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Roc matters

Milan Agrawal (Chartered Accountant) (207 Points)

09 January 2013

Dear All,

Kindly help me regarding the correct dates in case of various secretrial compliances of one of my client's company(Public Limited Company) incorporated on 04.07.2011.

Sending of Consent & eligibility letter by new auditor to company - 15.11.2012

Date of Notice of AGM - 22.11.2012

Date of AGM - 21.12.2012

Intimation to Auditor for appointment - 24.12.2012

New Auditor's communication with previous auditor - 26.12.2012

Kindly look at the dates mentioned above & guide me whether these are ok. If not, kindly correct me.

In this case, there is change of auditor in AGM. I read the Companies Act provision which states that in such case, Special Notice is required but my seniors are saying that Special notice will be required in other circumstances where auditors are removed by the company before the expiry of tenure etc. However, in my case, simply the First Auditor appointed in the Board Meeting is retiring & new Auditor is being appointed.

Kindly give ur valuable replies in these context.

Regards,

CA Milan Agrawal

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5 Replies

shristi (executive) (96 Points)
Replied 09 January 2013

All the dates mentioned above seem ok. The only thing which is to kept in mind is that the consent of auditor is to be received within 30 days of them receiving intimation of their appointment by the Board. Since you have not mentioned the date of Board Meeting that cannot be confirmed.

umesh joshi (trainee) (63 Points)
Replied 10 January 2013

Dear,

Kindly see sec. 225 (1) of Co. Act 1956

Special Notice Shall be Required for a resolution at an general meeting (here the meaning of General meeting is Annual general meeting ) appointing as a auditor a person other than retiring auditor or retiring auditor shall not be re- appointed.

for the Provision of Special Notice Kindly seeThe Sec. 190

The Special Notice is to be Recieved 14 Days before the Date of Meeting to the Company and the Shall Send Special Notice alongwith Resolution intend to move at Meeting to Auditor and Members 7 Days before the Date of Meeting.

Milan Agrawal (Chartered Accountant) (207 Points)
Replied 10 January 2013

Dear Umesh,

I read the provisions explained by you and understood in the correct sense, but my seniors are still saying that in this case, special notice will not be required. Being very much junior, I cant argue as they are highly experienced persons but still i am unable to get their point.

Regards,

CA Milan Agrawal

CA Harish Negi (Never Say Die) (860 Points)
Replied 20 February 2013

APPOINTMENT OF AN AUDITOR OTHER THAN THE RETIRING ONE

The Company must receive a Special Notice from a member/shareholder not less than 14 days before the ensuing A.G.M. indicating his intention to move a resolution for changing the existing Auditor of the Company and for appointing another Auditor in his place.
The Company must send forthwith a copy of such notice to the existing auditor of the Company.
A certificate in writing should be obtained from the proposed new Auditor to the effect that his appointment, if made, will be in accordance with the limits as specified in Sec. 224(1B).
The Company must issue notice in writing at least 21 days before the date of A.G.M. stating about the Special Notice received and proposing the ordinary resolution for change of the Auditor along with Explanatory statement.
The retiring Auditor has a right to make representation either in writing to the Company or orally at the A.G.M. If the representation is received from the Auditor the same should be enclosed along with notice. If the representation could not be sent along with the notice for being received late, it should be sent later at any time, being reasonable time, but before the A.G.M.
In case it is not possible to send special notice and representation in the notices of the A.G.M., then the Company should inform the shareholders by advertisement in newspaper having appropriate circulation or by any other mode as allowed by the Articles of Association not less than 7 days before such A.G.M.
However, if a copy of such representation by the retiring auditor is not possible to be sent as aforesaid, because they were received too late or because of the default of the Company, such written representation shall be read out at the meeting. This is without prejudice to the right of the Auditor to be heard orally in the A.G.M. But in certain circumstances the Company Law Board can exempt the Company from sending or reading out such representation of the retiring Auditor on the application either of the Company or of any of the persons, who claims to be aggrieved.
Three copies of such notices to be forwarded to the Stock Exchange, where such shares of the Company are listed.
The Company should then hold a General Meeting and pass a Resolution.
Only after such Resolution is passed in the A.G.M. the new Auditor shall be considered as duly appointed in place of the Retiring Auditor.
The new Auditor should inform the concerned Registrar of Companies in Form No. 23B about his accepting the appointment within one month from the receipt of Intimation of his appointment from the Company.

GOOD LUCK

CS Ankur Srivastava (Company Secretary & Compliance Officer) (17848 Points)
Replied 21 February 2013

Everything is ok... However, special notice will be required

Under section 225 Special Notice shall be required for a resolution at an Annual General Meeting appointing as auditor a person other than a retiring auditor or providing expressly that a retiring auditor shall not be reappointed.

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