IndianCAs: AGM CAN BE HELD ON SUNDAY: 3 CASES [1 Attachment]

 

[Attachment(s) from Ashwin Nagar included below]

When ROC has sent thousands of notices across the nation, here is something that could be of help to you received from Nitesh More.

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |

Success is not permanent and failure is not final

 

NOTE: Vide letter No. 8/5(1669/65-PR dated 21-1-1963, AGM can be held on Sunday in certain cases: CA Nitesh More

 

 

 AGM CAN BE HELD ON SUNDAY

PREPARED BY CA NITESH MORE: 9883157484

 

CASE 1: YES, ADJOURNED AGM CAN BE HELD ON SUNDAY.

 

CASE 2: YES,  AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

 

CASE 1: YES, ADJOURNED AGMCAN BE HELD ON SUNDAY.

AS PER CIRCULAR NO 8/16(1)/61-PR, THERE IS NO CONTRAVENTION OF SEC. 166(2) IF THE ADJOURNED AGMCOMES TO BE ACCIDENTALLY HELD ON A PUBLIC HOLIDAY.

EXAMPLE:  AGM CALLED ON 29^TH SEP, 2012, ADJOURNED TO 30^TH SEP., 2012 WHICH HAPPENED TO BE PUBLIC HOLIDAY.

COMMENT: PROVISION OF SEC 174 MUST BE COMPLIED WITH I.E. BOARD MEETING MUST BE CALLED TO FIX DATE AND TIME OF ADJOURNED AGMTO 30^TH SEPTEMBER.

SEC 174: QUORUM FOR MEETING HAS BEEN REPRODUCED BELOW:

(1) Unless the articles of the company provide for a larger number, five members personally present in the case of public company (other than a public company which has become such by virtue of section 43A), and two members personally present in the case of any other company, shall be the quorum for a meeting of the company.

(2) Unless the articles of the company otherwise provide, the provisions of sub-sections (3), (4) and (5) shall apply with respect to the meetings of a public or private company.

(3) If within half an hour from the time appointed for holding a meeting of the company, a quorum is not present, the meeting, if called upon the requisition of members, shall stand dissolved.

(4) In any other case, the meeting shall stand adjourned to the same day in the next week, at the same time and place, or to such other day and at such other time and place as the Board may determine.

(5) If at the adjourned meeting also, a quorum is not present within half an hour from the time appointed for holding the meeting, the members present shall be a quorum.

 

 

CASE 2: YES, AGM CAN BE HELD ON SUNDAY IF PROCEDURE TO SEC. 166(2) HAS BEEN FOLLOWED.

 Kindly note that Proviso 2   to sec 166(2) allows private and public ltd co to fix date, time and place of AGM as discussed below:

a)     In case of a private company which is not a subsidiary of a public company: Three options has been provided to fix date, time and place of AGM:

·          Option 1:  by its articles fix the time(date)  for its annual general meetings

·          Option 2:  by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

·         Option 3:  by a resolution   agreed to by all the members thereof, fix the times (date) for its annual general meeting.

b)     In case of a public company or a private company which is a subsidiary of a public company: Two options has been provided to fix date , time and place of AGM:

·         Option 1: may by its articles fix the time(date)  for its annual general meetings

·          Option 2: may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings

 

EXAMPLE: ABC  PVT LTD , on 31^st july,2012 ,  a resolution agreed by all members to fix date of all AGM to 30^th sep . every year. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

Answer: AGM is valid on the following two grounds:

Ground 1: AGM inadvertently held on Sunday as a resolution agreed by all members was passed. As per circular no 8/16(1)/61-pr, there is no contravention of sec. 166(2) if the adjourned AGM comes to be accidentally held on a public holiday. If the adjourned AGM can be valid than  AGM agreed by all members on 30^th September every year can also be valid, even if it eventually comes to Sunday.

