Sections applicable to Private Companies under new company act.

As 99 sections of Companies Act, 2013 already notified and more to follow in the near future, it’s time for private companies in India to get started with the understanding of the Act and the possible implications, it can have on the functioning of their Companies, more so when we know that the new Act is rigid on private companies. The new Act holds a lot for such companies, in terms of difficulty in transacting related party

transactions and more disclosures and secretarial compliances. This checklist will give you a snapshot of all the major sections applicable on private companies under the new Act and will serve as a quick dashboard.

Table

Clause/Section	Notified- Yes or No	Compliance Required/Impact
2(6)- Definition- Associate Company	Yes	Associate company will be considered as Related Party and will have implications under financial statements and related party contracts.
2(68)- Definition of a Private Co.	Yes	A private company can now have maximum of 200 members
5- Articles	No	Articles can now have entrenchment provisions. Entrenchment provision means a provision which makes alteration of specified provisions restrictive than those applicable in the case of a special resolution
17- Copies of memorandum, articles, etc., to be given to members.	No	Copy of Memorandum, Articles to be provided to member within 7 days of request
19-Subsidiary company not to hold shares in its holding company.	Yes	• A subsidiary company can’t hold shares in its holding company, either by itself or through its nominees. • A holding company can’t allot or transfer its shares to any of its subsidiary companies.
21- Authentication of documents, proceedings and contracts.	Yes	Any document or proceeding requiring authentication by a company or contracts made by or on behalf of a company may be signed by any KMP or an officer of Company, duly authorised by Board.
42-Private Placement	No	• A private company may do private placement through private placement offer letter • Number of persons can’t exceed 50 in a financial year • Money can be brought only through cheque or demand draft or other banking channels but not by cash
48- Variation of shareholders rights	No	Rights of a particular class of shares may be varied through special resolution
50- Company to accept unpaid share capital, although not called up.	Yes	• If authorised by Articles, a company can accept unpaid amount, even if the same is not called up by the Board • However, that shareholder will not have any voting rights, until and unless that amount is called up
54- Issue of sweat equity shares	No	• A company may issue sweat equity shares through special resolution, which will rank pari paasu with other equity shares • Such shares can’t be issued, before 1 year has elapsed from the date the company commences business
55- Issue and redemption of preference shares.	No	A company can’t issue irredeemable preference shares and should be redeemable within a period not exceeding 20 years from the date of their issue
61- Power of limited company to alter its share capital.	No	A company can increase, sub-divide, consolidate, convert, cancel its share capital through ordinary resolution
62- Further issue of share capital	No	A company can increase its subscribed capital through the following: • rights issue • to employees under a scheme of employees’ stock option, subject to special resolution passed by company • to any other person, if authorised by special resolution, if the price of such shares is determined by the valuation report of a registered valuer
63- Issue of bonus shares	No	A company can issue bonus shares if its authorised through Articles and members, provided it has not defaulted in any of the statutory payments
68- Power of company to purchase its own securities.	No	This provision is essentially the same as before, except for the change in the definition of securities premium reserve
69- Transfer of certain sums to capital redemption reserve account	Yes	If Buyback is done out of free reserves or securities premium account, a sum equal to the nominal value of the shares so purchased shall be transferred to the Capital Redemption Reserve Account.
70- Prohibition for buy-back in certain circumstances	No	No company can purchase its own shares directly or indirectly from its subsidiary or investment company
71- Debentures	No	• A company can issue fully or partly convertible debentures, with the shareholders approval through special resolution • Debentures with voting rights can’t be issued. • Secured and unsecured debentures can be issued
77- Duty to register charges, etc	No	A charge created within or outside India, on its property or assets or any of its undertakings, whether tangible or otherwise, and situated in or outside India has to be registered with concerned Registrar of Companies(ROC)
82- Company to report satisfaction of charge.	No	Company to intimate satisfaction of charge to concerned ROC.
89- Declaration in respect of beneficial interest in any share.	No	Declaration of beneficial interest, details of registered owner and beneficial owner has to be filed with concerned ROC
92- Annual Return	No	More details as follows has been specified to be included in Annual Return: • Remuneration of directors and key managerial personnel • Principal business activities • Particulars of its holding, subsidiary and associate companies • Details of Board meeting, shareholders meetings along with attendance details • Penalty or punishment imposed on the company, its directors or officers and details of compounding of offences Also an extract of annual return will be a part of Directors Report
96-Annual General Meeting (AGM)	No	The only change in the section is as follows: • First AGM has to b convened within 9 months from the closure of financial year. • Business hours of AGM has been specified as 9 a.m. and 6 p.m.
100- Calling of extraordinary general meeting (EGM)	Yes	Board may call EGM, when required or on the requisition of members
101- Notice of meeting	No	• 21 clear days notice has to be given for every general meeting. • Notice of general meeting also has to be sent to every director • Every general meeting can be done with shorter notice with 95% shareholders approval
102- Statement to be annexed to notice	Yes	Every company is required to give explanatory statement for every special business, whereby interest of director and the manager, key managerial personnel and their relatives has to be given
103- Quorum of meetings	Yes	Same as before. 2 members personally present shall be the quorum for a general meeting
104-Chairman of meetings.	Yes	Members can elect a chairman amongst themselves, on show of hands, unless otherwise provided in AOA
105- Proxies	Yes	A member who is entitled to attend and vote at a general meeting, may appoint proxy
106- Restriction on voting rights	Yes	Company can restrict voting powers of members, if calls have not been paid by him
107- Voting by show of hands	Yes	Voting on any resolution to be decided by show of hands
109- Demand of poll	No	Member/members present in person or by proxy having at least 1/10th of the total voting power or holding paid up shares of atleast Rs. 5 Lakhs may demand a poll.
