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Home/Questions/Page 5

Taxchopal Latest Questions

Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

What is the requirement as to the minimum and maximum number of directors in an OPC ?

  1. CA Vishnu Ram Enlightened
    Added an answer on April 4, 2022 at 11:26 am

    Hi, Please refer to section 149(1) of the Company Act,2013, according to which: A One Person Company needs to have a Board of Directors consisting of individuals as directors and shall have a minimum of one director. It can have directors up to a maximum of 15 which can also be increased by passingRead more

    Hi,

    Please refer to section 149(1) of the Company Act,2013, according to which:

    A One Person Company needs to have a Board of Directors consisting of individuals as directors and shall have a minimum of one director. It can have directors up to a
    maximum of 15 which can also be increased by passing a special resolution as in case of any other company.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Is section 135 relating to Corporate Social Responsibility applicable to OPCs?

  1. CA Vishnu Ram Enlightened
    Added an answer on April 4, 2022 at 11:30 am

    Hi, Section 135 of Companies Act is applicable to every company  which is having : • net worth of Rs 500 crore or more; or • turnover of Rs 1000 crore or more; or • a net profit of Rs 5 crore or more during any of the three preceding financial years. The word used here is ’every company’, However, iRead more

    Hi,

    Section 135 of Companies Act is applicable to every company  which is having :
    • net worth of Rs 500 crore or more; or
    • turnover of Rs 1000 crore or more; or
    • a net profit of Rs 5 crore or more
    during any of the three preceding financial years.

    The word used here is ’every company’, However, in terms of rule 6(2) of companies (Incorporation) Rules, 2014, an OPC loses its status if paid-up capital exceeds Rs. 50 lakhs or average annual turnover is more than 2 crores in three immediate preceding consecutive years.

    In view of this, it is quite clear that an OPC would not meet the criteria specified in section 135 as detailed above.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Can a company form a One Person Company (OPC) as its subsidiary?

  1. CA Vishnu Ram Enlightened
    Added an answer on April 4, 2022 at 11:32 am

    Please refer the rule 3 of the Companies (Incorporation) Rules, 2014, which provides that only a natural person who is an Indian citizen and resident in India is eligible to incorporate OPC. Therefore, the question of any “body corporate” or other organizations can not constitute a One person companRead more

    Please refer the rule 3 of the Companies (Incorporation) Rules, 2014, which provides that only a natural person who is an Indian citizen and resident in
    India is eligible to incorporate OPC. Therefore, the question of
    any “body corporate” or other organizations can not constitute a One person company. Naturally, they are not a natural person.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

What is the difference between advance and loan?

  1. CA Vishnu Ram Enlightened
    Added an answer on April 4, 2022 at 11:44 am

    Following are the differences between advances and loans. A Loan is a financial assistance given with an absolute promise to repay, whereas an advance is given against the supply of goods and services. Generally, Loan carries a rate of Interest against the financial assistance whereas an Advance doeRead more

    Following are the differences between advances and loans.

    A Loan is a financial assistance given with an absolute promise to repay, whereas an advance is given against the supply of goods and services.

    Generally, Loan carries a rate of Interest against the financial assistance whereas an Advance does not carry such a rate of interest.

    A loan can be for a long-term period whereas an advance is given for a short-term period and against work or project.

    A loan is always repaid, whereas an advance is adjusted with the outstanding bill amount.

    Example-Advance given to employees against the current month’s salary. A loan is given to employee for buying a Car.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

In terms of provision of section 203 of Companies Act, 2013, whether an individual can be appointed as CFO as well as company secretary of a company?

  1. CA Manish Kumar Gupta Enlightened
    Added an answer on April 19, 2022 at 7:05 pm

    Hi, It's a very interesting question and  I was waiting for it. Lots of companies are appointing a CFO cum Company secretary to save costs. Following provision will help to understand the context of the question: As per section 203, prescribed class of companies shall have the following whole-time kRead more

    Hi,

    It’s a very interesting question and  I was waiting for it. Lots of companies are appointing a CFO cum Company secretary to save costs. Following provision will help to understand the context of the question:

    As per section 203, prescribed class of companies shall have the following whole-time key managerial personnel
    (i) managing director, or Chief Executive Officer or manager and in their absence, a whole-time director;
    (ii) company secretary; and
    (iii) Chief Financial Officer
    Here, the term used is ‘whole-time’ and therefore, three different individuals are required to hold these three key positions.
    Further, as per Regulation 78 of Table F,

    ‘a provision of the Act or these regulations requiring or authorizing a thing to be done by or to a director and chief executive officer, manager, company secretary or chief financial officer shall not be satisfied by its being done by or to the same person acting both as director and as, or in place of, chief executive officer, manager, company secretary or chief financial officer’.

    Hence, with the above provision of the act, it is crystal clear that a CFO can not be appointed as company secretary of the company.

     

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

What is the meaning of related party?