Ground 2:  Proviso 2 to sec 166(2) allow private ltd company and public ltd company to hold AGM on a day and place agreed upon by its members. When the proviso allows these companies to fix date and place of AGM by following certain procedure, what is stated in sec 166(2) itself cannot be made applicable to these companies.

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CASE 3: WHEN DATE OF AGM OF 2012 HAS BEEN FIXED IN AGM OF 2011

PREPARED BY CA NITESH MORE

9883157484

 

 Private ltd company as well as public ltd company may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings (Proviso 2 to sec 166(2)) :

 

EXAMPLE: ABC  LTD  by a resolution passed in  its AGM on 30^th September, 2011 , fixed the time for its next AGM on 30^th September , 2012 on 11a.m. Now 30^th September, happens to be Sunday. AGM held on 30^th September, 2012.

 

 

DRAFT REPLY TO ROC

 

To                                                                                                                Date: 03/04/2013

The Registrar of Companies, West Bengal

Nizam Palace
Kolkata - 700020

Sir,

Re: In the matter of the Companies Act, 1956.

and in the matter of M/s. __________ Private Limited/ Limited

(CIN: )

 

Sub: Default Notice on the ground of non-compliance of section 166 of the Companies Act, 1956

 

Reference:  Your dated         letter no.

 

The Company, as well as its directors are in receipt of the above mentioned letter to Show Cause as to why action should not be taken for prosecution under section 168 for holding Annual General Meeting on 30/09/2012 (Public Holiday).

 

We would like to submit as under:

 

·         You attention is invited to letter No. 8/5(1669/65-PR dated 21-1-1963,which states that  sec 166(2) does not make it absolute mandatory to hold AGM only on a day which is public holiday. Attention is also invited to 2^nd proviso to sec. 166(2).

·         The shareholders in AGM of 2012 by passing a resolution under proviso 2 to sec. 166 had fixed 30^th September as date of AGM of 2013.

·         The Company and its officers were under compulsion to hold AGM on Sunday being 30th September which is the date fixed as date of AGM by shareholders in AGM of 2012 as date of AGM of 2013.

·         The Company and its officers inadvertently/accidently hold AGM on Sunday being 30^th September.

·         Under Proviso 2 to sec 166(2), private ltd company as well as public ltd company may by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings.

·         Certified Copy of Resolution passed in 2012 has been attached for your reference.

 

 

In light of the above, the Company and its directors requests to forgo launching of prosecution as well as any penalty proceeding against the Company and its Directors.

 

 

Thanking you

 

For ____________Private Limited/ Limited

 

 

Director

 

RELEVANT SECTION  HAS BEEN REPRODUCED BELOW FOR YOUR READY REFERENCE:

 

SEC 166(2):  Every annual general meeting shall be called for a time during business hours, on a day that is not a public holiday, and shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situates:

Provided that the Central Government may exempt any class of companies from the provisions of this sub-section subject to such conditions as it may impose:

Provided further that -

(a) a public company or a private company which is a subsidiary of a public company, may by its articles fix the time for its annual general meetings and may also by a resolution passed in one annual general meeting fix the time for its subsequent annual general meetings ; and

(b) a private company which is not a subsidiary of a public company, may in like manner and also by a resolution  agreed to by all the members thereof, fix the times as well as the place for its annual general meeting.

 

CA NITESH MORE

9883157484

__._,_.___

Attachment(s) from Ashwin Nagar

1 of 1 File(s)

AGM CAN BE HELD ON SUNDAY 3 CASES.doc

Reply via web post

Reply to sender

Reply to group

Start a New Topic

Messages in this topic ()

Recent Activity:

Visit Your Group

Note: All messages posted by members including me on this group are sent in their personal capacity. No official position held anywhere by them have nothing to do with this email group. The group does   not accept any responsibility with regards to accuracy or the mistakes in the material circulated on this group. Please confirm from your independent source before using the information or material posted on this group.
*************************************************************************
Further, your attention is invited:

The messages on this group are approved only when the moderator finds it of immense importance to the members at general, otherwise, this group is not used for discussion or as discussion forum.

