AMENDMENT IN RULES BY: CA VINOD JAIN FCA, FCS, FCWA, LL.B, DISA

AMENDMENT IN RULES BY: CA VINOD JAIN FCA, FCS, FCWA, LL.B, DISA Phone: 91 98 11 040 004 E-mail id: [email protected] [email protected]

AMENDMENTS IN RULES 1 Accounts of Companies 2 Corporate Social Responsibility 3 Cost Records and Audit 4 Appointment and remuneration of managerial personnel

Accounts of Companies

Books of Accounts (Section 128) Prepare and keep at registered office: Books of accounts, Other relevant books and papers and Financial statement For every financial year To be kept on accrual basis and according to the Double Entry system of accounting Which give a true and fair view of the state of affairs of the company including its branch office(s).

Books of Accounts (Section 128)Contd. Permits the maintenance of books of A/c’s & other books & papers in electronic mode Shall remain accessible in India Retained completely in the format in which they were originally generated, sent or received Back up of books in server located in India To intimate to ROC along with FS Name of the service provider; IP address of service provider; Location of the service provider (wherever applicable); Where the books maintained on cloud, such address as provided by the service provider.

Financial Statement Financial Year of a company (Section 129)/ body : corporate means the period ending on 31st March every year. Company incorporated on or after the 1st January, the period ending on the 31st March of the following year, will be its first financial year. Financial Statement includes: Balance sheet Notes on B/S, Profit & Loss statement, Cash Flow(Except One Person Company, Small Company*, Dormant Company) *Small company- Rs.50 Lakh to Rs.500 Lakhs paid up capital or turnover Rs.2 Crores to Rs.20 Crores

Financial Statement Contd. BOD shall lay before AGM Shall give true and fair view as per form in Schedule III Shall comply with the Accounting Standards. In case of failure : Financial Statement to disclose deviation from Accounting Standards Reason for deviation Financial effect arising out of deviation Contd.

Contd. Schedule III Provision not applicable on Banking Company Insurance Company Company engaged in generation or supply of electricity Non- compliance of above provision : Managing Director/ Whole Time Director Chief Financial Officer Any other person charged by Board All directors in the absence of above mentioned officer Punishable with : Imprisonment :up to 1 year or Fine : Not less than Rs. 50000 But may extend to Rs. 500000 or both

FS AND DR lying in AGM FS & CF to be approved before signed by BOD by: Chairperson or two directors out of which 1MD CEO if he is director CFO CS Every FS to be issued, circulated, published with: Notes Auditors report Board Report Non- compliance – Co- 25K to 2500K; OID – Imp. upto 3 yrs or fine – 50K to 500k or both

Consolidated Financial (Section 129(3)) Statement Company having one or more subsidiaries prepare Consolidated Financial Statement in addition to Financial Statement . Subsidiary includes ‘ associates’ and ‘joint venture’. Has to laid in AGM Statement to be filed in AOC-1 (Rule 5) Comply with the Accounting Standards and manner and format as specified under Schedule III (Rule 6)* Preparation and adoption of financial statements of a holding company shall apply mutatis mutandis to CFS (Section 129(4))

Companies (Accounts) Amendment Rules, 2016. (Dated - 27th July,2016) RULE-6 Second Proviso has been Replaced The Rule shall not apply if all the following conditions are fulfilled (i) it is a wholly-owned subsidiary,- 100% held by a company or partially-owned subsidiary of a company –more than 50% and All its other members having been intimated in writing, do not object to the company not presenting consolidated financial statements;- consent not needed only proof of intimation sent ii) it is unlisted Company and are not in the process of listing on any stock exchange, whether in India or outside India; and (iii) its ultimate or any intermediate holding company files consolidated financial statements with the Registrar in compliance with the applicable Accounting Standards.

Companies (Accounts) Amendment Rules, 2016. (Dated - 27th July,2016) Rule 8: The Board’s Report Shall be prepared based on the stand alone financial statements of the company and Shall report on the highlights of performance of subsidiaries, associates and Joint Venture companies and their contribution to the overall performance of the company during the period under report. Rule 13: Internal auditor may be either an individual or a partnership firm or a body corporate.

