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The New Companies Bill, 2011 have 29 Chapters, 407 Clauses (Sections) & 7 Schedules
The Company Secretary (CS in short) profession has lot more in the new Bill. This presentation intents to have a birds eye view of what is in the cards for the CS profession.
This presentation includes the major provisions pertaining to company secretary profession, and a comparison with the provisions of existing Companies Act 1956 vis--vis Companies Bill 2011 All contents prepared from the proposed Companies Bill, 2011 as introduced in Parliament. Please refer to any updates from time-to-time.
This presentation document is Open Source, any individual can host the same in websites / blogs. Alteration of this presentation in any form is an offence, and an infringement of the copyright of the author. Copyright 2012 Corporate Intelligence Education & Research (CIER)
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CS IN DEFINITIONS
Definition of CS: 2 (24) company secretary or secretary means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 who is appointed by a company to perform the functions of a company secretary under this Act; Definition of CS in Practice: 2 (25) company secretary in practice means a company secretary who is deemed to be in practice under sub-section (2) of section 2 of the Company Secretaries Act, 1980;
Definition of Expert:
2 (38) expert includes an engineer, a valuer, a chartered accountant, a company secretary, a cost accountant and any other person who has the power or authority to issue a certificate in pursuance of any law for the time being in force;
CS IN DEFINITIONS (CONT.)
Definition of Key Managerial Personnel: 2 (51) key managerial personnel, in relation to a company, means (i) the Chief Executive Officer or the managing director or the manager; (ii) the company secretary; (iii) the Chief Financial Officer if the Board of Directors appoints him; and (iv) such other officer as may be prescribed.
26. (1) Every prospectus issued by or on behalf of a public company either with reference to its formation or subsequently, or by or on behalf of any person who is or has been engaged or interested in the formation of a public company, shall be dated and signed and shall (a) state the following information, namely: (i) names and addresses of the registered office of the company, company secretary, Chief Financial Officer, auditors, legal advisers, bankers, trustees, if any, underwriters and such other persons as may be prescribed;
Provided that nothing contained in this sub-section shall disentitle a key managerial personnel from being a director of any company with the permission of the Board: (4) If the office of any whole-time key managerial personnel is vacated, the resulting vacancy shall be filled-up by the Board at a meeting of the Board within a period of six months from the date of such vacancy.
(3) The Board of Directors, in their report made in terms of sub-section (3) of section 134, shall explain in full any qualification or observation or other remarks made by the company secretary in practice in his report under sub-section (1).
(4) If a company or any officer of the company or the company secretary in practice, contravenes the provisions of this section, the company, every officer of the company or the company secretary in practice, who is in default, shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
Explanation.For the purpose of this section, the expression secretarial standards means secretarial standards issued by the Institute of Company Secretaries of India constituted under section 3 of the Company Secretaries Act, 1980 and approved by the Central Government.
(2) The provisions contained in section 204 and section 205 shall not affect the duties and functions of the Board of Directors, chairperson, managing director or whole-time director under this Act, or any other law for the time being in force.
SEC. 203 APPOINTMENT SEC. 204 SECRETARIAL AUDIT SEC. 205 FUNCTIONS OF COMPANY SECRETARY
MAJOR COMPARISON OF PROVISIONS RELATING TO COMPANY SECRETARY IN COMPANIES ACT, 1956 AND COMPANIES BILL, 2011
Definition of CS in Clause 2 (24) more simple and specific Definition of PCSP in Clause 2 (25) Conceptually No change Appointment dealt in Clause 203 as a Key Managerial Personnel Certain classes of companies limit will be notified in Rules No exemption route A more managerial position with statutory backup Company Penalty of Rs.1,00,000 to Rs.5,00,000; Director & every Key Managerial Personnel - Penalty of Rs.50,000, and for continuing offence Penalty of Rs. 1,000 per day. Secretarial Audit mandatory for all listed companies, and such other companies to be prescribed (Cl.204) All companies shall comply with Secretarial Standards of ICSI relating to Board & General Meeting (Cl.118(10))
Appointment dealt in Sec.383A Appointment limit Rs.5 Cores paid-up capital Appointment exemption route available A statutory position Penalty for non-appointment of secretary Rs.500 per day
No provision for Secretarial Audit No provision for compliance with Secretarial Standards of ICSI
Annual Return Signing by a director and a Secretary, if any. And if there is no secretary then by two directors.
Annual Return to be signed by a director and the company secretary, or where there is no company secretary, by a company secretary in practice:
Companies having a minimum paid-up capital and up to Rs.5 cores a Compliance Certificate from PCS is required.
Concept of Compliance Certificate from practicing company secretary re-casted in a new form clubbed with Annual Return Certification of a listed company and such other companies as may be prescribed. 92 (2) The annual return, filed by a listed company or, by a company having such paidup capital and turnover as may be prescribed, shall be certified by a company secretary in practice in the prescribed form, stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act.
Every company in relation to which the order is made shall, until the completion of the scheme, file a statement in such form and within such time as may be prescribed with the Registrar every year duly certified by a chartered accountant or a cost accountant or a company secretary in practice indicating whether the scheme is being complied with in accordance with the orders of the Tribunal or not.
Copyright 2012 Corporate Intelligence Education & Research (CIER) Presentation Series 01 on New Company Law in India