Switch to: Text-Only, Daily Digest • Unsubscribe • Terms of Use • Send us Feedback

.

__,_._,___

High Court on Sec 40(a)(ia)

High Court on Amendment to section 40(a)(ia) by Finance Act, 2008, is retrospectively effective from 1-4-2005

Consolidated Bank Branch Audit Panel in Excel

Here is the Consolidated Bank Branch Audit Panel in Excel for Analysis and conclusion how panel has been constituted without giving weight age to the  Category, done by CA.Mohammed Lakkadsha,

Click Here to download

FCMITDA

Announcement- Presentation of Foreign Currency Monetary Item Translation Difference Account (FCMITDA)

In accordance with the ICAI FAQ on amendment to AS 11 issued on 18 May 2009, FCMITDA was required to be presented separately on the face of the balance sheet, more in line with presentation used for deferred tax asset/ liability. After the issuance of the revised schedule VI (which does not include any presentation for FCMITDA), the ICAI has reconsidered its view on the matter. Now, the ICAI is of the view that FCMITDA is not an asset/ liability of a company. Rather, it represents foreign currency translation loss. Therefore, the ICAI has stated that debit or credit balance in FCMITDA should be presented on the "Equity and Liabilities" side of the balance sheet under the head "Reserves and Surplus," as a separate line item.

Change in PPF Interest Rate

Public Provident Fund Scheme, 1968 (PPF, 1968) and Senior Citizens Savings Scheme, 2004 (SCSS, 2004) - Revision of interest rates RBI/2012-13/458 DGBA.CDD. No. H- 5603 /15.02.001/2012-13 March 28, 2013 The Chairman and Managing Director/Managing Director Head Office, Government Accounts Department State Bank of India/State Bank of Patiala/ State Bank of Bikaner & Jaipur / State Bank of Travancore/ State Bank of Hyderabad/State Bank of Mysore/ Andhra Bank/ Allahabad Bank/Bank of Baroda/Bank of India/ Bank of Maharashtra/Canara Bank/Central Bank of India/ Corporation Bank/Dena Bank/Indian Bank/Indian Overseas Bank/ Punjab National Bank/Syndicate Bank/UCO Bank/ Union Bank of India/United Bank of India/Vijaya Bank/IDBI Bank Ltd./ICICI Bank Ltd. Madam/Dear Sir, Public Provident Fund Scheme, 1968 (PPF, 1968) and Senior Citizens Savings Scheme, 2004 (SCSS, 2004) - Revision of interest rates Please refer to our circular RBI/2011-12/359 dated January 20, 2012 regarding interest rates on small savings schemes, wherein it was indicated that as per Government's decision on revision of interest on small savings schemes, the interest rates on various small savings schemes for every financial year will be notified by the Government before April 01st of that year. 2. The Government of India has now vide their Office Memorandum (OM) No. 6-1/2011-NS.II (Pt.) dated March 25, 2013, advised the rate of interest on various small savings schemes for the financial year 2013-14. Accordingly, the rates of interest on PPF, 1968 and SCSS, 2004 for the financial year 2013-14, effective from April 01, 2013, on the basis of the interest compounding/payment built-in in the schemes, will be as under: Scheme Rate of Interest w.e.f. 01.04.2012 Rate of Interest w.e.f. 01.04.2013 5 year SCSS, 2004 9.3% p.a 9.2% p.a PPF, 1968 8.8% p.a 8.7% p.a 3. The contents of this circular may be brought to the notice of the branches of your bank operating the PPF, 1968 and SCSS, 2004 schemes. These should also be displayed on the notice boards of your branches for information of the PPF, 1968 & SCSS, 2004 subscribers. Yours faithfully (Sangeeta Lalwani) General Manager

Circulars on TP Law

Dear Members,

The CBDT has issued two important Circulars relating to Transfer Pricing law. The first bearing No. 02/2013 dated 26.03.2013 deals with the important issue of when the Profit Split Method can be applied in preference to the TNMM and CUP Methods. The second bearing No. 03/2013 dated26.03.2013 explains the circumstances required to be fulfilled for a development centre engaged in R&D activities to be considered to have "insignificant risk" for purposes of determining the ALP.

