Category Archives: Corporate Law

Extended Upto 30-09-2020 Companies (Meetings of board and its powers) 2nd Amdt Rules 2020 clarification dt 24-06-2020

 PROVISION BEFORE AMENDMENT:

4 Matters not to be dealt with in a Meeting through Video Conferencing or Other Audio-Visual Means

1(1) [The] following matters shall not be dealt with in any meeting held through video conferencing or other audiovisual means.-

(i) The approval of the annual financial statements;

(ii) The approval of the Board’s report;

(iii) The approval of the prospectus;

(iv) The Audit Committee Meetings for 2[consideration of financial statement including consolidated financial statement if any, to be approved by the Board under sub-section (1) of section 134 of the Act]; and

(v) The approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover.

PROVISION after 1st AMENDMENT:

4 Matters to be Dealt With in a Meeting Through Video Conferencing or Other Audio-Visual Means Upto 30 June 2020.

1(1) [The] following matters shall not be dealt with in any meeting held through video conferencing or other audiovisual means.-

(i) The approval of the annual financial statements;

(ii) The approval of the Board’s report;

(iii) The approval of the prospectus;

(iv) The Audit Committee Meetings for 2[consideration of financial statement including consolidated financial statement if any, to be approved by the Board under sub-section (1) of section 134 of the Act]; and

(v) The approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover.

PROVISION after 2nd AMENDMENT (24/06/2020):

4 Matters to be Dealt With in a Meeting Through Video Conferencing or Other Audio-Visual Means Upto 30 September 2020.

1(1) [The] following matters shall not be dealt with in any meeting held through video conferencing or other audiovisual means.-

(i) The approval of the annual financial statements;

(ii) The approval of the Board’s report;

(iii) The approval of the prospectus;

(iv) The Audit Committee Meetings for 2[consideration of financial statement including consolidated financial statement if any, to be approved by the Board under sub-section (1) of section 134 of the Act]; and

(v) the approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover.

24-06-2020 companies (Appointment and Qualifcation of Directors) 3rd Amendment Rules 2020 clarification

Actually provision For appointed as an independent director.

  1. Compliances required by a person eligible and willing to be appointed as an independent director.

(1) Every individual –

(a) who has been appointed as an independent director in a company, on the date of commencement of the Companies (Appointment and Qualification of Directors) Fifth Amendment Rules, 2019, shall within a period of 5[seven months] from such commencement; or

(b) Who intends to get appointed as an independent director in a company after such commencement, shall before such appointment,

Apply online to the institute for inclusion of his name in the data bank for a period of one year or five years or for his life-time, and from time to time take steps as specified in sub-rule (2), till he continues to hold the office of an independent director in any company:

Provided that any individual, including an individual not having DIN, may voluntarily apply to the institute for inclusion of his name in the data bank.

*Commencement date was: 01 December 2019.

 

Provision For appointed as an independent director After Amendment date 24/06/2020.

  1. Compliances required by a person eligible and willing to be appointed as an independent director.

(1) Every individual –

(a) who has been appointed as an independent director in a company, on the date of commencement of the Companies (Appointment and Qualification of Directors) Fifth Amendment Rules, 2019, shall within a period of 5[Ten months] from such commencement; or

(b) Who intends to get appointed as an independent director in a company after such commencement, shall before such appointment,

Apply online to the institute for inclusion of his name in the data bank for a period of one year or five years or for his life-time, and from time to time take steps as specified in sub-rule (2), till he continues to hold the office of an independent director in any company:

Provided that any individual, including an individual not having DIN, may voluntarily apply to the institute for inclusion of his name in the data bank.

*Commencement date was: 01 December 2019.

The conclusion Time period of 7 months ended on June 2020 so time period was extended to 10 months ends on September 2020 for apply online for the inclusion of name in data bank who already appointed as an independent director as on 01 Dec 2019 as an independent director.

