Event Based Compliances

Overview of Appointment and Resignation of Director

It is well said that Directors are the brain of the company. They are the managerial staff who control and administer the company's services. The revolution of directors takes place in one or another way – either by the selection of new director or withdrawal of existing. Endeavor to carry out the change of directors is always to guarantee an optimum blend of experts on board for the interest of the company. The authorization to approve the resignation of the director lies with the parts of BoD, whereas the appointment must be made through the consent of shareholders. Whether it is an appointment, removal, or resignation, the change does not take effect continuously; the intimation is made to 'Ministry of corporate affairs.'

What is the Eligibility Criteria to be a Director?

There are no designated qualifications, but an individual should comply with the following mentors be a director:

However, according to the law, a specific natural person only can be a director of any company.

Age Demarcation

There is no alternate fixed age for being a director, but it is essential that the person who should be competent to enter into any contract. Moreover, in a matter of 'managing director,' 'full-time' director, or 'independent' director of a recognized company, the person becomes eligible to be a director if he is of 21 years and has not reached the age of 70 years officially.

Determination of Nationality

There is no restriction. However, there must be a minimum of one Indian director in the company.

DIN Needed

To be eligible to be designated as a company's director, the person must get a Director Identification Number. The main intention behind having a DIN is to make assured that fake directors do no fraud, and in case anyone ventures any such criminal activity, they can be traced within this unique number.

Limit of Valid directorship

A personality can only be a director of 20 separate companies at a time. Out of these 20 companies, only ten can be public companies.

Documents needed for Appointment and Resignation of Director

·        Photograph: Passport size photo of the Director to be designated

·        PAN Card: Self-attested PAN card of the Director to be designated

·        Proof of Residency: Aadhar Card/ Voter ID/ Passport/ Driving License director to be appointed

·        Digital Signature Certificate: DSC of the ongoing Director and Director to be eliminated/removed

·        Identity proof before-mentioned as Passport/Election card/Driving License/Aadhar card 

·        Mobile number and Personal & official email id of the Director 

·        It is mandatory to apostille all the documents apostilled if the Director is a non-resident of India.

·        Notice of resignation filed with the company

·        Proof of dispatch

·        Acknowledgment of form, if received.

A company must prepare certain preliminary documents before applying for company registration. The Memorandum of Association (MOA) and Articles of Association (AOA) are two such preliminary documents that every company must prepare. The MOA and AOA should be filed with the Registrar of the Companies (ROC) along with the company incorporation form.

The Memorandum of Association (MOA) and Articles of Association (AOA) define a company’s scope of work, objectives, rules and internal management. The MOA and AOA are two essential documents that are the basis of the company’s constitution. They are indispensable, and the company’s foundation stands upon them. Therefore, the founders of a company must draft them with utmost clarity and precision.

Memorandum of Association (MOA) of a Company

A Memorandum of Association (MOA) is a document containing details of the company’s constitution and is the foundation of the company’s structure. It is known as the charter of a company. It lays down the scope of the company’s activities, objectives for which it is formed, determine the scope of its authority and its relationship with the outside world. 

The creation of an MOA is the first step towards company registration. During the formation of a company, the company members must subscribe to the MOA. Subscribing to an MOA means to put one’s mark or signature on the document as attestation or approval of its contents. 

Contents of MOA

Every company’s MOA should contain the following five clauses:

• Name clause
• Registered office clause
• Object clause
• Liability clause
• Capital clause

Articles of Association (AOA) of a Company

The Articles of Association (AOA) of the company contains its rules or bye-laws and regulations that control or govern the conduct of its business and manage its internal affairs. The AOA is subordinate to the MOA of a company and is governed by the MOA. Every company must have an AOA as it plays a vital role in defining its internal rights, workings, management and duties. The contents of AOA should be in sync with the MoA and the Companies Act, 2013.

Contents of AOA

• Details regarding the share capital
• Details of director’s qualification, appointment, powers, remuneration, duties etc.
• Rules regarding company dividends and reserves
• Details regarding company accounts and audit
• Provisions relating to the company’s borrowing powers
• Provisions relating to conducting meetings
• Process of winding up of the company
• Both the MOA and AOA are essential documents of a company. They help the company owners and founders run the company efficiently and streamline its business. Hence, they are vital documents for a One Person Company (OPC), private company or public limited company.

INTRODUCTION

Change in Object clause of the Company involves Alteration of Memorandum of Association of the Company. Section 13 of Companies Act 2013 regulates the process of amendment in Memorandum of Association and is applicable to all Companies.