Both Circulars are a must-read for all tax professionals engaged in transfer pricing and international tax practice.

Bank Branch Audit Empanelment List-2012-13

Statutory Branch Auditors recommended for appointment in Public Sector Banks – 2012-13

During the year 2012-13, all the 25 PSBs have exercised managerial autonomy in regard to selection and appointment of SBAs. The names of audit firms recommended by these 25 banks and approved by RBI are displayed on the web-site. The information in regard to branches allotted to these audit firms will be published on the web-site, after receipt of the information from the respective banks. Banks have been advised to furnish the information regarding allocation of branches latest by April 30, 2013. While approving names of audit firms, banks have been advised that not more than three branches may be allotted per audit firm and that they should allot branches, to the extent possible, to the audit firms taking into consideration their category and audit experience in such a way that bigger branches are audited by larger/experienced audit firms.

Public Sector Banks – 2012-13

Allahabad Bank Andhra Bank Bank of Baroda Bank of India Bank of Maharashtra Canara Bank Central bank of India Corporation Bank Dena Bank Indian Bank Indian Overseas Bank Oriental bank of Commerce Punjab & Sind Bank Punjab National Bank State Bank of Bikaner & Jaipur State Bank of Hyderabad State Bank of India State Bank of Mysore State Bank of Patiala State Bank of Travancore Syndicate Bank UCO Bank Union Bank of India United Bank of India Vijaya Bank

Internal Circular on ITR Processing

SECTION 143 OF THE INCOME-TAX ACT, 1961 - ASSESSMENT - PROCESSING OF RETURNS FOR A.Ys. 2010-11 & 2011-12 GETTING TIME-BARRED ON 31-3-2013 ON ONLINE TMS IN ITD APPLICATION

AST INSTRUCTION NO.114 [F.NO.AST/DIT(S)-III/INST.NO.114/32/2012-13], DATED 26-3-2013

Kindly refer to the above.

2. Representations from field formations have been received intimating that owing to the delays in PAN Migration, PAN de-duplication and restoration, certain cases remain to be processed. However, AST does not permit these cases to be processed. Therefore, with the Board's approval, the facility of "Online TMS" is extended for the cases time barring on 31-3-2013. The path for the same is AST → TMS → Processing of New Returns (Online TMS).

3. This software is capable of handling the issues relating to PAN transfer/de-duplication/restoration which prevented processing of the returns in AST. The key features of the software are as under :

(a)		The returns can be entered by AO having return of income, although the PAN is lying in some other jurisdiction.
(b)		The returns with PAN out of Jurisdiction, deleted PAN, PAN under de-duplication, PAN under restoration etc. can be processed on this System.
(c)		The AO having return of income can process returns till the command for integration of this data to AST is given by the jurisdictional AO. Once data has been integrated with AST, all future actions can be performed by the AO having PAN jurisdiction.

Therefore, Online TMS is allowed to the following categories:

(i)		PAN under migration
(ii)		PAN is deleted in de-duplication process
(iii)		PAN is under de-duplication or restoration.

4. No processing of any sort will be allowed in respect of invalid PANs or if the PAN is not available or if Name in PAN database does not match with Return name. Due care needs to be taken while accepting such returns. Alternatively, the AO should initiate the communication with Assessee based on the address given in the return for quoting correct PAN and proceed under AST or online TMS, as the case may be. Under no circumstances, processing on standalone except select cases under DGIT(Int.Tax.)/offline TMS is permitted by the Board.