MCA Name Reservation and RSUB and Change of name Time extension Circular

Subject Extension of RSUB validity for companies Time extension as per Circular Circular Apply Conditions Example
Name reservation for companies Names reserved for 20 days for new company incorporation. SPICe+ Part B needs to be filed within 20 days of name reservation Names expiring any day between 15th March
2020 to 30th June would be extended by 20 days
beyond 30th June 2020.
*The name must be Expire between 15th march 2020 to 30th june 2020 1.ABC pvt ltd The name reservation expire on 30th june 2020. but due to circular now name expire on 20 July 2020.
2.ABC pvt ltd The name reservation expire on 20th March 2020. but due to circular now name expire on 20 July 2020.
3.ABC pvt ltd The name reservation expire on 01 july 2020 then these circular not applies and no time extension allowed.
Change of Name of companies Names reserved for 60 days for change of name of company. INC-24 needs to be filed within 60 days of name reservation. Names expiring any day between 15th March
2020 to 30th June would be extended by 60
days beyond 30th June 2020.
*The name must be Expire between 15th march 2020 to 30th june 2020 1.ABC pvt ltd The name reservation expire on 30th june 2020. but due to circular now name expire on 29 August 2020.
2.ABC pvt ltd The name reservation expire on 20th March 2020. but due to circular now name expire on 29 August 2020.
3.ABC pvt ltd The name reservation expire on 01 july 2020 then these circular not applies and no time extension allowed.
Name Resubmition(RSUB) Extension of RSUB validity for
companies/LLPs
SRNs where last date of Resubmission (RSUB) falls between 15th March 2020 to 30th June 2020, additional 15 days beyond 30th June 2020 would be allowed. However, for SRNs already marked under NTBR, extension would be provided on case to case basis. *The name Resubmission must expire between 15th march 2020 to 30th june 2020 1.ABC pvt ltd The name resubmission expire on 30th june 2020. but due to circular now name expire on 15 July 2020.
2.ABC pvt ltd The name resubmission expire on 20th March 2020. but due to circular now name expire on 15 July 2020.
3.ABC pvt ltd The name resubmission expire on 01 july 2020 then these circular not applies and no time extension allowed.
Namee reservation for LLPs Names reserved for 90 days for new LLP incorporation/change of name. FiLLiP/Form 5 needs to be filed within 90 days of name reservation. Names expiring any day between 15th March 2020 to 30th June would be extended by 20 days beyond 30th June 2020. *The name Reservation must expire between 15th march 2020 to 30th june 2020 1.ABC LLP The name Reservation expire on 30th june 2020. but due to circular now name expire on 20 July 2020.
2.ABC LLP The name reservation expire on 20th March 2020. but due to circular now name expire on 20 July 2020.
3.ABC LLP The name reservation expire on 01 july 2020 then these circular not applies and no time extension allowed.

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MCA scheme for relaxation of charges CHG-1 CHG-9 From 01-03-2020 to 30-09-2020

Questions Answers
 If Charge create or modify time limit of 120 days Expire on or before 29/02/2020 then Can we took benefit of these circular? No,
Example:ABC ltd charge create or modify on or before 01/11/2019 then such company not taken benefit of these circular.
Can these circular benefits take when on 29/02/2020, charge creation or modification 119 days count or expire? Yes
No days count from 01/03/2020 to 30/09/2020 on charge creation or modification? Yes
Can normal fees Charge when charge create or modify between 01/03/2020 to 30/09/2020 Yes
Can the same amount of fees charge until 30/09/2020 that is fee charge on 29/02/2020 when 120 days not expire on 29/02/2020? Yes, same fee charge that is charge on 29/02/2020
These circular applies on which forms? *CHG-1
*CHG-9
Can these circular Applies on the satisfaction of charge in form chg-4 No, these circular not apply on the satisfaction of charge
Can circular apply on charge create or modify on debentures? Yes Applies
How many days count on a charge if charge create or modify on 01/03/2020 No single day count until 30/09/2020
How many days count on a charge if charge create or modify on 29/02/2020 1Day count until 30/09/2020
Can any  fees charge for taken these circular benefit No, Any amount of fees no charge
Can any form is required to file for Taken these circular benefit? No, these circular automatic applies on All companies no additional form is required to charge.
What is the effective date of these circular This circular was immediate effective from 17/06/2020.
What is the cutoff date of these circular Cut off date was 30/09/2020
What charge creation or modification cover on these circular? All charges cover whose 120 days not expire on 29/02/2020
Conclusion
1. From 01/03/2020 to 30/09/2020 Days not count in Charge Creation or Modification time limit.
2.The charge created before 01/03/2020 must have under time under 120 days as on 29/02/2020, and fee that is charged on 29/02/2020 same fees charge from 01/03/2020 until 30/09/2020.
3.charge created between 01/03/2020 to 30/09/2020 normal fees charge until 30/09/2020.
4.Applies only on form CHG-1 (for creation or modification of charge other than debentures)And Form CHG-9 (for creation or modification of charge on debentures)
5.satisfaction of charge (CHG-4) excluded from these circular.
6.When on 29/02/2020 charge creation or modification time expires then these circular not applicable

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FAQ CONDUCTING EXTRA ORDINARY GENERAL MEETING THROUGH VIDEO CONFERENCING OR OTHER AUDIO VISUAL MEANS

FAQ

CONDUCTING EXTRAORDINARY GENERAL MEETING THROUGH VIDEO CONFERENCING OR OTHER AUDIO VISUAL MEANS

This procedure/rule applies on any EGM of unavoidable nature conducted till 30.06.2020.

Through Video conferencing (VC) or Audio visual means (OVAM).

Not applicable on Annual general meeting, All the items of ordinary business and items where any person has a right to be heard.

All the meetings of urgent nature conducted before 30/06/2020.

NO, such a facility can be availed by those companies also on which Sec. 108 and 110 is not applicable.

applicable on all companies such as Listed, Private, Public, Small etc.

