TOPIC 63: QUICK REFERENCE TO “Common but Important Query with answer interpreted by me ”

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Query:-
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The Paid up Capital of ABC pvt ltd is 8 cr. The Company is in the business of Textiles. The Directors are Mr. A and Mr B.
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Mr A approached to Mr B about Appointment of Mr. C as whole - time CS . But as per the opinion of Mr B the Appointment of CS is not mandatory because The Sections related to Key Managerial Personnel are not all applicable to Pvt Co. And Company Secretarty is a Part of KMP as per section 2(51) of Companies Act, 2013. Then Both the Directors approached Mr. XYZ Practising Company Secretarty for the Opinion in line the Legal requirement. They asked following Questions to Mr. XYZ.
1. Whether the Company Should appoint CS in whole time employment ?
2. If yes then, Can Company has to appoint only FCS member of ICSI ?
3. Whether Company can appoint PCS as a Company Secretary of That Company?
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Answers:-
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1. The Company is required to appoint a Whole time CS because the Paid up Capital of the Company is more than ₹ 5 cr. Even though, The Sections related to KMP are not applicable to Private Company then also it's mandatory because Specific provision of Rule 8 A will prevail over Rule 8 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014.
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2. The ACS member of ICSI can also be appointed as CS of the Company.
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3. PCS cannot be appointed as a CS of any Company because he should be in a employment basis anywhere. If PCS surrendered his COP then after that, he can join any Company as a Whole time CS.
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Query:- (Answer to the Common Query for Buy Back of Shares)
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ABC ltd decide to Buy-Back of shares. The Shares are in the physical form. Whether Company is required to Pay Stamp duty for physical Shares?
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Answer:-
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1. No. Company is not required to Pay Stamp duty for Buy-Back of shares as per Indian Stamp Act, 1899.
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2. There is no Registration & Transfer of Shares Involved in the Buy-Back of shares.
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3. Hence, The Company is not required to Pay Stamp duty for Buy-Back of shares.
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Query:-
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How to apply for Compounding for Offence under Companies Act, 2013 (Procedure / Checklist)
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Answer:-
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1. The Board Resolution in the Board meeting as per Section 441 of Companies Act, 2013 is required to be Passed.
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2. The CS or Director or Officer of the Company has to apply for Compounding with ROC within the matter of Jurisdiction.
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3. The Form GNL-1 is required to file with ROC. The attachments are:- # Board Resolution, Affidavit, Cause for delay in letter head of Company , any notice received by Company from ROC.
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4. Fees for making Application is ₹ 1,000.
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5. The ROC forward that form to RD.
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6. The RD may fixed the time for Hearing and then pass the Compounding Order.
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7. The Company has to File that order with ROC in form no. INC-28.
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8. If Default is from the side of Directors or CS or Officer then fees for Compounding shall be paid from their Personal Fund/ Amount.

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Query:- (Answer to the Common Query for Special Resolution)
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Abc ltd is a listed company. It has 3000 members. But 2500 members do not attend the meeting. Company sends notice to all the members. 320 members are abstrain from voting. Then how many members should have vote in favour of resolution, if it is to be passed as a Special Resolution?? Whether answer would be different it it's a unlisted public company??
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Answer:-
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1. 75% Votes should be cast in favor of resolution by members who are present and entitled to vote in person. ( Assuming it is ballot method ).
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2. In the above case, Only 500 members have attended the meeting. And 320 are restrain from voting. And only 180 people have votes for the resolution ( 500 -320 =180 ).
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3. Hence, 75% of 180 i.e. 135 members should vote in favour of resolution if it's a Special Resolution.
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4. Answer would be same even if it's a unlisted public company..


Regards
ACA SOURAV BAGARIA