Internal Audit ( Appointment Section 138) mandatory of (Rule 13) internal auditor which may be either an individual or a partnership firm or a body corporate. CA or CMA or other prescribed professionals –may not hold Certificate of Practice for listed companies, public company Rs.50Cr Capital, Rs.200 Cr. Turnover, 100 Cr. Bank/FI Borrowing, Rs.25 Cr deposit. Private Company 200 Cr. Turnover, , 100 Cr. Bank/FI Borrowing, Existing Companies to appoint within 6 months Opportunity

REOPENING OF ACCOUNTS (SECTION 130) * Reopening of accounts are allowed in following cases: Earlier accounts were prepared fraudulently or Mismanagement of accounts casting doubt on the reliability Prior approval of Tribunal required and No objections or on the basis of report from the Central Government, Income Tax Authorities, SEBI or any other regulator/authority- NCLT may order * Enforced with effect from 01-06-2016

VOLUNTARY REVISION OF ACCOUNTS Section 131 Voluntarily revision For the three preceding financial years Financial statements (Section 129) and Board report (Section 134) are not prepared as per legal provision Prior approval of Tribunal required Detail reason for revision shall be disclosed in Board report The above law do not stop companies in preparing accounts or financial statements and get them audited as per international GAAP or for Taxation or for different special purposes as disclosed. * Enforced with effect from 01-06-2016

Voluntary Revision Of Accounts – Procedure for Applying for Tribunal If the financial statement of the company or report of the Board do not comply with the provisions of section 129 or section 134 , The Board can file application an with the Tribunal in Form No. NCT. 1 within 14 days of the decision of the board. In case the Majority of the directors of company or the auditors of the company Has been changed immediately before the decision is taken to apply under section 131, the company shall disclose such facts in the application.

Voluntary Revision Of Accounts – Procedure for Applying for Tribunal The application shall, inter alia, set forth the following particulars: Financial year or period to which such accounts relates to The name and contact details of the MD, CFO ,directors, Company Secretary and officer of the company responsible for making and maintaining such books of accounts and financial statement; The name and contact details of the auditor or any former auditor who audited such accounts Copy of the Board resolution passed by the Board of Directors

Voluntary Revision Of Accounts – Procedure for Applying for Tribunal Ground for seeking revision of financial statement or Board’s Report. Advertisement in Form NCLT -3A at least 14 days before the date of hearing. The Tribunal shall issue notice and hear the auditor of the original financial statement. If present auditor is different and after considering the application and hearing the new auditor and any other person as the Tribunal may deem fit, may pass appropriate order in the matter. Filing of certified copy of the order of the Tribunal with the Registrar of Companies in Form INC – 28 within thirty days of the date of receipt of the certified copy.

Voluntary Revision Of Accounts – Procedure for Applying for Tribunal On receipt of approval from the Tribunal A general meeting to be called and Notice of such general meeting along with reasons for change in financial statements may be published in newspaper in English and in vernacular language. In the meeting the revised financials, statement of directors and the statement of auditors is to be put up for consideration before a decision is taken on adoption of revised accounts. On approval by Members the revised financials statements along with the statement of auditors or revised report of the Board shall be filed with registrar within 30 days of date of approval by the general Meeting.

*National Financial Reporting Authority (NFRA) (Section 132) National Advisory Committee on Accounting Standards has been replaced with NFRA. To recommend auditing and accounting standards applicable to companies to the Central government. Control of Audit quality also delegated to NFRA – in addition to QRB and FRRB Monitor and enforce the compliance with accounting standards and standards on auditing. NFRA has also been empowered to prosecute Auditors in notified cases.

