Wednesday, October 12, 2016

Whether if no intimation is given by a director of a company to attend the Board Meeting at the through e-mode at the beginning of the calendar year, does it prevent him to attend a subsequent meeting through Video conferencing –No says NCLT

Whether if no intimation is given by a director of a company to attend the Board Meeting at the through e-mode at the beginning of the calendar year, does it prevent him to attend a subsequent meeting through Video conferencing –No says NCLT

Rupak Gupta v.  U P Hotels Ltd.  [2016] 134 CLA 240 (NCLT)

Facts of the case

Applicant and his mother were Directors of the Respondent Company. On 28th May, 2016, applicant received a notice for a Board Meeting of the Company to be held on 4thJune, 2016 having agenda item of selection of a Company Secretary and to deal with other matters with permission of the Chair. As the selection of Company Secretary is a major item for the Company, applicant and his mother were desirous of attending the Board Meeting. However, they had scheduled for foreign visit for the period ranging from 1stJune, 2016 to 14th June, 2016 and because of this reason applicant and his mother requested for rescheduling of the Meeting either on or before 1st June, 2016 or after 14thJune, 2016. In return, Respondent Director assured for rescheduling and fixed the date on 1st June, 2016.


But on 30th day of May, 2016, another notice for the Board meeting was sent to the applicant about rescheduling the Board Meeting from 1st June, 2016 to 4th June, 2016. The reason communicated to the Applicant was that the candidates who had applied for the post of Company Secretary would not be able to come for an interview on 1st June, 2016 and thus meeting to be held on 4th June, 2016.

Owing to the importance concerning the position of Company Secretary in the Company, the Applicant requested for facility to participate in the Board meeting through video conferencing and the Respondent assured that the same would be provided. The Applicant and his mother, trusted the Respondent Director’s assurance, and left for their scheduled trip.


The Respondent Director, on 3rd June, 2016, sent the Applicant an email informing him that he and his mother would not be permitted to participate in the meeting through video conferencing in order to comply with Rule 3(3)(e) of Companies (Meetings of Board and its Powers) Rules, 2014.

Even though Applicant sent his staff to arrange for video conferencing through Skype, the Respondent Director disconnected the Skype facility to prevent the Applicant and his mother from participating in the Board Meeting.


In the same Board Meeting they appointed an Independent Director (Additional Director) of the Company. Further on 22nd June, 2016 another Board Meeting was held and the minutes of the Board Meeting held on 4thJune, 2016 were considered to give effect to the resolution passed in the Meeting held on 4th June, 2016.

In defence, Respondent Director cited Rule 3(3)(e) of the Companies (Meetings of Board and its Powers) Rules, 2014. For ease of reference the said Rule 3(3)(e) is reproduced below:


"…Rule 3(3)(e) - The director, who desires, to participate may intimate his intention of participation through the electronic mode at the beginning of the calendar year and such declaration shall be valid for one calendar year."

The Respondents contended that there being no prior intimation from the Applicant at the beginning of the calendar year for participation in the Board Meetings through video-conferencing, the Applicant and his mother were barred by the fetters of Rule 3(3)(e) of the Companies (Meetings of Board and its Powers) Rules, 2014, and, thus, could not be permitted to participate in the Company's Board Meeting via video-conferencing.
NCLT on the Issue:
The NCLT held that:

Sub Rule 3(e) states that intimation given at the beginning of a calendar year will remain valid for the entire year. It is not said anywhere that if an intimation to participate in a meeting through video conferencing or any audio visual mode is not given at the beginning of the year, the directors are not entitled to participate in the said meeting through video conferencing. Holding a Board meeting and passing Board resolution by preventing the Applicant and his mother from participating in the said meeting was unfair.

The NCLT, therefore passed interim orders staying the operation of the resolutions passed in the Board Meeting held on 4th June, 2016 and to withhold the passing of resolutions in respect of other important items that were part of the Board Meeting held on 22nd June, 2016.

Conclusion:

From the present case, we can conclude that:

Director intending to participate through video conferencing or audio visual means shall communicate his intention to the Chairperson or the Company Secretary of the company. It is important to note that sub Rule 3(e) of Rule 3 of Companies (Meetings of Board and its Powers) Rules, 2014 provides an option to the Director to submit a declaration stating their desire to attend the Board Meeting through e-mode at the beginning of the calendar year and such declaration shall be valid for one year. If a director fails to give such a declaration, he cannot be prevented from participating in the Board meetings through video conferencing and audio visual means.


