COMPANIES ACT 2013 Vs COMPANIES ACT 1956 - Bangaloreicai

private company in the articlesTo restrict the maximum number ofmembers to 200S. OnepersonConcept of One Person Company hasCompanybeen introduced and the OPC can beformed as private limited companyPrivileges Providedto OPCs The financial statement may notinclude the cash flow statement[Proviso to Clause 2(40)] The annual return to be signedby the company secretary, orwhere there is no companysecretary, by the director of thecompany. No requirement of holding anAGM [Clause 96(1)] Inapplicability of the provisionsof Section 98 and Sections 100 to111 (both inclusive) [Clause122(1)] Minimum number of directors:1 [Clause 149(1)] Board Meetings- Minimum 1 ineach half of a calendar year andthe Gap between the twomeetings shall not be less than90 days. Not applicable wherethere is only one Director.Clause 173 (5) Quorum for Board Meetings notapplicable where there is only 1director in OPC. (Clause 174)II.IncorporationIncorporationof Certificate of Incorporation to be Action can be taken even aftercompanyconclusive evidenceincorporation, if incorporation is on thebasis of false or incorrect incorporation.Thus the certificate is not treated asconclusive evidenceCompanies that can Public Limited , private Limited List includes One person company as abe formedcompanies,Section25 private companycompanies,GovernmentcompaniesReservation of new Procedural aspects not covered.On payment of prescribed fees to ROCname-proceduraland by an application the new name/aspectschange of name can be reserved.Memorandumof MoA should have Clauses such MoA not to have other objects, otherAssociationas Name, state, main objects, things remains the sameotherobjects,subscriptionclauseFormats of AoA Table – B – Company limited Table –F- company limited by sharesby shares Table – G- company limited byguarantee and having share capital Table – C – Company limitedby guarantee and not having Table – H- Company limited byshare capitalguarantee and not having share capital Table – D- company limited Table – I – Unlimited company havingR. Private CompanyRestricts the maximumnumber of members to 50No provision exists.3734(4), 4(5)4(1)

Formationofcompanieswithcharitable objectsCommencementBusinessofby guarantee and havingshare capital Table – E- Unlimited companySection 25 Company. Did notspecifically provide for entprotection. Could be only byway of a public or privatecompany.Max. action that can be taken byCentral Government (CG) wasrevocation of license and thattoo only for violation of anyterms of the license.Applicable only to PublicCompanies. If not complied, nopowers to the ROC to initiateaction for the removal of thename of the Company from theRegister of CompaniesEntrenchmentprovision in articlesNo such provisions existed.Name change duringthe last two yearsNo such provision existed.New restrictions onalteration of objectsclausewherecompany has anyunutilised proceedsfrom public issueObjectsclausealterationrequired only special resolutionof members and filing of Form23 with the ROC.Change of promotersNo such provision existed.Applicability ofcertain provisions toOPC-clauseNot applicableshare capital Table – J- Unlimited company nothaving share capitalSpecifically provides for all these words.Could be as a OPC or an Association ofPersons(AOP).Actionbesidesrevocation can be direction for windingup of the Company or amalgamationwith another company registered withsame objects.Provides for additional grounds forrevocation like affairs being conductedfraudulently or prejudicial to publicinterest.Applicable to both Public and Private –ROC is empowered to remove the nameof the company from the register ofcompanies if declaration is not filedwithin 180days from the date ofincorporation of the company and ROChas reasonable cause to believe that thecompany is not carrying on anybusiness.Articles may provide for more stringentor restrictive procedure than passing ofspecial resolution for altering the certainprovisions of AoA ( a provision can bealtered only if agreed by all themembers of the company in writing)Every company should have its formername printed or affixed outside itsoffice, in its letter head, etc during lasttwo yearsIt is not necessary to have a registeredoffice at the time of incorporation, but itshall have at all times a registered officefrom the 15th day of incorporationIt cannot alter its clause unless it passesa special resolution and the details asmay be prescribed , of the notice, shallbe published in two newspapers andshall also be placed on the company’swebsite of the company;Dissenting shareholder shall be givenexit opportunity in accordance withSEBI regulations.Company has to file a return with theROC in case of changes in promoters ortop ten shareholders of the companywithin 15 days of such change Power to call meetings of members, calling for EOGM, notice of meeting, statement to be annexed to notice, quorum for meetings, chairman for meetings,811512139398100101102103104

