Posts Tagged ‘Central Government’


Appointment of Cost Auditor by Companies 

General Circular No. 36/2012, 52/5/CAB-2011, dated November 6, 2012

To,

The President,

Institute of Cost and Works Accountants of India,

12, Sudder Street,

Kolkata – 700 016.

In continuation of the General Circular No. 15/2011 dated 11th April 2011, Ministry hereby makes the following changes:

(a) The company shall, within thirty days from the date of approval by MCA of the application made to the Central Government in the prescribed Form 23C seeking its prior approval for the appointment of cost auditor, issue formal letter of appointment to the cost auditor, as approved by the Board.

(b) The cost auditor shall, within thirty days of the date of formal letter of appointment issued by the company, inform the Central Government in the prescribed form 23D, alongwith a copy of such appointment.

(c) In case of change of cost auditor caused by the death of existing cost auditor, companies are allowed to file fresh e-form 23C, without any additional fee, within 90 days of the date of death.

The additional fee payable as per the Companies (Fees on Applications) Rules, 1999 [as amended] shall become applicable after expiry of the said 90 days. Accordingly, e-forms 23C and 23D are being modified to capture such details.

(d) In case of change of cost auditor for reasons other than death of the existing cost auditor, companies are required to file fresh eform 23C with applicable fee & additional fee, clearly specifying the reasons of change. In case of change due to resignation of the existing cost auditor, e-form 23C should be accompanied by the resignation letter of the existing cost auditor. In case of change due to the management policy of periodical rotation, then attach a copy of the Board approved rotational policy with the e-form 23C. In any other case, the change should be duly justified and supported with the relevant documents.

(e) In order to ensure compliance of section 224(1-B) of the Companies Act 1956, required changes are being made in the MCA21 system to restrict the number of cost audit approvals to the limits specified in section 224(1-B) through a counter on the membership number of the sole proprietor or partner of the firm. It will be further ensured that in case of a sole proprietor, he has completed the audit and submitted the cost audit report. In case of a partnership firm, the partner so appointed or any other partner of the same firm is allowed to complete the audit & submit cost audit report subject to his total numbers not exceeding the limit specified in section 224(1-B).

2. MCA is regularly receiving requests from the companies and cost auditors for making corrections in the e-forms 23C & 23D in respect of minor typographical errors or other mistakes such as incorrect financial year, incorrect name of the cost auditor or the cost audit firm, incorrect PAN number, incorrect scope of audit, etc. In MCA21 system, no changes are permitted in the approved e-forms. Therefore, all companies and cost auditors are hereby informed to carefully verify all particulars before uploading e-forms 23C or 23D on the MCA21 portal. In any rare case, if still any error/mistake is observed, it should be brought to the notice of MCA well before its approval enabling it to return the said e-form for re-submission after making the required corrections. Else, the companies and cost auditors shall be required to file fresh e-forms 23C & 23D containing correct particulars, alongwith the applicable fee and additional fee.

3. If a company or the cost auditor contravenes any provisions of this circular, the company and every officer thereof who is found to be in default, and the cost auditor in case he is in default, shall be punishable as per applicable provisions of the Companies Act, 1956.

4. The modifications contained in this circular shall be effective from the financial year commencing on or after the 1st day of January, 2013.

5. The Institute is requested to bring this to the general information of all Members in practice, and of the corporate sector.

Click here to download the complete text of the above Circular in PDF Format- General Circular No. 36/2012 dated 06.11.2012.

Source: Ministry of Corporate Affairs.


Default by the Cost Auditors in filing Form 23D against the corresponding Form 23C 

General Circular No. 35/2012, F. No.52/5/CAB-2011, dated November 5, 2012. 

To,

The President,

Institute of Cost Accountants of India,

12, Sudder Street,

Kolkata – 700 016.

Ministry of Corporate Affairs vide General Circular No. 15/2011, dated April 11, 2011 had prescribed a revised procedure to be followed for appointment of cost auditors. As per the revised procedure, each company is required to e-file its application with the Central Government in the prescribed Form 23C within ninety days from the date of commencement of each financial year, which shall be approved by MCA within 30 days.

2. Upon approval by MCA, the company is required to issue formal letter of appointment to the cost auditor, who shall, within 30 days of receipt of such letter of appointment, inform the Central Government in the prescribed Form 23D alongwith a copy of such appointment.

3. It is, however, observed that since April 1, 2011, though all the appointment applications made by the companies concerned in Form 23C have already been approved by the MCA, a large number of cost auditors have defaulted in filing the required Form 23D within the stipulated time. In many cases, the default period is even more than a year. This has been viewed very seriously by the Ministry.

4. Keeping in view the initial operation of the revised procedure, all the defaulting cost auditors are requested to file their required Form 23D that have already become due till date, by December 16, 2012 positively. In case of any further default, names of such defaulting members shall be sent to the Institute on December 17, 2012 intimating the Institute to initiate Disciplinary Proceedings against them under the relevant provisions of Cost and Works Accountants Act, 1959.

