Whether Company Secretary can be appointed as CS in more than one Compan...

Whether a Company Secretary or a KMP can be
appointed in more than one subsidiaries by a holding company ?

Whether filing of ADT-1 is mandatory
in case of appointment of first auditor?

COMPANY SECRETARY FOR SECTION 8
COMPANY NEED NOT BE A MEMBER OF ICSI

Section 203 of the Companies Act,2013 outlines the
following requirements with respect to appointment of person holding office as
whole time KMP in another company:

·       
A whole time KMP shall not hold office in more than
one company except in its subsidiary company at the same time;

·       
A whole time KMP can be appointed as director
(non-executive) in any other company with the permission of the Board of
directors of the company where he is appointed as whole time KMP; and

·       
A whole time KMP holding office in more than one
company as on the date of commencement of the Act shall within a period of six
months from such commencement, choose one company in which he wishes to continue to hold the office as
KMP.

Company Law Committee Report

As per Para 13.13 of the Company Law Committee
Report dated February 01, 2016 released by the Ministry of Corporate Affairs
for public comments, the Committee has taken the view that a KMP may be appointed in more than one
subsidiary company on the basis that section 13 of the General Clauses Act,
1897 which provides that ‘singular’ shall include the ‘plural’, unless there is
anything repugnant in the subject or the context.

 Section
203(3) of CA 2013 provides that whole-time key managerial personnel shall not
hold office in more than one company except in its subsidiary company at the
same time. The Committee noted that Section 13 of the General Clauses Act, 1897
provides that ‘singular’ shall include the ‘plural’, unless there is anything
repugnant in the subject or the context. Thus, whole-time key managerial personnel may hold office
in more than one subsidiary company as per the present law. Accordingly, the Committee
recommended no change in this regard. 

Hence , there is a no bar for a holding company to
appoint its company secretary as company secretary for its subsidiaries if it
has more than one subsidiary.

Whether filing of
ADT-1 is mandatory in case of appointment of first auditor?

As per Section 139(6) of Companies Act, 2013, first
auditor of the company should be appointed by Board of Directors within 30 days
from date of incorporation.

If board fails to make such appointment then auditor
shall be appointed through Extra Ordinary General Meeting (“EGM”) within 90
days.

As per Companies
Act, 2013, company is not required to file ADT-1 with RoC for appointment of
first auditor through Board of Directors or EGM as provisions of Rule 4(2)
applies for Section 139(1) only. However, it is a good practice to file ADT-1 in this case also. So
filling of ADT 1 for first auditor is not mandatory.

ADT-1 also provides option of filing in case of
appointment of first auditor.

IF NO SRN NUMBER
IS AVAILABLE FOR ADT-1 FOR THE FIRST AUDITOR , HOW TO FILL THE SRN NO IN THE
AOC -4 FOR ADT-1?

The company is filling up its AOC-4 for the 1st time.
ADT-1 wasn't filled, since it is not mandatory to file ADT-1 for first auditors
of the company. Hence, do not have the SRN number for AOC-4. So, what can be
done?

Use Z99999999 as SRN

COMPANY SECRETARY
FOR SECTION 8 COMPANY NEED NOT BE A MEMBER OF ICSI

A company wants to
file Dir 12 for the appointment of section 8 company. Please note that CS for section
8 company need not be an ICSI member. 

As per exemption
notification dated 05th June, 2015, the definition of Company Secretary in
section 2(24) of the Companies Act, 2013 is not applicable on Section
8Companies.

While filling up the
form DIR-12 , it is asking CS registration number . We have raised ticket to
MCA. As usual , they replied to take a professional help. It is not allowing
without filling the CS registration number.

 How to overcome  this Scenario ?

Use Z99999999 as SRN