c. underwriting the subscription of any shares, debentures of a company

a. sale, purchase or supply of any goods or material;

b. buying, selling or disposing of property of any kind;

c. leasing of property of any kind; d. availing or rendering of any services; e. appointment of any agents for purchase

or sale of goods, materials, services or property;

f. related party’s appointment to any office or place of profit in the company, its subsidiary company associate company; or

g. underwriting the subscription of any shares in or derivatives thereof;

Takeaway• List of related party transactions widened• Immovable property also brought under the ambit of related party transactions



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Approval required[Clause 188(1)]

• Prior consent of the BoD by resolution passed at Board meeting

• Prior approval of Regional Director, in case the paid-up capital of company is exceeding ` 1 crore

Where a transaction with a related party is (i) not in the ordinary course of business or (ii) is in the ordinary course of business but not on an arm’s length basis:• Prior consent of the BOD by a resolution at a board

meeting and compliance with the conditions to be prescribed is necessary (limits as per draft rules elaborated in next slide)

• Prior approval of the shareholders where paid-up capital of company or transaction amount exceeds prescribed limit (limits as per draft rules elaborated in next slide)Related party who is a member of such a company cannot vote on such a special resolution

Requirement of obtaining CG approval for related party transactions done away with'Arm’s length transaction' means a transaction between 2 related parties that is conducted as if they were unrelated, so that there is no conflict of interest

Takeaway• Removal of taking CG approval for related party will remove the uncertainty in timeline and execution of

the related party transactions• Related party transactions at arms' length price will call for aligning the benchmarking under transfer

pricing norms as per Income tax Act for both domestic and international transactions



As per the draft rules, a company shall enter into any contract or arrangement with a related party with prior consent of the BOD by a resolution at a board meeting and subject to compliance with the following conditions :• The notice of the Board meeting at which the resolution is proposed to be moved shall

disclose- ‒ name of the related party and nature of relationship; ‒ nature, duration of the contract and particulars of the contract or arrangement;‒ material terms of the contract or arrangement including the value, if any; ‒ any advance paid or received for the contract or arrangement, if any; and ‒ any other information relevant or important for the BOD to take a decision on the

proposed transaction.

• Where any director is interested in any contract or arrangement with a related party, such director shall not be present at the meeting during discussions on the subject matter of the resolution relating to such contract or arrangement



As per the draft rules, prior approval of the shareholders will be required for a company to enter into a contract or arrangement with any related party where:• Paid-up share capital is Rs. 1 crore or more; • The transaction(s) to be entered into :

‒ individually or taken together with previous transactions during a FY, exceeds 5% of annual turnover or 20% of net worth of the company as per the last audited financial statements of the company, whichever is higher, for the following contracts or arrangements:a. sale, purchase or supply of any goods or material;b. buying, selling or disposing of property of any kind;c. leasing of property of any kind; d. availing or rendering of any services; e. appointment of any agents for purchase or sale of goods, materials, services or property; or

‒ relates to appointment to any office or place of profit in the company, its subsidiary company or associate company at a monthly remuneration exceeding Rs. 1 lakh; or

‒ is for a remuneration for underwriting the subscription of any securities or derivatives thereof of the company exceeding Rs. 10 lakhs



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Specified persons with whom contracts are covered[Clause 2(76)]

• Director of the Company• Relative of such director• A firm in which such

director or relative is a partner

• Any other partner of such firm in which director or relative is a partner

• Private Company in which such director is a director or member

“Related Party” :• director or his relative;• KMP or his relative;• firm, in which a director, manager or his relative is a partner;• private company in which a director or manager is a member

or director ;• public company in which a director or manager is a director or

holds along with his relatives, more than 2% of its paid-up share capital;

• any body corporate whose BoD, managing director, or manager is accustomed to act in accordance with the advice, directions or instructions of a director or manager;

• any person under whose advice, directions or instructions a director or manager is accustomed to act;

• any company which is—‒ a holding, subsidiary or an associate company of such

company; or‒ a subsidiary of a holding company to which it is also a

subsidiary• such other persons as may be prescribed

Takeaway• The scope of related party is substantially expanded to ensure interest of shareholders. As per draft rules – “other

prescribed persons “ means a director or KMP of the holding, subsidiary or associate company of such company or his relative or any person appointed in senior management in the company or its holding, subsidiary or associate company.



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Non-cash transaction with directors[Clause 192]

No such restriction Non-cash transaction with a director of the company or its holding, subsidiary or associate company or a person connected for acquisition or sale of assets allowed only with prior approval of the members in a general meeting and supported by values determined by Registered valuers

Exemptions[Proviso to Clause 188(1)]

• Purchase/Sale of goods and materials for cash at prevailing market price.

• Purchase/Sale of goods and materials or services the cost of which does not exceed ` 5,000/- in any year during the period of contract

• Any transaction of banking / insurance company in the ordinary course of such company

Any transaction entered by company in its ordinary course of business which are on arm’s length basis

Takeaway• Justification to be provided in BOD report for related party transaction – more onus on BOD


Glossary

AGM: Annual General Meeting BOD: Board of Directors

CA: Chartered Accountant CARO: Companies (Auditor's Report) Order 2003

CEO: Chief Executive Officer CFO: Chief Finance Officer

CFS: Consolidated Financial Statement CG: Central Government

FY: Financial Year KMP: Key Managerial Personnel

MD: Managing Director NCLT: National Company Law Tribunal

OPC: One Person Company ROC: Registrar of Companies

SEBI: Securities and Exchange Board of India

THANK YOU

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FICCI Companies Act, 2013 Accounts, Auditors, Dividends and Related Party Transactions

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