1(a). Section 123(1) + Rule 3 Declaration of dividend out of reserve in case of inadequate or no profits
1(b)(i). Exemption of rule 6. However only for CFS when all its other members have been intimated in writing and for which the proof of delivery of such intimation is available with the company, and do not object to the company not presenting consolidated financial statement, securities are not listed or not in the process of listing on any stock exchange and its ultimate or any intermediate holding company files CFS with the registrar which are following the applicable AS> Opinion CFS is applicable
1(b)(ii). Term of auditor and rotation for auditor seciton 139(2) and rule 5
class of companies
Every
listed company or unlisted public company having paid up share capital more
than or equal to Rs. 10 crores shall not reappoint individual as auditor for
more than 1 term of 5 consecutive years and firm as auditor for more than 2
terms of 5 consecutive years.
1(c). **Pending**
2(a). Sub-section (2) of Section 164 prescribes disqualifications which get
attached to a person if he is or has been a director of a company which has
committed default as under—
(a)
his company has not filed financial statements or annual returns for any
continuous period of 3 financial years; or
(b)
his company has failed to repay the deposits accepted by it or pay interest
thereon or to redeem any debentures on the due date or pay interest due thereon
or pay any dividend declared and such failure to pay or redeem continues for 1
year or more.
In
both the above cases of default, the director concerned shall not be eligible
to be
- reappointed as a director of such defaulting company or
- appointed in some other company for period of 5 years from the date on
which the said company has committed default.
(i)
Declaration is in order since not disqualified as not
paid interest on loan
(ii)
Can continue
2(b)(i).
The
composition of the committee shall where Financial Creditors exist:
The
Committee of creditors shall comprise of all financial creditors of a corporate
debtor. The Resolution Professional shall identify the financial creditors and
constitutes a creditors committee. The resolution professional shall conduct
all the meetings of the Committee of Creditors.
After
the constitution of committee of creditors, the interim resolution professional
is required to file a report certifying the constitution of the committee to
the Adjudicating Authority. The report shall be filed on or before the expiry
of thirty days from the date of appointment of the interim resolution
professional.
2(b)(ii). However, Financial creditor or the authorised representative of the financial
creditor if it is a related party of the corporate debtor, shall not have any
right of representation, participation or voting in a meeting of the committee
of creditors:
2(c)(i).
Section
11C - Period of custody 6 months, and thereafter shall return same to any
intermideary or any person associated with security market. Failure to produce
the books will lead to imprisonment upto 1 year or fine may extent to 1 crore
or both
2(c)(ii). Section 11D - Cease and desist
If
the Board finds, after causing an inquiry to be made, that any person has
violated, or is likely to violate, any provisions of this Act, or any rules or
regulations made thereunder, it may pass an order requiring such person to
cease and desist from committing or causing such violation:
Provided
that the Board shall not pass such order in respect of any listed public
company or a public company (other than the intermediaries specified under
section 12) which intends to get its securities listed on any recognised stock
exchange unless the Board has reasonable grounds to believe that such company
has indulged in insider trading or market manipulation.”
3(a)(i). Section 180 - Restrictions on powers of Board - BOD shall exercise borrow
money powers only with consent of company by SR - condition that Borrow money,
where money to be borrowed, together with money already borrowed exceed
aggregate of its paidup share capital, free reserves and securities premium,
apart from temporary loans obtained from bankers in ordinary course of
business.
3(a)(ii). Section 182 Prohibitions and Restrictions regarding Political
Contributions - No limit of maximum contribution just approval required is
Board resolution in board meeting.
3(b).
Application for seeking status of an active company: According to the Rule 8 of
the Companies (Miscellaneous) Rules, 2014,
(a)
An application for obtaining the status of an active company shall be made in
Form MSC-4 along with fees as provided in the Companies (Registration Offices
and Fees) Rules, 2014 and shall be accompanied by a return in Form MSC-3 in
respect of the financial year in which the application for obtaining the status
of an active company is being filed: However, the Registrar shall initiate the
process of striking off the name of the company if the company remains as a
dormant company for a period of consecutive 5 years.
(b)
The Registrar shall, after considering the application filed for obtaining the
status of an active company, issue a certificate in Form MSC-5 allowing the
status of an active company to the applicant.
(c)
Where a dormant company does or omits to do any act mentioned in the Grounds of
application in Form MSC-1 submitted to Registrar for obtaining the status of
dormant company, affecting its status of dormant company, the directors shall
within 7 days from such event, file an application for obtaining the status of
an active company.
(d)
Where the Registrar has reasonable cause to believe that any company registered
as ‘dormant company’ under his jurisdiction has been functioning in any manner,
directly or indirectly, he may initiate the proceedings for enquiry under
section 206 of the Act and if, after giving a reasonable opportunity of being
heard to the company in this regard, it is found that the company has actually
been functioning, the Registrar may remove the name of such company from
register of dormant companies and treat it as an active company.
3(c)(i).
The
term “scheduled offence" has been defined in clause (y) of sub-section (1)
of section
2.
It means –
(a)
the offences specified under Part A of the Schedule; or
(b)
the offences specified under Part B of the Schedule if the total value involved
in such offences is one crore rupees or more; or
(c)
The offences specified under Part C of the Schedule.
In
given case PART A as customs are coverd under Paragraph 12 of Part A
3(c)(ii).
