Cos amendment bill 2016 Mr Lalit jain pgc events

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Practicing Company Secretary, Gurgaon
lalitjain2607@gmail.com
20 August 2016
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Definition of Interested Director (S. 2(49))
Annual ratification of appointment of auditors (proviso to S. 139 (1)
Return of changes in promoters’ / top ten shareholders’ stake (S.93)
Restriction on layers of subsidiaries (S. 186 (1))
Prohibition on forward dealings in securities (s.194)
Prohibition on insider trading of securities (S. 195)
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PROPOSED DELETIONS

The Objects clause may provide that the company can engage in any business
or that it will confine to specified objects. (S. 4 (1) (c)
For name change or new name approval, ROC shall reserve the name for 20
days from the date of approval (currently 60 days from application) (S. 4(5))
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MEMORANDUM OF ASSOCIATION-
PROPOSED CHANGES

Particulars of indebtedness not to be given. (S. 92 (1) (c)
Instead of Names, addresses and other details of FIIs
shareholding, now details as prescribed would have to be
given (S. 92(1) (j))
The Government may prescribe abridged form of annual
return for One Person Company and small company. (S. 92
(1) 2nd proviso)
Extract of Annual Return not to be included in Directors
Report. However, a copy of the annual return shall be
placed on the website of the company, if any, and the web-
link of such annual return shall be disclosed in the Board's
report (S.92(3))
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ANNUAL RETURN-PROPOSED CHANGES

AGM 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
(S. 96(2) new proviso)
EGM of a company, other than WOS of a company incorporated
outside India, shall be held at a place within India (S.100 new proviso)
General meeting at a shorter notice possible if consent, in writing or by
electronic mode, is accorded thereto—
(i) in the case of AGM, by not less than 95% of the members entitled to
vote
(ii) in the case of any other general meeting, by members of the
company—
(a) holding, if the company has a share capital, not less than 95% of
such part of the paid-up share capital of the company as gives a right to
vote or
(b) Where the company has no share capital, not less than 95% of total
voting power (S. 101) (1) proviso
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AGM AND EGM - PROPOSED CHANGES

In Section 135(1), ‘any financial year’ to be replaced by ‘the
immediately preceding financial year.’
Where independent directors are not required to be
appointed under S.149(4), CSR committee may have 2 or
more directors (Proviso to S.135(1))
Now the term ‘net profit’ is to be calculated as per S.198
instead of ‘average net profits’ in Explanation to S.135(5)
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CSR

A person cannot be appointed alternate director in a company
if he is holding directorship in the same company (S.
161(2)
Requirement of deposit of money while proposing
candidature for directorship not to apply in case of
-independent director
-director recommended by NRC (S 160 (1) new proviso)
Where a person is appointed as a director of a company
which is in default of clause (a) or clause (b), he shall not
incur the disqualification for 6 months from his
appointment. (S 164(2) proviso)
Disqualifications in clauses (d), (e) and (g) of sub-section
(1) shall continue to apply even if the appeal or petition
has been filed against the order of conviction or
disqualification. (S.164(3) proviso)7
DIRECTORS - PROPOSED CHANGES-1

For reckoning the limit of directorships of 20 companies, the directorship in a
dormant company shall not be included (new Explanation II to S. 165)
Where a director resigns, he may (earlier “shall”) forward a copy of resignation to
ROC. (S 168(1) proviso)
Where a director incurs disqualification under S. 164 (2) the office of the director
shall become vacant in all the companies, other than the company which is in
default under that sub-section (S 167(1) (a) new proviso)
The office of director shall not be vacated in case of orders referred to in clauses
(e) and (f)—
(i) for thirty days from the date of conviction or order of disqualification;
(ii) where an appeal or petition is preferred within thirty days as aforesaid against
the conviction resulting in sentence or order, until expiry of seven days from the
date on which such appeal or petition is disposed of; or
(iii) where any further appeal or petition is preferred against order or sentence
within seven days, until such further appeal or petition is disposed of. (new
proviso to S 167 (1))
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DIRECTORS - PROPOSED CHANGES- 2

Where physical meeting mode is prescribed by government
for certain items, and in a meeting, physical quorum is
present, any other directors may participate through video
conference as well. (S. 173(2))
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BOARD MEETING THROUGH VIDEO
CONFERENCE

Reference to CG approval for payment of managerial remuneration
exceeding 11% of net profits, removed in proviso to S 197(1)
All pending applications with CG to abate. Company shall, within one
year of such commencement, obtain the necessary approvals.
S.197 (17)
For exceeding individual ceiling of 5%/10% to MDs/WTDs and
exceeding other directors’ overall combined ceiling of 1% or 3%, Special
Resolution required (earlier ordinary) as per S 197(1) 2nd proviso
In case of defaults, NOC from bankers/lenders/creditors required before
excess remuneration is waived.
Waiver would be considered by members through a Special Resolution
(S.197(10))
In case of no profits or inadequate profits, where remuneration is to be
increased, CG approval not required. S. 197 (11)
Auditors Report to state whether remuneration paid to directors is as
per Section 197 and give prescribed details. S. 197(16))
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MANAGERIAL REMUNERATION