From the above decision of NCLT, it is spreading a clear and strong message that oppressive act perpetrated by the Directors of the Company will not be tolerated. As NCLT is clothed with far reaching powers, it is protecting stakeholders’ interest and making responsible persons more accountable.

Sunday, October 2, 2016

REQUESTING THE GOVERNMENT OF INDIA TO RECOGNISE THE COMPANY SECRETARIES FOR GOODS AND SERVICE TAX CERTIFICATION / ROLE (GST).

REQUESTING THE GOVERNMENT OF INDIA TO RECOGNISE THE COMPANY SECRETARIES FOR GOODS AND SERVICE TAX CERTIFICATION / ROLE (GST).

Section 203 of Companies Act 2013 read with Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014, necessitated that every listed company and every other public company having paid-up share capital of Rs 10 crores or more to appoint the Company Secretary in whole-time employment. All Private companies and such public companies having Paid-up share capital more than Rs 10 crores were required to appoint a Company Secretary.



There are about 40,000 ICSI members as on date (both in practice and in employment).  Listed Companies and Public and Private companies having share capital of more than Rs 10 Crores have been pursuing elusive practices by not appointing company secretaries even though company secretaries are available in excess of demand in the market. Registrar of Companies and SEBI are not taking adequate steps to compel those companies which are required to appoint company secretaries mandatorily to appoint company secretaries and hence, due to this lacunae, young company secretaries who have obtained their membership recently find it difficult to get employment opportunities.

After the implementation of GST, there will be dearth of professionals for advising the assessees and to carry out the auditing and reporting to GST authorities. If company secretaries are allowed to do various activities as in the case Chartered Accountants under GST, they will be filling in the gap of demand side of the professionals for the GST activities.

Presently Company Secretaries are doing the following services:
General Services
Financial Market Services
An in-house legal expert; a compliance officer of the Company.
Public Issue, listing and Securities Management
An expert in corporate laws, securities laws & capital market and corporate governance
Takeover Code, Insider trading, Mergers & Amalgamation

Chief advisor to the board of directors on best practices in corporate  governance
Securities Compliance and Certification Services

Responsible for all regulatory compliances of company
Finance & Accounting Services

Corporate s and strategic manager
Taxation Services & International Trade & WTO Services

The intention of the Indian Government for the recognition and the promotion of the three professional Institutes in India is to courage and develop the required professionals in the respective field so that Indian corporate world and ordinary citizens are benefitted due to their assistances in complying the provisions of the corporate and commercial laws in India.

Hence, by recognising the ICSI members in the GST at par with the Chartered Accountants will help to address the likely shortage of professionals when GST is implemented throughout India with effect from 1st April 2017.

It is submitted that Company Secretaries are playing a critical role in corporate management as well as in practice. Various state governments have acknowledged the significant role being played by the Practising Company Secretaries and authorised them to do VAT Audit and to appear before the appellate authority as the Authorised representative. Securities Exchange Board of India (SEBI) has acknowledged company secretaries as auditor/Internal auditor and the Companies Act, 2013 also recognises the Company Secretaries for carrying out the Secretarial Audit of prescribed class of companies.

The Institute of Company Secretaries of India through its letter dated December 3, 2015 has emphasised the need to recognise the company secretaries for carrying out various activities under GST (Goods and Services Tax Law. ICSI has brought to the notice to the Government of India Reports recognizes/authorises, Chartered Accountants for the following certifications/role:

A. Issue of Certificate certifying the fact of non-passing of the GST burden (Report for GST on refund process).

B. Act as Authorised Representative in the matter of registration under Goods and Service Tax Act (Report on GST Registration).

C. Act as Authorised Representative acting as an agent for the taxpayer (Report on GST Payment Process).

Company Secretaries are well equipped and competent to carry out these certifications and should also be authorised to certify and act as authorised representatives, at par with other professionals.

In view of the vast experience gained by ICSI members in tax laws both Direct and Indirect taxes and to provide wider and cost effective scope for selection of professionals, it is submitted that Company Secretaries be also authorised to act as authorised representative in following areas under GST.


