As part of efforts to address difficulties faced by stakeholders and facilitate the ease of doing business in the country, The Companies (Amendment) Bill, 2016 to further amend the Companies Act, 2013 has been introduced in Lok Sabha on 16th March, 2016 by Hon’ble Minister of Finance, Corporate Affairs and Information and Broadcasting – Shri Arun Jaitley.
The Companies (Amendment) Bill, 2016 has been framed on the basis of recommendations of Companies Law Committee (CLC), the report of which was submitted on February 01, 2016.
II. Statement of Objects and Reasons:
- addressing difficulties in implementation owing to stringent compliance requirements;
- facilitating ease of doing business in order to promote growth with employment;
- harmonisation with accounting standards, the Securities and Exchange Board of India Act, 1992 and the regulations made thereunder, and the Reserve Bank of India Act, 1934 and the regulations made thereunder;
- rectifying omissions and inconsistencies in the Act, and
- carrying out amendments in the provisions relating to qualifications and selection of members of the National Company Law Tribunal and the National Company Law Appellate Tribunal in accordance with the directions of the Supreme Court.
III. Key Highlights:
- Name reservation/approval- Section 4(5)
The period of name reservation is proposed to be reduced to 20 days from sixty days. Accordingly, upon receipt of an application, the Registrar may reserve the name only for a period of 20 days from the date of approval or such other period as may be prescribed.
- Objects Clause (c) of Sub-Section (1) of Section 4
It is proposed that instead of specific objects in the Memorandum of Association of the Company, the Memorandum may state that the company may engage in any lawful act or activity or business, or any act or activity or business to pursue any specific object or objects, as per the law for the time being in force. Provided that in case a company proposes to pursue any specific objects or restrict its objects, the Memorandum shall state the said object or objects for which the company is incorporated and any matter considered necessary in furtherance thereof and in such case the company shall not pursue any act or activity or business, other than specific objects stated in the Memorandum.
- Registered office of the company- Section 12(1)
The period of fifteen days is increased to thirty days. Therefore, the time limit for a newly incorporated company to have its Registered office ready is proposed to be increased from fifteen days to thirty days.
- Effect of number of members falling below the minimum requirement (New Insertion of Section 3(A))
If at any time the number of members of a company is reduced, in the case of a public company, below seven, in the case of a private company, below two, and the company carries on business for more than six months while the number of members is so reduced, every person who is a member of the company during the time that it so carries on business after those six months and is cognisant of the fact that it is carrying on business with less than seven members or two members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.
- Deposit Insurance – Section 73 (2)(d)
The requirement for deposit insurance is omitted.
- Re-opening of accounts of companies- Section 130 (sub- section (3) has been inserted after sub-section (2) of the section 130.)
Accordingly, a period of eight years is proposed for reopening of accounts of a company. With this proposed amendment, Companies would be relieved from the burden of maintaining their accounts forever or beyond a reasonable time limit.
- Signing of financial statements- Section 134(1)
The amendment proposes that the Chief Executive Officer shall sign the financial statements irrespective of whether he is a director or not because Chief Executive Officer is a Key Managerial Personnel and responsible for the overall management of the company.
- Performance evaluation of Directors- Sections 134 & 178
The proposed amendment removes the criteria for Every listed company to have Nomination & Remuneration Committee (NRC), the requirement is proposed to be tweaked to be followed by only PUBLIC listed companies. The amendment also proposes that the NRC or an external independent agency can also conduct the evaluation of Board’s performance.
- Corporate Social Responsibility –Section 135
- Definition of ‘any financial year’
It is proposed that the words “any financial year” be replaced by the words ‘preceding financial year’.
- CSR Committee constitution
A new proviso is inserted in Section 135 (1) as below-
“Provided that where a company is not required to appoint an independent director under sub-section (4) of section 149, it shall have in its Corporate Social Responsibility Committee two or more directors.”
- CSR Activities
It is proposed that instead of providing that CSR policy has to indicate the activities to be undertaken by the company as specified in Schedule VII, it should indicate the activities to be undertaken in areas or subjects specified in Schedule VII.
- Net Profit
Central Government has been empowered to prescribe sums which shall not be included for calculating net profit of a company under Section 135.
- Definition of ‘any financial year’
- Ratification of Auditors – Section 139(1)
The requirement related to annual ratification of auditors by members is proposed to be omitted.
- Appointment of Independent Directors – Section 149(6)(c)
The Amendment bill proposes to specify limits in relation to pecuniary relationship of a director with respect to eligibility of a director to be appointed as an independent director.
