The Game Changer! Companies Act, Anand Bathiya B.Com., A.C.A., LL.B., D.I.S.A. CMII - ICAI – 27 th April, 2014

Coverage Key Points for discussion ET: 15 mins Provisions pertaining to Internal Audit ET: 15 mins Provisions pertaining to Related Party Transactions ET: 30 mins Q&A ET: 5 mins

Key Principles of Companies Act Proactive vs. Reactive Shareholder vs. Stakeholder Majority vs. Minority Third Party Regulation Transparency and Good Corporate Governance Hub and Spoke Model

Companies Act, 2013

Internal Audit Position under the Act Section Internal Auditor shall either be: a. a chartered accountant or b. a cost accountant, or c. such other professional as may be decided by the Board Section Statutory Auditor cannot be an Internal auditor of the auditee, its holding company or its subsidiaries.

Internal Audit Position under the Act Section 177: Audit committee shall recommend appointment of Internal Auditor Audit committee may call for comments, reports and discuss issues with Internal Auditor

Internal Audit Position under the Companies (Accounts) Rules, 2014 Rule 13: Existing companies to have a 6-months transition period. Applicability of Internal Audit Following class of companies: a.All Listed Companies b.Unlisted Public Companies – PUC > INR 50crores Turnover > INR 200crores Loans > 100 crores Deposits > 25 crores c.Private Limited Companies – Turnover > INR 200crores Loans > 100 crores

Internal Audit Position under the Companies (Accounts) Rules, 2014 Rule 13: The Internal Auditor may or may not be an employee of the Company. The term Chartered Accountant shall mean a Chartered Accountant whether engaged in practice or not. The Audit committee shall formulate the: a. Scope b. Functioning c. Periodicity d. Methodology

Related Party Transactions - Companies Act, AS – 18 - Clause 49

Related Party Transactions Companies Act – Approval Mechanism Section 2(76) of the Act defines ‘Related Party’ Section 2(77) of the Act defines ‘Relatives’ Section 188 covers provisions pertaining to Related Parties. (297 and 314) Rule 15 of Companies (Meeting of Board and its powers) Rules, 2014 a. Board resolution required for certain related party transactions b. Certain transactions to require special resolution c. Special resolutions to be by majority-of-minority rule d. Board consent only in a meeting

Related Party Transactions Relatives CA 2013Relatives AS 18 Members of a HUF- Spouse Father*Father Mother*Mother Son*Son Son’s Wife- Daughter Daughters Husband- Brother*Brother Sister*Sister * - includes Step relatives as well * - Revised Clause 49 uses the same definition as CA 2013

Related Party Transactions Related Party CA 2013Related Party AS 18 Director, KMP or their relativesEnterprises control, controlled or under common control A firm, private company in which Director or Manager is a Partners or a Director or a Member Associates and Joint Ventures Public company in which a director or manager owns more than 2% Individuals and their relatives who exercise significant influence on the entity Any body corporate whose board\MD is accustomed to act on instructions of director\MD KMP and their relatives Any person who is accustomed to act on instructions of director\MD Enterprises where individuals or KMP can exercise significant influence Holding, subsidiary, fellow subsidiary or associate company A director or KMP of the holding company or his relative

Related Party Transactions Related Party CA 2013Revised Clause 49 Director, KMP or their relativesInclusive definition based on control or significant influence A firm, private company in which Director or Manager is a Partners or a Director or a Member. All related parties as per CA Act, 2013 Public company in which a director or manager owns more than 2% Has control. Joint control or significant control over the entity Any body corporate whose board\MD is accustomed to act on instructions of director\MD The entity is the member of the same group Any person who is accustomed to act on instructions of director\MD Both entitles are joint venture\associates with a third party Holding, subsidiary, fellow subsidiary or associate company Post-employment benefit plans A director or KMP of the holding company or his relative Two entities are under common control

Related Party Transactions All transactions by a company having Paid-Up Share Capital of more than INR 10 crores shall mandatorily require majority of minority special resolution! Board ResolutionSpecial Resolution a. Sale, purchase or supply of any goods or materials Incase transaction value more than 25% of annual turnover b. Selling or otherwise disposing of, or buying, property of any kind Incase of transaction value more than 10% of net-worth c. Leasing of property of any kindIncase of transaction value more than 10% of annual turnover or net-worth d. Availing or rendering of any servicesIncase of transaction value more than 10% of net-worth e. Appointment of any agentIncase transaction value more than 25% of annual turnover f. Appointment to any office or place of profit Monthly remuneration exceeding INR 2,50,000\- g. Underwriting the subscriptionIncase of transaction value more than 1% of net-worth

Related Party Transactions AS-18 RPT is ‘anytime during the year’ as against ‘on the date’ for CA AS-18 RPT is ‘transaction based’ as against CA 2013 which is ‘contract based’. AS – 18 requires name disclosure only if transaction value more than 20%. AS-18 requires previous year disclosures as well. AS-18 requires name of related parties irrespective of transactions. AS -18 consolidated RPT will not include holding-subsidiary transactions.

Related Party Transactions Companies Act – Disclosures The agenda of the Board meeting shall disclose- 1. the name of the related party and nature of relationship; 2. The nature and duration of the contract; 3. the material terms of the contract; 4. any advance paid or received; 5. the manner of determining the pricing; 6. whether all factors relevant to the contract have been considered, if not, the details of factors not considered; and 7. any other information relevant or important Notice and Explanatory statement for members to include: 1. Name of the related party and nature of relationship; 2. name of the director or key managerial personnel who is related; 3. nature, material terms, monetary value and particulars of the contract or arrangement; 4. Other important terms

Related Party Transactions Companies Act – Other provisions The interested director should not be present when the matter is being discussed. All such matters shall be referred\disclosed to in the Board’s report along with the justification Transactions with wholly-owned subsidiaries also covered. If a person enters in a RPT which is violation of Section 186, then he is disqualified for reappointment. Schedule IV – Code of Independent Directors includes responsibility on Independent Directors to ensure RPT compliance Violation would result to i) Indemnification ii) Imprisonment and\or iii) Fine Every director to disclose his interested entities at: 1 st meeting from his appointment Every first meeting in the financial year Whenever there is a change

Related Party Transactions SEBI Clause 49 under Listing Agreement – Coming Soon… RPT Policy to be formulated for dealing with RPT. All RPT to require prior approval of Audit Committee. All material RPT to require majority of minority resolution. Transactions more than 5% of turnover or 25% of net- worth to be deemed material. RPT Policy to be uploaded on the website and Annual Report of the Company. All material RPTs to be disclosed on a quarterly basis to SE.

Thank You! Anand Bathiya The views expressed herein are individual and personal in nature and neither the organizing body nor the representative firm has endorsed or supports nor rejects the view of the individual. Reliance on matter herein should be after due care and professional advice.