Central Government to prescribe Accounting Standards (Section 133) The Central Government may prescribe the standards of Accounting or addendum As recommended by The Institute of Chartered Accountants of India and In consultation with and recommendations received from NFRA. Provided that until NFRA is constituted the Central Government may prescribe the Accounting Standards or addendum as recommended by a committee formed by MCA headed by JS and representative of ICAI & National Advisory committee on Accounting Standard.- Companies (Removal of Difficulties) Second Order, 2016

Financial Statements Circulation of Financial Statement /Consolidated Financial ( Circulation Section 136) Statement – For all listed co. & public co. which have net worth 1Cr & turnover 10 Cr: by electronic mode who holds shares in De-mat form by electronic mode who consented in writing by despatch of physical copies by any other recognised mode of delivery in all other cases Penalty for Non-compliance : Company - Rs 25000; Officer In Default - Rs 5000

Filing of Financial Statement (Section 137) To be filed with ROC in Form AOC -4 (Rule 12) Within 30 days of AGM – TO BE CERTIFIED BY CA ONLY In case of failure i.e. After 300 days punishable with fine For Company – 1000 per day maximum upto 10 L; and Managing Director Chief Financial Officer Any other director charged with such responsibility All directors in the absence of above persons punishable with: Imprisonment - up to 6months or Fine – Minimum 1L : Maximum up to 5L or Both

Companies (Accounts) Second Amendment Rules, 2015. (4th September, 2015) The financial statements shall be in the form specified in Schedule III to the Act and comply with Accounting Standards or Indian Accounting Standards as applicable: Provided that the items contained in the financial statements shall be prepared in accordance with the definitions and other requirements specified in the Accounting Standards or the Indian Accounting Standards, as the case may be. What is the change? Every company shall file the financial statements with Registrar together with Form AOC-4 and the consolidated financial statement, if any, with Form AOC-4 CFS.

Companies (Accounts) Second Amendment Rules, 2015. (4th September, 2015) The financial statements shall be in the form specified in Schedule III to the Act and comply with Accounting Standards or Indian Accounting Standards as applicable. Provided that the items contained in the financial statements shall be prepared in accordance with the definitions and other requirements specified in the Accounting Standards or the Indian Accounting Standards, as the case may be. *Schedule III Replaced recently

Changes in AOC 4- Notification dated 27.07.2016 Comprehensive Changes have been made in AOC 4 : Further Disclosures have been required as below Disclosure relating to maintenance of books of account is mandatory Whether company is maintaining Books of Account and other relevant books & papers in electronic form o Yes o No (b) Complete Postal Address of the place of maintenance of computer servers( Storing Accounting Data) (c) Particulars of the Service Provider(if any)

Changes in AOC 4- Notification dated 27.07.2016 Reporting of Corporate Social Responsibility (CSR) (i) Whether CSR is applicable as per section 135 o Yes o No (ii)'turnover (in Rs.) (iii) Net worth (in Rs.) Net profits for last three financial years Explanation for not spending Whether a responsibility statement of the CSR Committee on the implementation and monitoring of CSR Policy is enclosed to the Board’s Report o Yes o No

Changes in AOC 4- Notification dated 27.07.2016 Auditors' comment Companies(Auditors‘ Particulars Fixed assets Inventories Loans given by the company Acceptance of Public Deposits Maintenance of Cost records Statutory dues Term loans Fraud noticed Others on the items specified under Report) Order (CARO) Auditors' comments on the report

Changes in AOC 4- Notification dated 27.07.2016 Disclosure relating to Unhedged Foreign Exchange Exposure is mandatory Financial Parameters- Balance Sheet items(Amount in Rupees) as on financial year end date 47. Unhedged Foreign Exchange Exposure The AOC 4 format is comprehensively upgraded and now very detailed CHANGES IN AOC 1 Mandatory to specify the date since subsidiary /associate Joint venture was associated or acquired The AOC 1 format is comprehensively upgraded

‘Earth provides enough to satisfy every man's need, but not every man's greed.’ – Mahatma Gandhi

Corporate Social Responsibility :Section 135. Every company having Net worth - Rs. 500 crore or more, or Turnover - Rs. 1000 crore or more or Net profit - Rs. 5 crore or more During any FY shall constitute a CSR Committee having 3* or more directors( 1 should be independent director, if applicable). 2% of average net profits of the preceding 3 financial Years to be spent on CSR activities. Disclosure of policy to shareholders Give reasons on failure of implementation , if any in the Board Report.

CSR Committee The CSR Committee shall Formulate and recommend to the Board, Corporate Social Responsibility Policy. The Policy shall indicate the activities to be undertaken by the company as specified in Schedule VII Recommend the amount of expenditure to be incurred on the activities Monitor the Corporate Social Responsibility Policy of the company from time to time * In case of Private Company having only 2 Directors. The requirement of Independent Director or 3 Directors in the Committee is not required.