- Calling of meeting at shorter notice – Section (101)
Copies of audited financial statements and other documents can be sent at shorter notice if ninety-five percent of members entitled to vote at the meeting agree for the same.
- Annual Return / Disclosures under Board’s Report
The Bill seeks to amend section 92 of the Act to omit the requirement of sub-section (3) with respect to extract of annual return forming as part of Board’s report and provide disclosure of web address/web-link of the annual return in Board’s report. It also seeks to omit requirement of clause (c) of sub-section (1) regarding disclosure of indebtedness, and modify clause (j) of that sub-section regarding disclosure of names, addresses, countries of incorporation, registration and percentage of shareholding of Foreign Institutional Investors. This will reduce the burden of companies in preparing bulky Board’s Report and reduce the paper work.
Further it also seeks to insert a new proviso in sub-section (1) to provide that Central Government may provide abridged form of Annual Return for one person companies and small companies. It is also proposed that web address link of annual return should be disclosed in Boards Report’s
- Participation through video-conferencing
It is proposed to allow participation of directors on certain items which are presently restricted at Board meetings through video conferencing or other audio visual means if there is quorum through physical presence of directors.
- Disclosures in the prospectus
The Bill seeks to amend sub-section (1) of section 26 of the Act to provide that contents of the prospectus with respect to information and reports on financial information shall be specified by SEBI in consultation with Central Government. The clause also provides for applicability of existing requirements on such matters specified by SEBI.
- Managerial Remuneration —Section 197(11)
Approval of the Central Government for Managerial remuneration will not be required instead of it is to be replaced by approval through special resolution by shareholders only. It also seeks to provide that prior approval of bank or public financial institution or non-convertible debenture holder or secured creditor shall be obtained where any term loan is subsisting, before approval of shareholders.
It also requires auditor of the company in his report under section 143 to make a statement as to whether the remuneration paid by the company is accordance with the provisions of section 197.
- Private Placement — Section 42
The Private Placement process is proposed to be simplified by doing away with separate offer letter and reducing number of filings to Registrar etc.
- Restrictions on layers of subsidiaries and investment companies- Section 186
- It is proposed to omit the restriction on layers of investment companies.
- It also provides to exclude employees from the word “person” used in sub-section (2).
- It also seeks to provide for aggregation of loan and investments so far made and guarantees so far provided, for the purpose of calculating the limits of loans and investments
- It is proposed that shareholder’s approval will be required where a loan or guarantee is given or where a security has been provided by a company to its wholly owned subsidiary company or a joint venture company, or acquisition is made by a holding company, by way of subscription, purchase or otherwise of, the securities of its wholly owned subsidiary company.
- it also seeks to clarify when the company will be deemed to be principally engaged in the business of acquisition of shares, debentures or other securities.
- Rationalising Penal provisions
- The Bill seeks to amend section 76A, 132, 140, 147 and 180 etc. to reduce the quantum of fine.
- It is proposed to relax the minimum penalty by linking this with the amount of deposits accepted, accordingly, the minimum fine proposed as Rupees One Crore, or twice the deposit accepted, whichever is lower. Maximum penalty remains unchanged.
- Constitution of NCLT
The Bill also proposes to align with Supreme Court directions with respect to constitution of Selection Committee in respect of NCLT.
The Bill also proposes for modifying the definitions of associate company, cost accountant, debentures, financial year, holding company, key managerial personnel, net worth, related party, small company, subsidiary company and turnover, and to omit the definition of interested director.
- The wholly owned subsidiary of company incorporated outside India is allowed to hold its extra ordinary general meeting outside India.
- It is proposed that the items required to be passed mandatorily by postal ballot may be transacted at a general meeting where the facility of electronic voting is provided by the company.
- With a view to facilitate ease of doing business and for reducing the burden of One Person Company and Small Company, it is proposed to empower the Central Government to prescribe an abridged Board’s Report instead of complete report.
- The Central Government is also proposed to be empowered to recognise any other universally accepted identification number as an identification document similar to director identification number.
- To address the difficulties being faced in genuine transactions due to the complete embargo on providing loans to subsidiaries with common directors, the companies are permitted to give loans to entities in which directors are interested after passing special resolution and adhering to disclosure requirements. This would give big relief to the companies.
- The Bill also proposes to provide abridged form of Annual Return for one person companies and small companies.
- The requirement of deposit of rupees one lakh with respect to nomination of directors u/s 160 shall not be applicable in case of appointment of independent directors or directors nominated by nomination and remuneration committee.