5. The procedure has been enumerated in the user manual available on itaxnet and ITD. The functionality will be available till 31-3-2013. This instruction may be brought to the knowledge of all field officers working in your charge.

For any clarification, ticket may be lodged with Co-desk.

Case Law on Sec 40(a)(ia)

ITO vs. M/s MGB Transport (ITAT Kolkata)

S. 40(a)(ia) TDS: Special Bench verdict binding despite suspension by High Court

The assessee paid dumper hire charges of Rs. 36.37 lakhs and claimed it as a deduction. The AO disallowed the claim u/s 40(a)(ia) on the ground that the assessee had not deducted TDS thereon u/s 194C. Before the Tribunal, the assessee argued that it was not liable to deduct TDS u/s 194C as there was only no "contractual agreement". In the alternative, it was argued that in accordance with the Special Bench judgement in Merilyn Shipping 136 ITD 23 (SB), the disallowance u/s 40(a)(ia) had to be confined to the amounts "payable" as at the end of the year and it did not apply to the amounts already paid during the year. The assessee also argued that though the Andhra Pradesh High Court had granted an "interim suspension" against the said judgement of the Special Bench, it was still binding. HELD by the Tribunal:

The argument that s. 194C does not apply in the absence of a written contractual agreement is not acceptable. Even a verbal contract is sufficient. As regards the judgement of the Special Bench in Merilyn Shipping 136 ITD 23 (SB) where the view was taken that s. 40(a)(ia) can apply only to the amounts remaining payable as at the end of the year and not to the amounts paid during the year, though the Andhra Pradesh High Court has granted "interim suspension" of the said judgement, the said stay/ suspension applies only to the parties to that proceeding and does not destroy the binding effect of the judgement of the Special Bench. There is a difference between "stay of operation" of an order and "quashing of an order". While, in the case of a "quashing", the order of the lower court ceases to exist, in the case of a "stay", the order of the lower court continues to operate and have binding effect. Accordingly, the judgement of the Special Bench in Merilyn Shipping still holds ground and the TDS provisions will apply, for purposes of invocation of s. 40(a)(ia), only on the amounts remaining payable at the end of the year and not on the amounts paid (Shree Chamund Mopeds Ltd. vs. Church of South India Trust Association AIR 1992 SC 1439, 1444 & Pijush Kanti Chowdhury vs. State of West Bengal 2007 (3) CHN 178 followed).

CBDT on Refund- Impact of HC Case

CBDT Directive Regarding Adjustment of Refunds Against Demand

March 21st, 2013

The Directorate of Income-tax (Systems) has issued a letter dated 21.03.2013 drawing attention to the judgement of the Delhi High Court in Court on Its Own Motion vs. CIT where directions were issued that the department has to follow the procedure prescribed in s. 245 before making any adjustment of refund payable by the CPC. As the Court has held that the assessee must be given an opportunity to file a response before any adjustment of refund is made, the Assessing Officers have been directed to comply with the High Court's order and communicate their findings on adjustable demand to the CPC which will then process the refund and adjust the demand.

ROC Relaxation Circular

General Circular No. 07/2013

20.03.2013

Relaxation of additional fees and extension of last date in filing of various forms with the Ministry of Corporate Affairs-reg.

IndianCAs: Illustrative Bank Branch Audit report [1 Attachment]

 

[Attachment(s) from Ashwin Nagar included below]

Please find attached illustrative bank branch audit report and a mail from chairman of A&AS board.

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |

Success is not permanent and failure is not final

 

Dear Members,

This is further to my earlier mails informing you all regarding 2013 Guidance Note on Audit of Banks as also reporting in respect of total number and amounts of debits/ credits pursuant to Memorandum of Changes issued by the bank branch auditors and reporting thereof under the "Other Matters" Paragraph in the bank branch audit report.