CSR Activities Only such CSR activities will be taken into consideration as are under taken with in India. Companies may build CSR capacities of their own personnel as well as those of their Implementing agencies through Institutions with established track records of at least three financial years expenditure on administrative overheads shall not exceed five percent of total CSR expenditure of the company in one financial year. Should not benefit only employees & their family Contribution to Political Party not considered.

Companies (Corporate Social Responsibility Policy) Amendment Activities can be undertaken by the Company either singly or along Rules, 2016 . with any other company: By itself or Through Company established under section 8* of the Act or a registered trust* or a registered society* Established by the company or The Central Government or State Government or any entity established under an Act of Parliament or a State legislature , *The other Entity should have established track records in similar programs or projects for 3 years and should have specified project. the modalities of utilisation of funds of such projects and the monitoring and reporting mechanism*if not promoted by the company

REPORTING OF CSR The Board of Directors after taking into account the recommendation of CSR Committee shall : Approve the CSR Policy for the Company Disclose content of such policy in its report Be displayed on the website of the company

Corporate Social Responsibility The Company to give preference to local area and areas around where it operates, for spending the amount earmarked for CSR activities The Company shall publish the details of their CSR initiatives undertaken in the Directors’ Report and in the company’s website. CSR policy to specify that surplus arising out of CSR projects shall not form part of business profit of a company. Net profit shall not include such sums as are prescribed and calculated as per s. 198. Not required to maintain CSR committee if conditions not satisfied for 3 consecutive years CSR Expense would include payments for corpus of NGO

Corporate Social Responsibility : Eradicating hunger, Schedule - VII. poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swatch Bharat Kosh set-up by the Central Government for the promotion of sanitation and making available safe drinking water; Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly, & differently abled & livelihood enhancements projects; Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups;

Corporate Social Responsibility : Schedule - VII sustainability, ecological balance, Ensuring environmental protection of flora and fauna, animal welfare, agro forestry, conservation of natural resources and maintaining quality of soil, air and water including contribution to the Clean Ganga Fund setup by the Central Government for rejuvenation of river Ganga; Protection of national heritage, art and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional arts and handicrafts; Measures for the benefit of armed forces veterans, war widows and their dependents;

Corporate Social Responsibility : Schedule - VII Training to promote rural sports, nationally recognized sports, para Olympic sports and Olympic sports. Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the Central Government for socioeconomic development and relief and welfare of the Scheduled Castes, the Scheduled Tribes , other backward classes, minorities and women; Contributions or funds provided to technology incubators located within academic institutions which are approved by the Central Government; Rural development projects. Slum area development.

Corporate Social Responsibility :Section -135. Clarification dated 16th May, 2016: While Undertaking CSR activities Companies should not contravene any other prevailing laws of the land including Cigarettes and other Tobacco Products Act( COTPA),2003

COST RECORDS AND AUDIT

Audit of items of Cost : Section 148. The Central Government may direct Companies engaged in the production of such goods or Providing such services maintain particulars relating to the cost records in the books of account kept by such companies. Cost records shall comprise particulars relating to utilization of material or labour or other items of cost and maintained in form CRA-1. Central Government shall before issuing such direction consult the regulatory body.

Applicability of Cost Record: Section -148. Mandatory Cost Records The Class of companies Including Foreign Companies engaged in production of specified goods and having an overall turnover of Rs. 35 cr. or more during preceding Financial year shall be required to include cost records in their books of account. Classes of Companies as specified are Regulated Sectors Non-regulated sectors

Regulated Sectors –Comprehensively revised now Telecommunication regulated by the Telecom Regulatory Authority of India under the Telecom Regulatory Generation, transmission, distribution and supply of electricity regulated by the relevant regulatory body or authority under the Electricity Act, 2003 (36 of 2003) Petroleum products under the Petroleum and Natural Gas Regulatory Board Act, 2006 Drugs and pharmaceuticals Fertilizers Sugar and industrial alcohol

