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Secretarial Audit

Secretarial Audit

The Secretarial Audit (SA) is a part of Legal compliance reporting system. The section 383 A(1) prescribes that, every company which is not required to employ a whole time secretary and has a paid up share capital of Rs 10 lakhs or more shall file with the ROC a certificate from a secretary in whole time practice. The Compliance Certificate was made mandatory the Companies (Amendment) Act, 2000, w.e.f. 13-12-2000, which inserted a provision in section 383A(1) of the Companies Act making it mandatory every company not required to employ a whole-time secretary under sub-section (1) and having a paid-up share capital of Rs. 10 lakhs or more shall file with the Registrar a certificate from a secretary in whole-time practice in such form and within such time and subject to such conditions as may be prescribed, as to whether the company has complied with all provisions of this Act and a copy of such certificate shall be attached with Board’s report referred to in section 217. But before issuing such certificate a company secretary has to audit the relevant documents of the company to conclude about the position of the company. The scope, content and criteria of the audit and of the compliance certificate is framed by the central government and the rules and regulations are made in this regard. The Central government has framed Companies (Compliance Certificate) Rules, 2001 in this regard which prescribe a 33-item formula for Compliance Certificate. The secretarial Audit is always in the better interest of every corporate management as, an independent professional will certify that the company has carried out the compliances under the Act. This will also serve the larger interest of the shareholders, creditors and employees. The secretarial audit also help the department of company affairs and the office of the registrar, as the documents filed by the small and medium companies covered by this provision will ensure proper compliance. This will even help in reducing the work of the inspection department. The following are the benefits of the secretarial audit:

• The Secretarial Audit can be an effective due diligence exercise for the prospective acquirer of a company or controlling interest or a joint venture partner.
• It assures the owners that management and affairs of the company are being conducted in accordance with requirements of laws, and that the owners stake is not being exposed to undue risk.
• Ensures the Management of a company that those who are charged with the duty and responsibility of compliance with the requirements of law are performing their duties competently, effectively and efficiently, so that the people in-charge of the day-to-day management of the company are not likely to be exposed to penal or other liability (and consequential risk and embarrassment) on account of non-compliance with law.
• Ensures them that they have done everything required under law.
• Ensures them that the company has complied with the laws and, therefore, they are not likely to be exposed to action by law enforcement agencies for non-compliance by the company.
• The secretarial audit being pro-active measure for compliance with a plethora of laws, it will have a salutary effect of substantially lessening the burden of the law-enforcement authorities.
• The secretarial audit can assist bodies like SEBI, Stock Exchanges, Financial Institutions, Banks, etc. to gauge or measure the levels of compliance and non-compliance by the companies with whom they are concerned.
• To provide comfort to investors that the company has been conducting its affairs in accordance with laws and, therefore, their investment is safe and being taken due care of. SA will help unearth and check these practices and also enable law-enforcing agencies take timely corrective action by brining to book the guilty. In the era of Corporate Governance, SA will provide comfort to shareholders about the compliance as also to feel secure about their investments.

Secretarial Audit Process - Steps:

• Prepare checklists for verification of records
• Prepare a list of documents to be checked.
• Draw up a timetable.
• Know the people to interact with.
• Depute the persons to do checking.
• Commence the Secretarial Audit process.
• Review progress at suitable intervals depending upon coverage.
• Complete the Secretarial Audit.
• Make a draft Secretarial Audit Report.
• Discuss non-compliances or inadequate compliances for corrective action, eg non-filing and late filing of forms.
• Discuss substantive issues, e.g. whether Board composition is as per cl 49 of Listing Agreement; whether Takeover Code applies to the acquisition of shares.
• Make final Secretarial Audit Report. The reporting is done on quarterly basis (for a sample quarterly report.
• Checklist for Conducting Secretarial Audit:
Status of the company- Private Limited
• Check whether the company has minimum paid up capital of Rs.1 lakh or such higher paid-up capital as may be prescribed.
• If the private company is the subsidiary of a public limited company check whether the company has a minimum paid up capital of 5 lakh rupees or such higher paid up capital, as may be prescribed. In case of existing public limited company, check that it has enhanced its paid up capital to five lakh rupees within two years from the commencement of the Companies (Amendment) ACt,2000 i.e. 13.12.2000.
• Check whether the company’s name in the memorandum is in accordance with the Name as stated on the Certificate of Incorporation.
• The company’s articles of association contain the requirements stipulated in s. 3(1) (iii) to constitute the company as a private company.
• Check whether the provision of the memorandum was altered with respect to situation of the company's registered office from one State to another during the year, If so, check whether:
• The company has passed a special resolution and filed From No.23 with the ROC;
• The Company Law Board confirmed the alteration;
• The order of the Company Law Board had been Filed with the ROC (both the States) in From No.21 within three months from the date of the order along with printed copy of the Memorandum duly altered;
• Whether the notice to stock exchange has been sent or not.
• Check the extent of applicability of Table A of Schedule I of the Act.
• Check whether the articles were altered during the year. If so, check whether :
• Copy of the special resolution was filed with the Registrar in Form No.23
• The change had been incorporated in all copies of the articles;
• If the alteration had the effect of converting a public company into a private company, whether:
• Approval of the Registrar of Companies was obtained and a printed copy of the articles as altered was filed with the Registrar within one month of the date of the receipt of the order of approval; and In case shares of the company were listed on a recognised Stock Exchange, the resolution was passed through postal ballot process;
• The alteration has been notified to the stock exchange in case the shares are listed
• Check whether during the financial year the company gave a loan to any directors of the director of the lending company, any partner of a director of the lending company; any relative of a director of the lending company; any firm in which a director of the lending company is a partner; any private company of which a director of the lending company is a member; any body corporate, the Board of Directors, managing director or manager whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.
• Check whether the loan is being recovered in accordance with the terms and conditions stipulated and if there is default, the company took effective steps to recover the loan.
• Check whether during the relevant financial year, the company entered into any contract, whether a formal or informal, written or oral- for the sale, purchase or supply of any goods or materials, for the sale, purchase or supply of any services, for underwriting the subscription of any shares in, or debentures of, the company with any director of the company, any relative of any director of the company, any partnership firm in which any director of the company is a partner or any other related party

Documents to be Checked While Doing Secretarial Audit

The following documents are required to be checked:

• Memorandum of association
• Articles of association
• Certificate of Incorporation
• Latest audited balance sheet
• Ledger (Share Capital Account)
• Register of Members.
• Return/s of Allotment.
• Names depositors, if any.
• Minutes of the Board meetings.
• Copy of the application which was made to the Department of Company Affairs for its approval for giving the loan.
• Copy of the DCA’s letter giving approval for giving the loan.
• Loan agreement or sanction letter.
• If the loan is secured one, the documents creating the security.
• Ledger (to verify recovery of the loan).
• Register of Contracts, Companies and Firms in which Directors are interested
• Notices of disclosure of directors interests in Form No. 24AA as well as specific notices received from time to time from the directors and recorded in the minutes of Board meetings.
• Minutes of Board meetings.
• Copies of contracts made between the company and any of the related parties

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