Contract by OPCConversion of LLPsintoCompaniesCompaniesincorporated outsideIndiaNo OPC concept existedNot permitted under the presentregime proxies, restriction on voting rights, voting by show of hands, voting through electronic means, demand for poll, postal ballot, circulation of member’s resolutionWhere OPC limited by shares or byguarantee enters into a contract with itssole member, who is also a Director; thecompany should preferably enter into awritten contract.If not the above, the OPC will have torecord the contract in the board minutesbook and file a return with the ROCwithin 15 days of the date of approvalby the BOD, with prescribed fees.Provides for conversion of LLPs intocompanies E-governanceNo such provisionVigil MechanismNo provision exists.Women DirectorIII.No such provision existedResident DirectorsNo such provision existedService of documents on foreigncompany now can be servedthrough any electronic mode. The foreign offices are alsorequired to comply with theprovisions of winding up.Maintenance and allowing inspection ofdocuments by companies in electronicform177(9)- Every listed company or suchclass or classes of companies, as may beprescribed, shall establish a vigilmechanism for directors and employeesto report genuine concerns in suchmanner as may be prescribed.177(10)- The vigil mechanism undersub-section (9) shall provide foradequate safeguards againstvictimisation of persons who use suchmechanism and make provision fordirect access to the chairperson of theAudit Committee in appropriate orexceptional cases.DirectorsIn prescribed class or classes ofcompanies there should be 1 womendirectorEvery company shall have at least oneDirector who has stayed in India for atotal period of not less than 182 days inthe previous calendar year.Panel of ID’s to be maintained by abody/institute notified by the CGfacilitating appointment of (10)149(1)149(1)150

Directors.Independent directorsNo such provision existedMaximum number ofDirectorsSection 259 provided formax. 12 and beyond 12required prior Central Govt.ApprovalSection 257 provides thatsuch a person has todeposit Rs. 500 whichwould be refunded in casehe is appointed as DirectorRight of the personother than retiringdirectors to stand fordirectorshipAlternate DirectorDuties of DirectorResignation of directorsSection 313-Absence for 3months from the ‘state wherethe Board Meetings areordinarily held’, is thecriteriaNot specifically providedNo such provisionspecifically existedListed companies may have one directorby small share holder Tenure of such directors- notexceeding two consecutive term of 5years Can be reappointed after a gap of 3years, however he should not beassociated with the company directlyor indirectly in this gap Not liable to retire by rotation Excluded for the purpose ofcomputing ‘1/3rd of the retiringdirectors’provides for max 15 and beyond 15by passing a special resolution151149149(1)Clause 160 has increased this amountto Rs. 100,000 which is refundablewhen he is appointed or even whenhe gets more than 25% of the totalvalid votes cast either on show ofhands or on poll on such resolutionClause 161-has been modified toinclude ‘India’, instead of the ‘statewhere the board meetings areordinarily held’, to be the criteria160Provides for the following duties: To act in accordance with co’sAoA; Act in good faith; Exercise his duties with duecare and diligence. A director shall not involve inany conflicting interest with thecompany Achieve or attempt to achieveany undue advantage; Assign his office.Provision for director to resign bytendering his resignation letter: whichthe Board has to note and place beforethe members in the next generalmeeting.166161168Date of resignation will be datementioned in the letter or the date ofreceipt of the resignation by thecompany, whichever is later.Loan to Directorssec295-notapplicabletoDirector who has resigned shall be liableeven after his resignation for offenceswhich occurred during his tenureCG approval done away with and185

Remuneration ofmanagerial personnel incase of no profits orinadequate profits.Appointment of WholeTime DirectorNumber of directorshipIncrease in subscribedcapitalIssue of bonus sharesBuy back of sharesprivate companies and priorapproval of the CG requiredGoverned by Schedule XIIISection 269-every publiccompany having capital ofmore than Rs 5 cr.-to have aManaging director/ WTD/Managerapplicable to private companies as well.To be governed by schedule V. IDs notto get stock option but may get paymentof fees and profit linked commissionsubject to limits. CG may prescribeamount of fees under the rulesEvery company belonging to such classor description of companies as may beprescribed shall have MD or CEO orManager and in their absence, a WTDand a Company Secretary.Individual not to be the Chairman of theCo. as well as the MD or CEO of the Co.at the same time (AoA can provide forthis);Every whole time KMP to be appointedby a resolution at BOD meeting;A WTKMP not to hold office in morethan one company at the same time.Any vacancy in the office of any KMP tobe filled up by the BOD within 6 m.Provisions relating to separation ofoffice of Chairman and ManagingDirector (MD) modified to allow, incertain cases, a class of companieshaving multiple business and separatedivisional MDs to appoint same personas ‘chairman as well as MD’20, out of which not more than 10 can bea public companies and includesalternate directorship alsoIV.Share capitalApart from existing shareholders, if thecompany having share capital at anytime, proposes to increase its subscribedcapital by the issue of further shares,such shares may also be offered toemployees by way of ESOP subject toapproval of shareholders by way ofspecial resolution. (Clause 62)No such provisions existed. Private limited companies are notHowever rules framed for permitted to issue bonus shares.public unlisted company.[77B. PROHIBITION FOR A company can make a buy back even ifBUY-BACK IN CERTAIN it had at any time defaultedCIRCUMSTANCES1.No company shall in repayment of deposit ordirectlyorindirectlyinterest thereon, redemption ofpurchase its own shares ordebentures or preference sharesother specified securities –or payment of dividend to anya)throughanyshareholdersubsidiarycompany Repayment of term loan orincludingitsowninterest thereonsubsidiary companies ; orb)throughany Provided that default must have been2031656263 and2366(6)