Section13 of the Companies Act, 2013 deal with change of object which says that the object of the company can be changed by a special resolution and the Registrar shall register any alteration of the memorandum with respect to the objects of the company and certify the registration.

Applicable Provisions:

1. Section 13 & 173 of Companies Act, 2013
2. Regulation 30, 44 and 46 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015

MANDATORY REQUIREMENTS

1. No alteration made in Memorandum shall have any effect until it has been registered by the Registrar.
2. No alteration shall be made effective until it has been approved by Members of the Company by way of Special Resolution.
3. FOLLOWING PROCEDURE IS TO BE FOLLOWED
   1. Convene a Meeting of Board of Directors [As per section 173 & SS-1]
      • Issue Notice of Board Meeting to all the Directors of Company at their addresses registered with the Company, at least 7 days before the date of Board Meeting. A shorter notice can be issued in case of urgent business.
      • Attach Agenda, Notes to Agenda and Draft Resolution with the Notice.
      • Hold a meeting of Board of Directors of the Company and pass the necessary Board Resolutions
        • to consider and approve the alteration in the Object Clause of MOA of the Company subject to Members’ Approval of the Company.
        • to fix day, date, time and venue for holding General Meeting of the Company.
        • to approve the draft notice of General Meeting or Postal Ballot along with explanatory statement annexed to the notice as per requirement of the Section 102 of the Companies Act, 2013.
        • to authorize the Director or Company Secretary to sign and issue notice of the General Meeting or Postal ballot and to do such acts, deeds and things as may be necessary to give effect to the Board’s decision.
        • to delegate authority to Company Secretary or any one director of the company to sign, certify and file the required form with Registrar of Companies and to do all such acts and deeds as may be necessary to give effect to the alteration of Object Clause.
      • Listed Company shall submit the disclosure of Board Meeting as soon as reasonably possible and but not later than 30 minutes from the conclusion of the Board Meeting and post the same on the website of the Company within 2 working days. [Regulation 30 & 46(3) of the SEBI (LODR) Regulations, 2015]
      • Prepare and Circulate Draft Minutes within 15 days from the conclusion of the Board Meeting, by Hand/Speed Post/Registered Post/Courier/E-mail to all the Directors for their comments. [Refer the Procedure for Preparation and Signing of Minutes of Board Meeting]

Overview of NBFC Compliance

Lately, RBI compliances have become more complex for NBFCs. There used to be a time when Non-Banking Financial Companies enjoyed benefits over banks. There was a time when NBFCs compliances were far simpler and lenient but after Sahara case, RBI has drafted new compliances for NBFCs and keep them under their screening. A portion of the significant rules are Securitization of Standard Assets and Guidelines for Private Placement of NBFCs. RBI is continuing putting forth attempts for preventing theory in NBFCs .

Non-Banking Financial Companies are registered under the Companies Act 2013, and are involve in the business of receiving deposits, loans and advances, acquisition of stock/bonds/shares, debentures and securities issued by the government. NBFCs are actively involved in the financial activities and are registered by the Reserve Bank of India. No NBFC can run their business without receiving the license from Reserve Bank of India.

What are the Regulations applicable on non-deposit accepting NBFCs whose asset size is less than  500 Crore?

In the event that the NBFCs have not obtain any access to public funds and don't have any client interface will not be exposed to any guideline either prudential or lead of business guidelines.

NBFCs having client interface will be exposed uniquely to lead of business guidelines including FYC, KYC, if they are not getting access to public funds. As though they are getting to the open assets, they will be exposed to restricted prudential guidelines.

NBFCs which are associated with both open assets and client interface exist are exposed to both limited prudential and business guidelines.

Essential NBFC compliance Checklist for Non-Deposit and Deposit-taking Company

In the Case of Annual Compliance

• Unaudited March Monthly return/NBS-7 on or before 30th June
• Statutory Auditors certificate on Income and assets with the time limit on or before 30th June
• Information about companies having FDI/Foreign Funds with the time limit on or before 30th June
• Audited March monthly return/NBS-7 filed upon completion
• File audited annual balancesheet and P&L Account with the time limit of one month from the date of signoff
• Resolution of Non-Acceptance of Public Deposit with the time limit of before the commencement of the new Fiscal tear
• Declaration of Auditors to Act as Auditors of the Company on annual basis

Monthly Compliance

• Monthly return by 7th of every month

Periodical Compliances

• Appointment of Director time limit is within 30 days of appointment
• Resignation of Director (DIR-12+ challan report) with the time limit of within 30 days of appointment
• Adoption of any notification in the ensuing Board Meeting and filing the certified copy with RBI