  1. CA Manish Kumar Gupta Enlightened
    Added an answer on April 25, 2022 at 5:41 pm

    Hi, As per Section 2(76) read with Rule 3 of the Companies (Specification of definitions, details) Rules, 2014 of the Act, Related party with reference to a company means: 1. A director or key managerial personnel or relative thereof; 2. A firm, in which a director, manager, or his relative is a parRead more

    Hi,

    As per Section 2(76) read with Rule 3 of the Companies (Specification of definitions, details) Rules, 2014 of the Act, Related party with reference to a company means:

    1. A director or key managerial personnel or relative thereof;

    2. A firm, in which a director, manager, or his relative is a partner;

    3. A private company in which a director or manager or his relative is a member or director;

    4. A public company in which a director or manager is a director AND holds along with his relatives, more than two percent of its paid-up share capital;

    5. Any Body Corporate whose Board of Directors, managing director, or manager is accustomed to act in accordance with the advice, directions or instructions of a director or manager.

    (b) Any person on whose advice, directions, or instructions a director or manager is accustomed to act.
    Note: nothing contained in clauses (a) and (b)  shall apply to the advice, directions or instructions given in a professional capacity.

    6. Holding, subsidiary, or an associate company of such a company.

    7. Subsidiary of a holding company to which it is also a subsidiary.

    8. Investing company or the venturer of the company.

    Explanation—” investing company or the venturer of a company” means a body corporate whose investment in the company would result in the company becoming an associate company of the body corporate

    Note: Term relative in relation to a person means and includes Father, Mother, Son, Son’s wife, Daughter, Daughter’s husband, Brother, Sister, members of a HUF, Husband and wife

    Thanks

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Whether provisions related to the Managerial Remuneration are applicable on all KMPs?

  1. CA Sanjiv Kumar Enlightened Chartered Accountant
    Added an answer on May 22, 2022 at 7:56 pm

    Section 197 of the companies Act prescribes certain limits and compliance on the remunerations of directors, including the Managing Director, Whole Time Director, and manager. Schedule V provides conditions with regard to appointment and remuneration of Managing director, whole-time Director and manRead more

    Section 197 of the companies Act prescribes certain limits and compliance on the remunerations of directors, including the Managing Director, Whole Time Director, and manager. Schedule V provides conditions with regard to
    appointment and remuneration of Managing director, whole-time
    Director and manager.

    In view of the above, the provisions related to the managerial remuneration are not applicable to all KMPs but they are applicable only to such managerial personnel as mentioned in Section 197 and  Schedule V to the Companies Act, 2013. Therefore, CS and CFO not being managerial personnel as mentioned in Section
    197, hence, the provisions of Section 197 will not apply on them.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Can a person be Managing Director in two companies?

  1. CA Sanjiv Kumar Enlightened Chartered Accountant
    Added an answer on May 22, 2022 at 7:59 pm

    Yes, a person can be a Managing Director in two companies. As per the third proviso to section 203(3) of the Companies Act, 2013, a company may appoint or employ a person as its MD, if he is the MD or Manager of one and not more than one other company with the consent of all directors present at theRead more

    Yes, a person can be a Managing Director in two companies.

    As per the third proviso to section 203(3) of the Companies Act, 2013, a company may appoint or employ a person as its MD, if he is the MD or Manager of one and not more than one other company with the consent of all directors present at the meeting.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Can the KMP of holding company be appointed in only one subsidiary or in all subsidiaries of holding company at the same time?

  1. CA Sanjiv Kumar Enlightened Chartered Accountant
    Added an answer on May 22, 2022 at 8:27 pm

    In my view, he can be appointed only in one subsidiary company although It's not clear anywhere in the act, but if we see the provision of section 203 (3) of the Companies Act, 2013, which says that a Wholetime KMP of a company shall not hold office in more than one company except in its subsidiaryRead more

    In my view, he can be appointed only in one subsidiary company although It’s not clear anywhere in the act, but if we see the provision of section 203 (3) of the Companies Act, 2013, which says that a Wholetime KMP of a company shall not hold office in more than one company except in its subsidiary company.

    This section strictly restricts a person from holding office in more than one company, while at the same time enables a person to hold office in its subsidiary company, and ideally, he may be appointed in only one subsidiary.

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Ramesh Sharma
Ramesh SharmaEnlightened
Asked: March 31, 2022In: Corporate Laws

Is it mandatory to file the return of appointment of KMPs appointed in terms of Section 203?

  1. CA Sanjiv Kumar Enlightened Chartered Accountant
    Added an answer on May 22, 2022 at 8:41 pm

    KMPS means a managing director, a whole time director or manager, a chief executive officer, a company secretary, and a Chief Financial officer. It is mandatory for a company to file a return of appointment of a managing director, whole time director or manager, chief executive officer, company secrRead more

    KMPS means a managing director, a whole time director or manager, a chief executive officer, a company secretary, and a Chief Financial officer.

    It is mandatory for a company to file a return of appointment of a managing director, whole time director or manager, chief executive officer, company secretary and Chief Financial officer in Form no. MR.1 as prescribed in Rule 3 of the Companies
    (Appointment and Remuneration of Managerial Personnel) Rules, 2014.
    Further, particulars of appointment of KMP and any change among them are also required to be filed in Form DIR-12.

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