5. In cases where the company concerned, after approval of Form 23C, has failed to issue the formal letter of appointment to the cost auditor, they shall do so within 15 days of the issue of this Circular enabling the cost auditor to file Form 23D within the extended time indicated above. In case of non-compliance, the company and every officer thereof who is found to be in default shall be punishable as per provisions of the Companies Act, 1956.

6. The Institute is requested to circulate this for the information of all concerned.

Click here to download the complete text of the above Circular in PDF Format- General Circular No. 35/2012 dated 05.11.2012.

Source: Ministry of Corporate Affairs.


Gazette Notification GSR 534(E) dated 14/07/2011- Clarification Regarding

Notification, dated 16.08.2012

[F. No. 14/11/2012-CL-VII]

To,

All Regional Directors,

All Registrars of Companies,

The Institute of Company Secretaries of India,

The Institute of Chartered Accountants of India,

The Institute of Cost Accountants of India,

I am directed to refer to the Gazette Notification No. GSR 534(E) dated 15th July, 2011 whereby companies were exempted from obtaining the approval of the Central Government for payment of remuneration exceeding the limits imposed by the Companies Act, 1956 in respect of the managerial persons not having any interest in the capital of the company and not related to the directors or promoters thereof.

In this regard, a number of representations have been received from stakeholders pointing to the corporate practice of allocating shares by way of qualification shares and/or shares under any scheme for allotment of shares to the employees of the company including under Employees’ Stock Option Plan (ESOP).

It is hereby clarified that any employee of a company holding shares of the company up to 0.5% of paid up share capital thereof under any scheme formulated for allotment of shares to such employees including under Employees’ Stock Option Plan or by way of qualification shares are also covered under the category of persons not having any interest in the capital of the company in terms of the Ministry’s notification GSR 534(E) dated 14.07.2011.

Click here to download the complete text of the above Notification in PDF Format- Notification, dated 16.08.2012.

Source: Ministry of Corporate Affairs.

 

 

 


Applicability of Service Tax on Commission payable to Non-Whole Time Directors of a Company under section 309(4) of the Companies Act, 1956- Approval of Central Government under section 309/310 of the Companies Act- Regarding.

General Circular No. 24/2012, F.No. 14/33/2012-CL. VII, dated 09.08.2012

To,

All Regional Directors,

All Registrars of Companies,

The Institute of Company Secretaries of India,

The Institute of Chartered Accountants of India,

The Institute of Cost Accountants of India,

The Finance Act, 2012 has introduced Service Tax which is applicable to anyone who provides a Service not covered under the negative/exempted list and if the value of annual revenue is more than Rs. 10 lakh. The Non-Whole Time Directors of the Company are presently not covered under the exempted list and as such, the sitting fee/commission payable to them by the company is liable to Service Tax.

If such Service Tax is paid by the company, it will be deemed to be a part of remuneration under section 198 of the Act and would accordingly increase the remuneration amount of such Non-Whole Time Directors. This remuneration could then exceed the limit of 1% profit [u/s 309(4)] of the company when the company has a Managing /Whole Time Directors/Managers or 3% of the profit [u/s 309(4)] of the company if the company does not have a Managing/Whole Time Directors/Managers, as the case may be. As per existing provisions of the Companies Act, 1956, this would require prior approval of Central Government u/s 309 and 310 of the Act.

It has now been decided that any increase in remuneration of Non-Whole Time Director(s) of a company solely on account of payment of service tax on commission payable to them by the company shall not require approval of Central Government under sections 309 and 310 of the Companies Act even if it exceeds the limit 1% or 3% of the profit [u/s 309(4)] of the company, as the case may be, in the financial year 2012-13.

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Click here to download the complete text of the above Circular in PDF Format- General Circular No. 24/2012, dated 09.08.2012.

Source: Ministry of Corporate Affairs.

 

 

 


Companies (Central Government’s) General Rules and Forms (Fifth Amendment) Rules, 2012 – (Form 21 & 23)

Notification dated 26 July, 2012

[F No 1/1/2003- CL V]

G.S.R. _____ (E). – In exercise of the powers conferred by sub-section (1) of section 642 read with section 610B of the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the following rules further to amend the Companies (Central Government’s) General Rules and Forms, 1956, namely: –

1. (1) These rules may be called the Companies (Central Government’s) General Rules and Forms (Fifth Amendment) Rules, 2012.

    (2) These rules shall come into force with effect from the 12th August, 2012.

2. In the Companies (Central Government’s) General Rules and Forms, 1956, in Annexure ‘A’,-

(a) under FORM 21,-

(A) with respect to the portion occurring in the square brackets,-

(i) after figure and letter, “17A” the figures “18, 19” shall be inserted;

(ii) after figure “186”, the figure “188” shall be inserted;

(B) in serial number 13, after item (b) and entries relating thereto, the following shall be inserted, namely:-

“(c) SRN of Form 24AAA

(b) under FORM 23, in serial number 10, after item (a) and entries relating thereto, the following shall be inserted, namely:-

“(b) SRN of Form 24AAA

Renuka Kumar,

Joint Secretary

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Click here to download the complete text of the above Notification in PDF Format- G.S.R. (E) dated 26.07.2012.

Source: Ministry of Corporate Affairs.