Right
of appeal against refusal of stock exchange to list securities of public
companies. Where a recognised stock exchange acting in pursuance of any power
given to it by its bye-laws, refuses to list the securities of any public
company or collective investment scheme, the company or scheme shall be
entitled to be furnished with reasons for refusal, and may –
i)
within 15 days from the date on which the reasons for such refusal are
furnished to it, or
ii)
where the stock exchange has omitted or failed to dispose of, within the time
specified in corresponding provisions of Companies Act, the application for
permission for the shares or debentures to be dealt with on the stock exchange,
within 15 days from the date of expiry of the specified time or within such
further period, not exceeding 1 month, as the CG may on sufficient cause being
shown, allow, appeal to Central Government against such refusal, omission or
failure, as the case may be, and thereupon Central Government may, after giving
the stock exchange an opportunity of being heard –
i)
vary or set aside the decision of the stock exchange, or
ii)
where the stock exchange has omitted or failed to dispose of the application
within the specified time, grant or refuse the permission and where the Central
Government sets aside the decision of the recognized stock exchange or grants
the permission, the stock exchange shall act in conformity with the orders of
Central Government.
4(a).
The shareholders’ application will not be accepted as under 210 of the Companies Act, 2013, Central Government may order an investigation into affairs of the company on the intimation of a special resolution passed by a company that the affairs of the company ought to be investigated and then may appoint the inspectors. Here, 450 out of total 2000 shareholders of the company have made an application to the Central Government to appoint an inspector to carry out investigation but it is not sufficient as the company has not passed the special resolution.
4(b)(i).
Where
not less than 50% of the paid-up share capital, whether equity or preference or
partly equity and partly preference, of a foreign company is held by:
(i)
one or more citizens of India; or
(ii)
by one or more companies or bodies corporate incorporated in India; or
(iii)
by one or more citizens of India and one or more companies or bodies corporate
incorporated
in India, whether singly or in the aggregate, such company shall comply with
the provisions of Chapter XXII and such other provisions of this Act as may be
prescribed with regard to the business carried on by it in India as if it were
a company incorporated in India.
4(b)(ii).
OFFER
OF INDIAN DEPOSITORY RECEIPTS [SECTION 390]
For
the purposes of this section, and according to the Companies (Registration of
Foreign
Companies)
Rules, 2014, Indian Depository Receipts (IDR) means any instrument in the form
of a depository receipt created by a Domestic Depository in India and
authorized by a company
incorporated
outside India making an issue of such depository receipts.
According
to section 390, notwithstanding anything contained in any other law for the
time being in force, the Central Government may make rules applicable for—
(i)
the offer of Indian Depository Receipts (IDR);
(ii)
the requirement of disclosures in prospectus or letter of offer issued in
connection with IDR;
(iii)
the manner in which the IDR shall be dealt with in a depository mode and by
custodian and underwriters; and
(iv)
the manner of sale, transfer or transmission of IDR,
by
a company incorporated or to be incorporated outside India, whether the company
has or has not established, or will or will not establish, any place of
business in India.
According
to the Companies (Registration of Foreign Companies) Rules, 2014, no company
incorporated or to be incorporated outside India, whether the company has or
has not established, or may or may not establish, any place of business in
India shall make an issue of Indian Depository Receipts (IDRs) unless it
complies with the conditions mentioned under this rule, in addition to the
Securities and Exchange Board of India (Issue of Capital and Disclosure
Requirements) Regulations, 2009 and any directions issued by the Reserve Bank
of India. The Rules relating to offer, disclosure requirements and manner of
transfer, sale etc., related to IDR are contained in Companies (Registration of
Foreign Companies) Rules, 2014.
4(c)(i).
Provisos The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. Normally, a proviso does not travel beyond the provision to which it is a proviso. It craves out an exception to the main provision to which it has been enacted as a proviso and to no other. When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. A proviso must be construed with reference to the preceding parts of the clause to which it is appended
Use
of Proviso, Exception and Saving Clause - When a statute has been framed in
general terms, the limitations are recorded by the use of a proviso, exception
or a saving clause.
-
A proviso represents a clause added to the statute to except something from the
enacting clause or to limit its applicability.
-
An exception excludes from the operation of the enactment a particular subject
matter.
-
A saving clause exempts something special from the general things, covered by
the enactment.
5.
** Pending**
6(a).
Period
for filing of appeal: Every appeal to AT against order of Tribunal, shall be
filed within a period of 45 days from the date on which a copy of the order of
the Tribunal is made available to the person aggrieved and shall be in such
form, and accompanied by such fees, as may be prescribed: Provided that the
Appellate Tribunal may entertain an appeal after the expiry of the said period
of forty-five days from the date aforesaid, but within a further period not
exceeding 45, if it is satisfied that the appellant was prevented by sufficient
cause from filing the appeal within that period.
6(b). Section 244 - Right to apply under section 241
The
section is linked to section 241 of the Act, and provides for the eligibility
of members who hold the right to file the application under section 241 for
oppression and mismanagement with the Tribunal. These qualification as provided
in section 244 ensure that only the persons with sufficient interest in the
affairs of the company can file the petition under section 241 of the Act.
Members having right to apply: The following members of a company shall have
the right to apply under section 241, namely:—
(a)
in the case of a company having a share capital, not less than
-
100 members of the company or
-
one-tenth of the total number of its members, whichever is less, or
-
any member or members holding not less than one tenth of the issued share
capital of the company, subject to the condition that the applicant or
applicants has or have paid all calls and other sums due on his or their
shares;
-
In case, where the shareholding of the petitioner-member gets reduced to below
10 % because of fresh issue/allotment of shares, which is challenged as
oppressive, the maintainability of the petition would be reduced after
determining the validity of the issue of allotment. The petition shall be
maintainable and the petitioner-member shall be entitled to relief.
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