Along with meeting all disclosures, inspection of related documents by members, or authorizations for voting by bodies corporate etc. as provided in the Act and the articles of association of the company are made through electronic mode

The procedure divided into two types of companies:- (A) For Companies which are required to provide the facility of e-voting under the Act, *or any other company which has opted for such facility (B) For Companies which are not required to provide the facility of e-voting under the Act

1. Meeting shall be recorded and the transcript, Recordings of such meeting shall be kept in the safe custody of company.
2. In case of public company having website then such transcripts need to make available on that website also.

Note: no requirement to publish the recorded transcript by private company.

1. Must allows two-way teleconferencing or WebEx for ease of participation
2. Facility to participants to pose questions concurrently or given time to submit their questions in advance in the e-mail address.
3. CAPACITY:
a. FOR PART A COMPANY: Such facility must have a capacity to allow at least 1000 members to participate on first come first serve basis.
b. FOR PART B COMPANY: Such facility must have a capacity to allow at least 500 members or members equal to the total number of members of the Company (whichever is lower) to participate on first come first serve basis.

The large shareholders (i.e., shareholders holding 2% or more shareholdings), promoters, institutional investors, directors, key managerial personnel, the chairpersons of Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship Committee, auditors etc. may be allowed to attend the meeting without restriction on account of first come first serve basis.

Facility for join the meeting shall be open at least 15 minute before the time to start meeting and shall be open till 15 minute after the expiry of schedule time.

Yes, and the quorum will be counted as per section 103 of companies Act, 2013.

1. Only those members, who are present in the meeting through VC or OAVM facility and have not cast their vote on resolutions through remote e-voting and are otherwise not barred from doing so, shall be allowed to vote through e-voting system or by a show of hands in the meeting.
2. Before the actual date of the meeting, the facility of remote e-voting shall be provided in accordance with the act and the rules.

1. The Company shall provide a designated e-mail address to all members at the time of sending the notice of meeting so that the members can convey their vote, when a poll is required to be taken during the meeting on any resolution, at such designated email address.
2. During the meeting held through VC or OAVM facilities, where a poll on any item is required, the members shall cast their vote on the resolutions only by sending emails through their email address which are registered with the company. The said email shall only be sent to the designated email address circulated by the company in advance.
3. The confidentiality of the password and other privacy issues associated with the designated e-mails shall be strictly maintained by the company at all times. Due safeguards with regards to authenticity of email address(as) and other details shall be taken by the company.

1. If prescribed in the AOA then as per article.
2. If not prescribed, then:-
a. where there are less than 50 members present at the meeting, the Chairman shall be appointed in accordance with Section 104;
b. in all other cases, the Chairman shall be appointed by a poll through E-voting

1. If prescribed in the AOA then as per article.
2. If not prescribed, then:-
a. where there are less than 50 members present at the meeting, the Chairman shall be appointed in accordance with Section 104;
b. in all other cases, the Chairman shall be appointed by a poll conducted through Email as procedure followed for voting by poll.

NO, Proxy is not allowed to appoint in such meeting. However AR can be appointed for such meeting as per requirements.

1. The Chairman of the meeting must ensure that the facility of e-voting system is available for the purpose of conducting a poll during the meeting
2. Voting manner depends on the number of members present in such meeting, :-
a. where there are less than 50 members present at the meeting, the voting may be conducted either through the e-voting system or by a show of hands, unless a demand for poll is made in accordance with section 5109 of the Act,
b. Once poll demanded the voting shall be conducted through the e-voting system;
c. In all other cases, the voting shall be conducted through e-voting system

1. Where less than 50 members are present in a meeting, the chairman may decide to conduct a vote by show of hands, unless a demand for poll is made
2. Once such demand is made, the procedures of voting through designated e-mail by the members on provided e-mail ID of the Company is to be followed.
3. In case the counting of votes requires time, the said meeting may be adjourned and called later to declare the result.
4. In other cases procedures of voting through designated e-mail by the members on provided e-mail ID of the Company

IT is compulsory For at least one independent director (if appointed), and the auditor or his authorized representative, who is qualified to be the auditor.

If II is members they are encouraged to attend the meeting and cast votes.

1. The notice for the general meeting shall make disclosures with regard to the manner in which framework provided in this Circular shall be available for use by the members and
2. It Also contain clear instructions on how to access and participate in the meeting.
3. The Company shall also provide a helpline number through the registrar & transfer agent, technology provider, or otherwise, for those shareholders who need assistance with using the technology before or during the meeting. (FOR PART A COMPANY).
4. Company must provide Email address in the notice so that member can send their vote in case of voting done through poll. (FOR PART B company)
5. A copy of the meeting notice shall also be prominently displayed on the website of the company and due intimation may be made to the exchanges in case of a listed company

The company can adopt such circular by taking approval of members as per sec 101 of company act, 2013

All companies need to inform to ROC within 60 days of meeting.