Non-regulated Sectors- List newly notified 33 items are provided under Non –Regulated Sector including: Machinery and mechanical appliances used in defence, space and atomic energy sectors. Turbo jets and turbo propellers; Arms, ammunitions and Explosives; Propellant powders; prepared explosives. Radar apparatus, radio navigational aid apparatus and radio remote control apparatus. Tanks and other armoured fighting vehicles Port services of stevedoring, pilotage, hauling, mooring, re-mooring, hooking, measuring, loading and unloading services rendered by a Port. Aeronautical services of air traffic management etc. many more

Applicability of Cost Audit : Section -148. For Regulated Sector 50 Crores or More and 25 Crore or More (Individual Product maintaining Cost Records) For Non regulated Sector 100 Crores or More and 50 Crore or More (Individual Product maintaining Cost Records) Non-Applicability of cost audit: Companies with foreign revenue exceeding 75% of total revenue. Company operating from SEZ

Cost Auditor The Cost Auditor shall be a Qualified Cost Accountant in practice Appointed by the Board. Who shall comply with the cost auditing standards. The Remuneration of Cost Accountant shall be Approved by the Board On the recommendation of Audit Committee(if any) and Approved by the shareholders. Cost audit shall be in addition to statutory audit.

Companies (cost records and audit) Amendment Rules, 2016 The Company shall within 180 days of the commencement of every financial year appoint a cost auditor obtaining consent of auditor for conducting Cost Audit. Cost Auditor shall issue the certificate stating that Cost audit is applicable on the company and Auditor satisfies criteria for Qualification of auditor(Section-141) Intimation of appointment of cost auditor by the company to Registrar shall be made within 30 days of appointment by filing form CRA-2. No person appointed under section 139 as an auditor of the company shall be appointed for conducting the cost audit.- stututory auditor can not take up

Companies (cost records and audit) Amendment Rules, 2016 Every cost auditor shall submit the cost audit report along with his or its reservations or qualifications or observations or suggestions, if any, in form CRA-3 to the Board. Company shall within a period of 30 days from the date of receipt of a copy of the cost audit report, furnish the report along with full information and explanation on every reservation or qualification contained therein, in form CRA-4 in Extensible Business Reporting Language(XBRL) format.

APPOINTMENT AND REMUNERATION OF MANAGERIAL PERSONNEL

Appointment of MD/WTD/Manager : Section 196 Prohibits appointment of manager and managing director both at the same time. The Maximum tenure of MD, WTD or manager shall be for a term not exceeding 5 years. No Re-appointment shall be made earlier than one year before the expiry of his term. No Appointment or Reappointment shall be made unless the person who Is of Age below 21 or above 70 * Is Undischarged Insolvent At any time Suspended payment to his creditors or makes composition with them Convicted by Court for a term of 6 Months or more. *Above 70 Special Resolution is required.

Appointment of MD/WTD/Manager : Section 196 A managing director, WTD or manager shall be appointed By the Board of Directors and Subject to the Approval by Shareholders and Central Government (if Schedule V is not followed) The Terms and conditions of such appointment and remuneration shall be in accordance with the provisions contained in schedule-5 and section 197. The Notice for Shareholders approval shall contain Terms and Conditions of such appointment Remunerations payable Other matters including Interest.

Appointment of MD/WTD/Manager : Section 196 E-Form MR 1 shall be filed with the Registrar within 60 days of Appointment. If Appointment is Not Approved (ratified) by Shareholders All Acts done before the General Meeting shall be valid.

Overall Maximum Remuneration Section 197* CATEGORIES OF PERSONNEL MAXIMUM Remuneration Total managerial remuneration (MD WTD Manager) 11% of the net profit** of the company in that financial year. (maximum ceiling limit) (SR & Central Government Approval required to cross the 11% Limit) Director in whole-time employment 5% of net profit if there is 1 MD or WTD or if more than 1 such directors 10 % of net profit to all such directors.*** Non Whole time directors/part time director etc. 1% of net profit if there is a MD/WTD or Manager or 3% of net profit if no such designation.*** *Section 197 – Applicable only to Public Companies ** Net Profit to be Computed as per Section 198 (Remuneration to Directors not be deducted for calculation). *** Shareholders Approval to pay beyond the Limit.