ExitoptionofshareholderPermissible mode ofissuance of securitiesVotingrightspreference sharesonProhibition of issue ofshares at discountPreferencebeyond 20 yearssharesRedemptionofunredeemed preferenceshares by issue offurther sharesinvestment company orgroupofinvestmentcompanies ; orc)if a default, by thecompany, in repayment ofdeposit or interest payablethereon, redemption ofdebentures or preferenceshares or payment ofdividendtoanyshareholder or repaymentof any term loan or interestpayable thereon to anyfinancial institution orbank is, subsisting.2.No company shalldirectlyorindirectlypurchase its own shares orother specified securities incase, such company hasnot complied with theprovisions of sections 159,207 and 211.]No provisionCompaniescouldissuesecurities by way of publicissue, private placement,rights issues or bonus issueSection 87Differentcriteriaforcumulativeandnoncumulative preference sharesfor trigger of voting rights.Section 79-Issue of shares atdiscount permissible subjectto conditions and CentralGovernment approvalSection 80Issueofirredeemablepreferencesharesorredeemable beyond 20 yrs isprohibitedNo such provisionremedied and a period of 3 years musthave elapsed after such default ceased tosubsist.Shareholders have exit option if themoney raised has not been utilisedPrivate companies can issue securitiesonly through private placements aftercomplying with Part II of Chapter II .Thus Private companies cannot rightsshares or bonus shares.No difference between cumulative ornon – cumulative, voting rights arise ifdividends payable are in arrears for aperiod of two years or more.2723, 62,6347Issue of shares at discount is void andnot permissible except for Sweat equityshares54Only infrastructure companies can issuepreference shares beyond 20 yearssubject to annual redemption of suchpercentage of preference shares as maybe prescribed on annual basis at theoption of such preferential shareholders Companymayredeemunredeemed preference shares byissuing further redeemable preferenceshares equal to the amount due, alongwith the dividend thereon , with theconsent of 75% of shareholders (invalue) and approval from tribunal on apetition made.55 Such issue or redemption shallnot be deemed to be an increase or asthe case may be reduction of share55 (3)

Alterationofsharecapital by consolidationor division of sharecapital into shares oflarger amountSection 94(1) permitted thesame if there was a provisionfor the same in the AoAtreating it as a merealteration not involving anyreduction in the sharecapital.No approval of the Court orany other authority required.No provision in the act.However Rules framed forpublic unlisted CompanyIssue of bonus sharescapital of the company.Can be made only after makingapplication and obtaining approval fromTribunalApproval is required for consolidationand division of share capital only if thevoting percentage of ivate companies are excluded in thisclause for issue of bonus shares, butapparently clause 23 does not permitprivate companies to issue bonus sharesNo reduction of capital shall be made bya company if the company is in arrearsin the repayment of any depositsaccepted by it or the interest payablethereon irrespective of the depositsbeing accepted before or after thecommencement of this actNeeds special resolution of members forthe issue of debentures with conversionoption wholly or partlyQualified Institutional Buyers shall notbe covered under the provisions relatedto Private PlacementIs compulsory for public issue ofdebenture through prospectus to morethan 500 personsNo reduction of capitalif deposits not repaidNo such provision existed.Issue of debentures withconversion option andother provisionsPrivate placementsNo such requirement existed.AppointmentDebenture trusteeSection 117BNo such ceiling of 500existed. Appointment ofDebenturetrusteecompulsory for companyissuing prospectus or a letterof offer to the public forsubscription of its debenturesV.Acceptance of deposits by CompaniesPrivatecompaniesare NBFCs are not covered by theprohibited from inviting or provisions relating to acceptance ofaccepting deposits from deposits and they will be governedpersons other than its under rules issued by Reserve Bank ofmembers, directors or their India.(Clause 73)relativesCompany may accept deposit frompersons other than its members havingnet worth and turnover of certainamount as prescribed subject tocomplying with necessary conditionsand after consultation with RBI.(Clause 76)VI.InvestmentsNo such provision existed in Provides that investments not to besection372Aofthe made through more than 2 layers ofCompanies act 1956, which investment companies.dealt with inter corporateloans and investments.The rate of interest on inter corporateloans will be the prevailing rate ofofAcceptance of Depositsby CompaniesInvestment restriction61 (b)63 and236671717376186

interest on dated Government SecuritiesVII.Books of Accounts and Financial YearIn relation to anybody Financial year can only be from Aprilcorporate, the period in March , existing companies has to alignrespect of which any profit within 2 years of the commencement ofand loss account of the body the actcorporate laid before it inannual general meeting ismade up, whether thatperiod is a year or notFinancial YearMaintenance of books ofaccount in electronicmodePreservation period ofbooks of accountCorporateresponsibilityso

THE COMPANIES ACT, 2013 (Passed in both houses of Parliament on 8th August 2013) We all know that the 57 year old Companies act, 1956 has now got replaced with the new Companies Act, 2013. This write up has been made with an effort to compare some of the major clause / issues in the new Companies Act, 2013 and the Companies Act 1956.