Loans cannot be given to:
(a) any director of company, or of a company which is its holding
company or any partner or relative of any such director; or
(b) any firm in which any such director or relative is a partner.(S. 185 (1))
Loans can be given to any person in whom any of the director of the
company is interested i.e. :
(a) any private company of which any such director is a director or
member;
(b) any body corporate at a general meeting of which not less than
twenty-five per cent. of the total voting power may be exercised or
controlled by any such director, or by two or more such directors,
together; or
(c) any body corporate, the Board of directors, managing director or
manager, whereof is accustomed to act in accordance with the directions
or instructions of the Board, or of any director or directors, of the lending
company, if :
-special resolution is passed by the company in general meeting
-full disclosures are given in explanatory statement
-the loans are utilised by the borrowing company for its principal
business activities. (S. 185 (2))
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LOANS TO DIRECTORS ETC.

Audit Committee mandatory for every listed public
company (instead of every listed company) S. 177(1)
In case of transaction, other than transactions referred
to in section 188, and where Audit Committee does not
approve the transaction, it shall make
recommendations to the Board. S. 177(4)(iv) new
provisos
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AUDIT COMMITTEE
Changes proposed

NRC mandatory for every listed public company (instead
of every listed company) S. 178(1)
NRC need not carry out performance evaluation, but will
specify the manner and agency for evaluation. It shall review
the implementation and compliance. S.178(2)
Remuneration policy shall be placed on the website of the
company, if any, and the salient features of the policy and
changes therein, if any, along with the web address of the
policy, if any, shall be disclosed in the Board's report.
Present requirement is that such policy shall be disclosed in
the Board's report. S. 178 (4) (c) proviso
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NOMINATION & REMUNERATION COMMITTEE
Changes proposed

Deposit Repayment Reserve Account – presently 15% of
deposits maturing during a financial year and the financial
year next following, to be kept in bank. (S. 73 (2)(c))
Proposed - depositing, on or before the 30th day of April
each year, not less than 20% of deposits maturing
during the following financial year to be kept in bank
Deposit Insurance to be provided as prescribed. (S. 73
(2)(d))
Proposed to be deleted
A default in repayment of deposits would be ignored if it has
been made good five years back (S. 73 (2)(e))
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ACCEPTANCE OF DEPOSITS - PROPOSED CHANGES

Return of allotment to be filed in 15 days (presently 30 days)
Money received not to be used till Return of allotment filed
Offer should not include right to renounce
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PRIVATE PLACEMENT (SECTION 42)
Changes proposed in revamped section

General Meeting special resolution under Section 180 (c) would now be
required if borrowings would exceed the aggregate of paid up capital,
free reserves and securities premium.
Presently, only paid up capital & free reserves are reckoned.
Liability of members where number reduced below 7 or 2 (S. 3 A)
The exemption under section 184(5)(b) would now cover transactions
with bodies corporate.
Presently, only companies are covered
In Section 186 (2), proposed Explanation states that ‘person’ does not
include any individual in employment of the company
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MISC CHANGES PROPOSED - 1

Under Section 441, now offences punishable with ‘fine or imprisonment’
also could be compounded. Non-compoundable offence now is “an
offence punishable with imprisonment only, or punishable with
imprisonment and also with fine”
Financial statements may be sent less than 21 days before the date
of meeting if it is so agreed by 95% of the members entitled to vote at
the meeting (New proviso to S. 136(1))
Threshold limit for fraud fixed at Rs 10 lacs or 1% of turnover, whichever
is lower. Lower fine and imprisonment for amounts below this. (S. 447)
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Correction in language of Section 141(3) (i)
Restriction in 2nd proviso to Section 188(1) shall not apply to a
company in which 90% or more members, in number, are relatives of
promoters or are related parties. S. 188(1)
Related Party to include any body corporate which is—
…….
(C) an investing company or the venturer of a company. (S. 2(76)(viii))
Net worth definition changed to include debit or credit
balance of profit and loss account. S.2(57))
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Definition of ‘Small Company’ (S. 2(85)) proposed to be amended:
-Paid up Capital presently: maximum of Rs. 50 lakhs or higher
prescribed amount upto Rs. 5 crores.
now Rs. 5 crores proposed to be raised to Rs. 10 crores.
-Turnover presently: maximum of Rs. 2 crores or higher prescribed
amount upto Rs. 20 crores
now Rs. 20 crores proposed to be revised to Rs. 100 crores.
For sweat equity shares issue, condition of section 54 (1) (c) regarding
the completion of at least one year, deleted
CEO to sign Financial Statement even when not a director
(S. 134) (1)
Subsidiary definition: Criterion of exercise or control of ‘more than
half of total share capital’ changed to ‘more than half of ‘total
voting power’ S.2(87)
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Cos amendment bill 2016 Mr Lalit jain pgc events

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