Companies Act 2013 has brought away majority of the exemptions given by Companies Act 1956.
So on the one hand Govt.is trying to encourage new businesses and trying to get inflow of capital into the business and on the other hand keeping the harsh provisions for Pvt Ltd Co.
Later on, Govt has realized that both can not walk on a parallel road.
So, a new set of exemptions been provided as listed below.
So on the one hand Govt.is trying to encourage new businesses and trying to get inflow of capital into the business and on the other hand keeping the harsh provisions for Pvt Ltd Co.
Later on, Govt has realized that both can not walk on a parallel road.
So, a new set of exemptions been provided as listed below.
|
Sr. No.
|
Chapter/ Section of the Act
|
Particular
|
Exemption
Provided in MCA Notification
|
|
A.
|
Chapter
1, Sub-clause (viii) of clause (76) of section 2.
|
Bare
Act Language of Section:“related party”, with reference to a company, means-
any company which is—
(A)
a holding, subsidiary or an associate company of such
company;
or
(B)
a subsidiary of a holding company to
|
Holding,
Subsidiary and Associate Company will not cover under Related Party for the
purpose of section 188.
Note:-
Although
Holding company is excluded but Director (other than independent Director),
KMP of holding company or their relative are still included
in definition of Related Party. (Section 2(76)(ix))
Language
of Notification:
Shall
not apply with respect to section 188.
|
|
B.
|
Chapter
IV, Section 43 and Section 47
|
Section
43- Kind of Capital
Section
– 47 Voting Right
|
If
anything else mentioned in MOA & AOA then MOA & AOA
prevail over the section 43 and 47.
Language
of Notification:
Shall
not apply where MOA & AOA of the Private Company so
provides.
|
|
C.
|
Chapter
IV, Section 62(1)(a)(i) and (2)
|
Bare
Act Language Earlier:
The
offer of Right issue of shares shall be open for minimum 15 days not
exceeding 30 days from the date of the offer within which offer made.
|
In
case 90%, of the members of a private
company have given their consents in writing or in
electronic mode then Offer Can Be Close Before 15 Days.
Note:-
The
time limits cannot be increased, they can only be reduced.
Language
of Notification given at the end (S. No. 1)
|
|
D.
|
Chapter
IV, Section 62(1)(b):
Further
Issue of Share Capital
|
For
ESOP Special Resolution Required.
|
Now
for ESOP Ordinary Resolution is enough.
Language
of Notification
The
words “special resolution”, the words “ordinary resolution” shall be
substituted.
|
|
E.
|
Chapter
IV- Section 67
|
Restrictions
on purchase by company or giving of loans by it for purchase of its shares.
|
Language
of Notification given at the end (S. No. 2)
|
|
F.
|
Chapter
V- Section-73(2) (a) (e):
|
Earlier Private
Limited Company can accept deposits from the Member after follow up the
procedure mention under Section 73.
|
Acceptance
Of Deposits From Members Made Easier For Certain Companies
Private
Limited Company can accept deposit from the Members upto 100%of aggregate
of the paid up share capital and free reserves without followings:
·
Issue Circular
·
File circular with ROC
·
Maintain deposit repayment reserve
·
Provide deposit insurance
Language
of Notification is given at the end (Point no. 3)
|
|
G.
|
Chapter
VII
|
·
101- Notice of meeting.
·
102- Statement to be annexed to notice.
·
103- Section Quorum for meetings.
·
104- Chairman of meetings. 105- Proxies.
·
106- Restriction on voting rights.
·
107- Voting by show of hands.
·
109- Demand for poll.
|
If
anything else mentioned in AOA then AOA prevail over the section
101-107 & 109.
Articles
of A Private Company May Override Provisions Pertaining To
1.
Content & Length of Notice
2.
Explanatory Statement
3.
Quorum
4.
Chairman
5.
Proxies
6.
Restriction on Voting Rights
7.
Show of Hands & Poll
Language
of Notification is given at the end (Point no. 4)
|
|
H.
|
Chapter
VII- Section:117 (3)(g)
|
Earlier
Provision:
Copy
of Resolution passed in pursuance of sub-section (3) of Section 179 required
to filing with ROC.
|
Now
there is NO NEED TO FILE FORM MGT-14 for the
purposes of resolutions passed u/s 179(3) read with rule 8 of Companies (Meeting of Board & its power) Rules, 2014
Language
of Notification
Provisions
of Section 117(3)(g) will not apply on Private Limited Company.
|
|
I.
|
Chapter
X- Section 141 (3)(g):
|
Earlier Auditor
can’t be appoint as auditor in more than 20 (Twenty)
Companies.
|
Now
under the limit of 20 (Twenty) Companies following will not include:
·
one person companies,
·
dormant companies,
·
small companies, and
·
Private Companies having paid-up share capital
less than one hundred crore rupees”.