In the above context, I wish to draw your attention to the fact that guidance in respect of the aforementioned matter has been included in paragraph 3.44 of Chapter 3, Accounting and Auditing Framework of Part – I of the Guidance Note.  Further, an illustrative format of bank branch audit report (also containing illustrative reporting on the aforementioned aspect of MoCs) has been made part of the Appendices to 2013 Guidance Note on Audit of Banks.  The complete text of the Guidance Note is available on ICAI's website www.icai.org under URL http://220.227.161.86/29410aasb19021.pdf and can be downloaded free of cost from there.  For your ready reference, however, the said illustrative bank branch audit report format is also attached with this mail.

Regards


Chairman, Auditing & Assurance Standards Board

Click here to unsubscribe from future mailings.

__._,_.___

Attachment(s) from Ashwin Nagar

1 of 1 File(s)

Illustrative Bank Branch Audit Format.doc

Reply via web post

Reply to sender

Reply to group

Start a New Topic

Messages in this topic ()

Recent Activity:

Visit Your Group

Note: All messages posted by members including me on this group are sent in their personal capacity. No official position held anywhere by them have nothing to do with this email group. The group does   not accept any responsibility with regards to accuracy or the mistakes in the material circulated on this group. Please confirm from your independent source before using the information or material posted on this group.
*************************************************************************
Further, your attention is invited:

The messages on this group are approved only when the moderator finds it of immense importance to the members at general, otherwise, this group is not used for discussion or as discussion forum.

Switch to: Text-Only, Daily Digest • Unsubscribe • Terms of Use • Send us Feedback

.

__,_._,___

IndianCAs: Guidance Note on Audit of Banks 2013 - Free download

 

Dear members,

You can download 2013 Guidance Note on Audit of Banks (complete text & Appendices) available on ICAI website at URL: 

http://220.227.161.86/29410aasb19021.pdf. 

Though I know bank audit is now for few chosen ones only due to increase in limit. Nevertheless, thanks to institute for this making available.

Lord Shiva-Sec 80G

Lord Shiva and Lord Hanuman are super natural powers and worshipping them isn't a religion; Sec. 80G liberalized

Expenses incurred on worshipping of Lord Shiva, Hanuman, Goddess Durga and on maintenance of temple cannot be regarded as incurred for religious purpose. In the instant case, the assessee-trust filed an application seeking approval under section 80G(5)(vi). The Commissioner took the view that the expenses incurred related to the religious object and since expenditure on religious object exceeded 5% of total income, he rejected application for approval under section 80G(5)(vi). On appeal, the Tribunal held in favour of assessee as under: 1) Lord Shiva, Hanuman, Goddess Durga do not represent any particular religion, they are regarded as super natural powers of the universe; 2) Hindus consist of a number of communities having different Gods who are being worshipped in a different manner, different rituals, and different ethical codes. Even the worship of God is not essential for a person who has adopted Hinduism way of life. Thus, Hinduism holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called as the fundamentals of the Hinduism. Therefore, it cannot be said that Hinduism is a separate community or a separate religion; 3) Technically Hinduism is neither a religion nor a community. Therefore, expenses incurred for worshipping of Lord Shiva, Hanuman, Goddess Durga and for maintenance of temple cannot be regarded to have been incurred for religious purpose. Thus, the Commissioner was not correct, in law, in not allowing the approval to the assessee-trust under section 80G. Accordingly, the order of the Commissioner was to be set aside and the Commissioner was to be directed to grant approval to the assessee-trust under section 80G(5)(vi) - SHIV MANDIR DEVSTTAN PANCH COMMITTEE SANSTAN v. CIT [2012] 27 taxmann.com100 (Nagpur - Trib.)

Final list of candidates winning the elections

Though the counting is still on, for the sub parcels of Bishan Shah, but it looks now only academic exercise. The final list of candidates is as below. My congratulations to all of them.

Rank	Name
1	Purushottam Khandelwal
2	Vikash Jain
3	Aniket Talati
4	Amrish Patel
5	Chintan Patel
6	Satyandra Jha
7	Hiren Shah
8	Hersh Jani