110- Postal Ballot	No	For private companies having members more than 50, following prescribed matters shall be passed through postal ballot: • Alteration in objects clause of Memorandum • Alteration of Articles for conversion of private company into public or vice versa • Change in place of registered office outside the local limits of any city, town or village • Issue of shares with differential rights • Variation in the rights attached to any class of securities • Buyback of shares • Appointment of small shareholder director • Sale of the whole or substantially the whole of an undertaking of a company
113- Representations of Corporate in general meetings	Yes	If a body corporate is a member of a company, then the Board of that body corporate or other governing body may authorise some person to attend the general meeting
117- Resolutions and agreements to be filed.	No	Certain new board resolutions as follows, will have to be registered by concerned ROC: • For making calls • Authorising buyback • Borrowing money • Investing funds of Company • Giving loans, guarantee or security • For approving financials statements and Directors Report
118- Minutes of proceedings of general meeting, meeting of Board of Directors and other meeting and resolutions passed by postal ballot	No	Secretarial Standard 5 will have to be followed for recording Board and members meetings
128- Books of account, etc., to be kept by company	No	Books of accounts may be kept in electronic form.
129- Financial Statement	No	A company having subsiidiary/ies or associate company, shall prepare a consolidated financial statement, in addition to its financial statements and shall lay the same for approval in AGM.
131- Voluntary revision of financial statements or Board’s report	No	The Board may revise the financials statements or Directors Report for any of the 3 previous financial years, if the same didn’t comply with the statutory requirements. However, prior approval from Tribunal is required
134- Financial statement, Board’s Report	No	Additional information (beyond what we now cover) will have to be provided in Directors Report: • Inter-corporate loans and investment • details of related party contracts • Risk Management • Extract of Annual Return
135- Corporate Social Responsibility	Yes	Prescribed companies have to form CSR Committee and have to undertake activities as per Schedule VII
139- Appointment of auditors	No	• Maximum term of office as auditor for an individual is one term of five consecutive years and for an audit firm, is two terms of five consecutive years each. • Cooling off period of 5 years has been specified for both • Member have the option to rotate the audit team and can also appoint multiple auditors
144- Auditor not to render certain services.	No	An auditor can’t provide the following services to company, its holding or subsidiary company (a) accounting and book keeping services (b) internal audit (c) design and implementation of any financial information system (d) actuarial services (e) investment advisory services (f) investment banking services (g) rendering of outsourced financial services (h) management services
146- Auditors to attend general meeting	No	All the general meeting notices have to be sent to the auditor and he shall attend every general meeting, unless exempted by company. He will also have a right to be heard
149- Company to have Board of Directors.	No	• A company can have maximum 15 directors, which may further be increased by passing special resolution • At least 1 director should be resident in India(182 days) in the previous calendar year
161- Appointment of additional director, alternate director and nominee director	Yes(except sub section 2)	• A person who fails to get appointed as a director in a general meeting, can’t be appointed as additional director by the Board • Alternate director can be appointed, for a director who is not present in India for at least 3 months • Nominee director can be appointed as per the Articles of Company
164- Disqualifications for appointment of director	No	Additional disqualifications as follows, have been specified for a director: • Convicted of offence dealing with related party transactions • Convicted of any offence and sentenced for the same for a period of 7 years or more. He will not be eligible to be appointed as a director in any company
165- Number of directorships	No	• A director can hold maximum 20 directorships(including alternate directorship) • Out of this, maximum 10 public companies directorships is allowed • Members may specify lesser limit for directors • Moreover, directorships of private companies, alternate directorships, unlimited company, non-profit company is not exempted from the limit
166- Duties of Directors	No	This is a new section which details the responsibities of a director
167- Vacation of office of a director	No	Additional ground of vacation has been given as violation of any related party transaction provision or for not attending board meetings for a period of 12 months, with or without leave of absence.
168- Resignation of director.	No	A director may resign by giving a notice in writing to Company and the Board shall take note of the same and intimate concerned ROC with the same.
173- Meetings of Board	No	• Gap between 2 board meetings should not be more than 120 days • Items like approval of financial statement and Directors Report can’t be done through video conferencing • Seven days advance notice shall be given to directors for board meeting
174- Quorum for meetings of Board	No	Presence of director through video conferencing will be counted as quorum.
175- Passing of resolution by circulation	No	• Circular resolution is approved if majority of the directors agree for the same. • No requirement of having directors constituting quorum to be present in India • 1/3rd of directors can ask for the circular resolution to be decided in a Board meeting
179- Powers of Board	No	Matters like issuing securities, approval of financial statements and Directors Report, diversifying business, casual vacancy, appointment and removal of KMP, selling investments more than 5% or more of the paid up share capital and free reserves
180- Restrictions on Powers of Board	Yes	• The section has now been made applicable on private companies as well • Approval of members is required through special resolution, instead of ordinary resolution earlier
185- Loan to directors etc.	Yes	• The section has now been made applicable on private companies as well • Central Government approval has been done away with • Company can give loan to M.D. W.T.D. as a part of conditions of service or as per a scheme approved by shareholders
186- Loan and Investment by Company	No	• The section has now been made applicable on private companies as well • Company can’t do investment through more than 2 layers of investment companies • Scope of section has been widened to include loans and investment with any person also.
188- Related Party Transactions	No	• Any transaction with related party for sale, purchase of goods and services, leasing of property office of profit will require board approval • Details of such contract will have to be included in Directors Report with justification
192- Restriction on non-cash transactions involving directors.	Yes	• No director or a person connected to him or holding, subsidiary or associate company can acquire assets from company for other than cash and vice versa, except with prior approval of members through ordinary resolution

Disclaimer: This is a checklist only. Broadly covers substantive law requirements. Check with NovoJuris for any compliance/legal matters