Limit
of 20 Companies only Includes:-
1.
Public Companies
2.
Private Companies having paid up capital of Rs. 100 Crore or more
|
|
J.
|
Chapter
XI- Section 160-
|
Candidature
Not Required For Appointment of Director at General Meeting
|
Now
there is no need to deposit Rs. 100,000/- by the Director at the time of
appointment.
|
|
K.
|
Chapter
XI- Section 162-
|
Appointment
of directors Need not to be voted individually.
|
Now
more than one director can be appoint via a single resolution.
|
|
L.
|
Chapter
XII- Section 180-
|
Restrictions
on powers of Board Not Apply
|
Now
there is no need to pass “Special Resolution” for
the purposes of passing of Resolution mentioned under Section 180.
Example:
1. Borrow
exceeding paid up capital & free reserves.
2. Sell/lease/dispose
off undertaking
|
|
M.
|
Chapter
XII- Section 184(2)
|
Disclosure
of interest by director.
|
Now Interested
directors can participate in the meeting and vote in the
meeting after disclosure of his interest.
Note:-
He
Cannot be counted in Quorum (Section 174(3) explanation)
|
|
N.
|
Chapter
XII- Section 185-
|
Loan to
Director was earlier not allowed.
|
Loan
to director are allowed for Private Limited Companies if its
fulfill the below mentioned conditions:
1.
Body Corporate should not be Shareholder
2. Not
borrowed money from Bank/ Financial Institution/ Body Corporate
exceeding lower of the following:-
i.
Twice its Paid up capital
ii.
Rs. 50 crore
3. No
repayment default subsisting of such borrowings at time of giving loan
Note:
Giving
of loans/ guarantee/security to Group Companies now possible.
Language
of Notification is given at the end (Point no. 5)
|
|
O.
|
Chapter
XII- second proviso to section 188 (1):
|
Bare
Act Language Earlier:
No
member of the company shall vote on such Resolutions, to approve any contract
or arrangement which may be entered into by the Company, if such member is
related party.
|
Restriction
On Voting Right In General Meeting In Case Of Related Party Transaction Not
Applicable:Now This proviso will not apply on Private Limited Company.“Even
if, Member is related then also he can vote on such resolution required to be
pass u/s 188 in GM.
|
|
P.
|
Chapter
XIII-section 196(4) & (5):
|
Appointment
of MD, WTD & Manager.
|
Now
there is no need to Pass Resolution in General Meeting for appointment of
Managerial Personnel and no need to file form MR-1.
Managerial
Personnel can be appoint in Private limited Company without following:
1. Shareholder’s
Ratification in not required.
2. Schedule
V not applicable.
3. MR-1
not required to be filed
4. T&C
of appointment, remuneration not mandatory to
be mentioned in resolution
|
|
S.
N.
|
LANGUAGE
OF NOTIFICATION
|
|
1.
|
Chapter
IV, sub-clause (i) of clause (a) of sub-section (1) and sub-section (2) of
section 62.Shall apply with following modifications:-In clause (a), in
sub-clause (i), the following proviso shall be inserted,
namely:-Provided that notwithstanding anything
contained in this sub- clause and sub-section (2) of this section, in case
90% , of the members of a
private company have given their
consents in writing or in electronic mode, the periods lesser than
those specified in the said sub- ¬clause or sub-section shall apply.
|
|
2.
|
Chapter
IV, section 67.Shall not apply to private companies -I. in
whose share capital another body corporate has invested any
money;II. if the borrowings of such a company from banks or
financial institutions or any body corporate is less than twice its paid up
share capital or fifty crore rupees, whichever is lower; andIII.
such a company is not in default in repayment of such borrowings subsisting
at the time of making transactions under this section.
|
|
3.
|
Chapter
V, clauses (a) to (e) of subsection (2) of section 73.Prohibition Shall
not apply to a private company which accepts from its members monies not
exceeding one hundred per cent, of aggregate of the paid up share capital and
free reserves, and such company shall file the details of monies so accepted
to the Registrar in such manner as may be specified.
|
|
4.
|
Chapter
VII, sections 101 to 107 and section 109.Shall apply
unless otherwise specified in respective sections or the
articles of the company Provide
otherwise.
|
|
5.
|
Chapter
XII, section 185 Provisions of Section 185 not apply to a
private company if its fulfill the following below mention conditions-
(a) in whose share capital another body corporate has invested any money; (b) if the borrowings of such a company from banks or financial institutions or anybody corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is lower; and(c) such a company has no default in repayment of such borrowings subsisting at the time of making transactions under this section. |
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