The
Institute of Company Secretaries of India released its Frequently Asked
Questions (FAQs) on the Companies Act 2013 on 25
th June 2014. The whole
document can be downloaded
here.
Some important extracts of the document are reproduced as under.
Ques:
Whether every company is required to alter its Articles of Association as per
the new format under the Companies Act, 2013?
Ans: It is
not necessary but suggested that whenever a company amends its articles, it
should ensure that subsequent to the amendment, the AOA is as per the format
specified under the Companies Act, 2013.
Since
certain provisions of Companies Act, 2013 require specific clauses in the
Articles to carry out operations of any organization, such as for issuance of
bonus shares, it is advisable Articles should be altered in line with the new
requirements as various provisions themselves require specific clauses to be
incorporated in the Articles.
Ques:
In terms of Section 73 of Companies Act, 2013 read with Rule 2(1)(c)(vii) of
Companies (Terms and conditions of acceptance of Deposit) Rules, 2014, deposits
do not include receipt of money from Director of the Company, but money
received from a member is treated as deposit. In case deposit is taken from a
person who is both a director and a member of the Company, will such receipt of
money be treated as deposit or not?
Ans: Any
amount received from a person who, at the time of the receipt of the amount,
was a director of the company furnishes 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 is not considered as deposit.
Although,
there is no specific provision which clarifies the question above but a deposit
from a member who is also a director should be treated as deposit from a
member.
However, contrary to ICSI’s
opinion as above, in our personal opinion, if a Director is also a member of a
company, any amount received from him should be treated as amount received from
Director and not as a deposit from member as many a time, Directors have to
hold qualification shares in the company, and this will defeat the exclusion
given to money received from Directors to not be treated as Deposits.
Therefore, MCA must clarify this.
Ques:
By what time are companies required to switch over to the new format of Register
of Members, Register of Directors and Key Managerial Personnel and their
Shareholding?
Ans: As
per Rule 3 of the Companies (Management & Administration) Rules, 2014 all
the existing companies, registered under the Companies Act, 1956, shall prepare
its registers of members as per the provisions of section 88 of the Companies
Act, 2013 within a period of 6 months from the date of commencement of
Companies (Management & Administration) Rules, 2014.
Further,
after 1st April 2014 all the registers of Directors & KMP shall be prepared
as per the provisions of the section 170 of the Companies Act, 2013. The
register of directors & director‘s shareholding maintained before 1 April,
2014 as per the provisions of the Companies Act, 1956 need not be converted as
per the provisions of the section 170 of Companies Act, 2013.
Ques:
Please clarify whether vacation of office of director on account of not
attending board meetings under Section 167(1)(b) has prospective or
retrospective effect?
Ans: The
said section is applicable from 1st April 2014, it means that a director absent
himself from the entire board meeting held during a period of twelve months
with or without obtaining leave of absence, his office as director shall
vacate.
Ques:
Are notices of disclosure of interest received from directors in terms of
Section 184 of the Companies Act, 2013 required to be filed with the ROC? If
yes, in what form?
Ans: In
terms of section 117(3)(g) resolutions passed as per section 179(3) the Company
is required to file e-form MGT-14 within 30 days of passing the resolution.
179(3) deals with the powers of the boards which may be exercised at board
meetings only and as per section 179(3)(k) the rules may prescribe additional
matters and rule 8 of Companies (Meeting of Board & its Power) Rules, 2014
requires that the disclosure of directors‘ interest and shareholding should be
taken note of only by means of a resolution passed at board meeting. Therefore
a company is required to file resolution for taking note of disclosure of
director‘s interest and shareholding in Form MGT-14.
Ques:
After filling form for Disclosure of interest of Directors, if any changes have
been made, whether disclosure from Directors is required again?
Ans: As
per section 184, whenever there is any change occurred in the disclosures
already made then at first Board Meeting held after such change, shall be
disclosed.