I request the Prime Minister of India Mr Modiji and Mr. Arun Jaitley , Finance Minister of India by giving necessary instruction to concerned department to recognise the role of ICSI members for the certification , auditing and acting as certified representatives of assessees under GST. This will go long way for the development of company secretarial professionals in India and to attract more talented people to the profession in the future. 

Saturday, October 1, 2016

Details Required for Incorporation of a Joint Venture Company in India

Details Required for Incorporation of a Joint 

Venture Company in India



a)     Board Resolution by all corporate entities, statutory bodies, organization being promoters of the proposed company,

b)     the said resolution empowering to :  allow use of the ‘brand /trade name’ of the corporate promoter, by the proposed company i.e. giving its No-Objection ;

c)      subscribe to the equity share capital of the Company stating the extent and manner of shareholding &

d)     Make the necessary application with the Registrar of Companies (hereinafter referred to as “ROC”). Information Required :


Proposed signatories to Memorandum Details

a) Name, Occupation & Complete Address of one of the Co-Promoters, who shall sign the said Form 1A;

 b) Name of at least two promoters;

 c) State wherein Company’s registered office is proposed;

d) Category of Proposed Company – Public or Private;

e) Proposed ‘Names’ of the Company & a brief significance of the said Names.

 f) Main Objects of the Proposed Company (in brief).



First Directors Details

 (At least 2 directors for a Private Company and 3 directors for a Public Company):

  Name of Director  Father’s Name  Nationality  Occupation

  Date of Birth  Voter’s I.D. No. / Passport No. / Driving License No.

 E-Mail I.D. (Optional)  Permanent Residential Address (With Name of State, Country & PIN Code)

 Permanent Residential Address (With Name of State, Country & PIN Code)

  Present Residential Address (With Name of State, Country & PIN Code)  Corporate Identity Number (CIN) of any Indian Company wherein he is a director or promoter.

Documents required for obtaining DIN

To obtain Director Identification Number (DIN) for all proposed directors,

a) Copy of Identity Proof (Passport, Driving License, PAN Card etc.)

b) Copy of Address Proof (Passport, Driving License, Electricity Bill, Ration Card, Telephone Bill, bank Statement etc.

     c) Two Passport size photographs d) Copy of Valid Passport (mandatory in     
      Case of Foreign Nationals / NRI’s);

In case of foreign nationals / NRI’s, the said documents shall have to be notarized /apostilled by the Notary of the Home Country of the proposed director.

The attesting authority must indicate the following while attesting the documents – Name in full, Signatures, Seal/Stamp & Registration No.

Submit a Translated Copy (duly attested) in case the original document is in a language other than English or Hindi.

  In case Identity Proof does not have date of birth and/or Father’s name, or in case the same does not tally with the DIN Application Form, additional proof (duly attested) shall have to be submitted.

To Obtain Digital Signatures for at least one proposed Director

a) Copy of the Identity Proof (Passport / Driving License etc.)

 b) Copy of Address Proof (Electricity Bill, Ration Card, Telephone Bill etc.)
 c) One Passport size photograph


Memorandum & Articles of Association:

a) A brief details of the main objects of the proposed Company.

b) Copy of JV agreement, if any

c) To get the Memorandum and Articles signed by all the subscribers in their own hands, wherein they write their name, father’s name, occupation, address and the number of shares subscribed for. The same is to be witnessed by at least one person.

d) In case of foreign nationals / NRI’s, the same shall be notarized /apostilled by the Consulate General of the Indian Embassy situated in that Country.

Director Details

a)     Details of Directors in respect of the following: - Designation of Director (Director, Managing Director, Whole-time etc.

b)    Category of Director (Chairman, Executive Director or Non-Executive Director).

c)     Complete address of the registered office of the Company (with Name of District, State, Country, Pin Code), E-Mail I.D. of Company.

d)    Complete address of the Police Station in whose jurisdiction the registered office of the Company is situated (with Name of District, State, Country, Pin Code)

e)     Name, Father’s Name & Present Residential Address of all subscribers.

f)      Documents Required: a) Consent Letter(s) signed by each director in the prescribed format.


g)     In case the foreign national/NRI is not available in India, then the Special Power of Attorney shall have to executed on a plain paper and notarized /apostilled by the Consulate General of the Indian Embassy situated in that Country. The SPOA holder shall further sign the SPOA and appropriate stamp duty will be paid in India.