Inadequate Profits – Schedule V EFFECTIVE CAPITAL LIMIT SHALL NOT EXCEED Negative or Less than 5 Crores 30 Lakhs 5 Crores or more but Less than 100 Crores 42 Lakhs 100 Crores or more but less than 250 Crores 60 Lakhs 250 Crores and above 60 Lakhs 0.01% of the Effective Capital in excess of 250 Crores Special Resolution to double the above mentioned Limit. For period Less than 1 year the Limits shall be on Pro-rata basis.

Inadequate Profits – Schedule V If a Managerial Person was Not a security holder holding Nominal value of Rs.5 Lakhs or more or Employee or a Director of the company or Not related to any Director At any time during preceding two years to his appointment Remuneration - 2.5% of the current relevant profit

Remuneration for Attending Meetings Sitting Fees for Board Meeting Committee Meeting To be Decided by the Board. Remuneration shall not exceed the sum of rupees 1 lakh per meeting. The Sitting Fees shall be the same for Women Director & Independent Director

Provisions For Independent Directors Sitting fees as approved by the Board for Board Meetings and committee meetings Not to receive stock options. Reimbursement of expenses for participation in Board Meeting are allowed. Profit based commission, subject to shareholders approval in GM.

Other Provisions A director or manager may be paid remuneration either by way of monthly payment or At a specified percentage of the net profits of the company or partly by one way and partly by the other. Every Listed Company shall disclose in Board Report The Ratio of Remuneration of each Director to the Median of Employees Remuneration. Increase in remuneration of each director, Chief Financial Officer, Chief Executive Officer, Company Secretary or Manager. the percentage increase in the median remuneration of employees in the financial year. the number of permanent employees on the rolls of company relationship between average increase in remuneration and company performance

Other Provisions Comparison of the remuneration of the Key Managerial Personnel against the performance of the company listed Company- variations in the market capitalisation of the company, price earnings ratio as at the closing date of the current financial year and previous financial year and changes therein in comparison to the rate at which the company came out with the last public offer. In case of unlisted companies - the variations in the net worth of the company as at the close of the current financial year and previous financial year. Average percentile increase already made in the salaries of employees other than the managerial personnel

Other Provisions Comparison of the each remuneration of the Key Managerial Personnel against the performance of the company the key parameters for any variable component of remuneration availed by the directors the ratio of the remuneration of the highest paid director to that of the employees who are not directors but receive remuneration in excess of the highest paid director during the year; and Affirmation that the remuneration is as per the remuneration policy of the company.

Recovery of Managerial Remuneration in certain cases Where a company (Section 199) is required to re-state its financial statements Due to fraud or Non-compliance with any requirement under this Act and the rules made there under The company shall recover from Any past or present MD or WTD or manager or CEO Who was employed during the Restatement period & who received the remuneration (including stock option) in excess Of the remuneration in terms of the Re-stated profit Amount.

Compensation for Loss of Office of Managing or Whole time Director or make Manager A Company may payment to- aSection 202 Managing or whole-time director or manager But not to any other director By way of compensation for loss of office, or As consideration for retirement from office or In connection with such loss or retirement Cases where No payment shall be made where: Directors resigns from his office as a result of the reconstruction/amalgamation of the company and gets appointed in the reconstructed company/of resulting company from the amalgamation. Director resigns from his office otherwise than on the reconstruction/ amalgamation of the company

Compensation for Loss of Office of Managing or Whole time Director Manager where theor office of the director- isSection vacated due202 to disqualification. where the company is being wound up due to the negligence or default of the director. where the director has been guilty of fraud or breach of trust or gross negligence or mismanagement of the conduct of the affairs of the company or any subsidiary company or holding company. where the director has instigated, or has taken part directly or indirectly in bringing about, the termination of his office * Section 202 not prohibit the payment to a MD or WTD or manager of any remuneration for services rendered by him in any other capacity.

THANK YOU! VINOD JAINCA CS CMA LL.B. DISA Vinod Kumar & Associates Chartered Accountants Chairman, INMACS Management Services Limited 32, Global Business Square, Sector 44, Gurgaon, Haryana 909, Chiranjiv Tower, 43, Nehru Place, New Delhi - 110019 Phone: 91 98 11 040004 [email protected], [email protected] Website: www.vinodjainca.com www.inmacsindia.com