Hon'ble Finance Minister has announced changes in personal income tax rates in her budget.
Basic exemption limit increased to Rupees 3 lakhs. No tax for upto 3 lakhs income. Income Limit for rebate for income tax increased from 5 lakhs to 7 lakhs in the new tax regime.
|
Income slabs(Rs) |
Rate of tax (%) |
|
0-3 L |
0 |
|
3-6 L |
5% |
|
6-9 L |
10% |
|
9-12L |
15% |
|
12-15 L |
20% |
|
>15L |
30% |
RBI had announced that Retail Digitally Rupee will be launched from 01st December 2022 on pilot basis. The bank has finally launched the currency known as e-₹R (e Rupee) today. The Central Bank Digital Currency (CBDC) is expected to outscore the present methods of retail transactions. The highlights of the electronic currency and details of pilot phase are as follows-
1. It
is an electronic version of currency which we normally use for cash
transactions.
During the test phase, the customers of selected banks/cities can use the digital currency. The first phase of launching this e-rupee will begin with four banks, viz., State Bank of India, ICICI Bank, Yes Bank and IDFC First Bank in four cities across the country. The pilot launch would initially cover four cities, viz., Mumbai, New Delhi, Bengaluru and Bhubaneswar and later extend to Ahmedabad, Gangtok, Guwahati, Hyderabad, Indore, Kochi, Lucknow, Patna and Shimla. Four more banks, viz., Bank of Baroda, Union Bank of India, HDFC Bank and Kotak Mahindra Bank will join this pilot subsequently.
The introduction of e-R is expected to boost
the digital transactions and to speed up the journey to becoming a digital
economy. General public would convert the physical cash in their hand into the
digital form in future for ease of transactions. Just like how digital
wallets/payment services in android devices conquered the hearts of people
during the past 6-7 years, we could hope that e-Rupee would turnout to be a
common mode of retail transactions in near future.
KMP Series – 2
Key Managerial
Personnel (KMP)
An individual
appointed under Section 203 of the Companies Act 2013 shall be considered as
“Key Managerial Personnel” for the purposes relating to a Company, subject to
the provisions of the Companies Act 2013. (Read previous article on KMP by clicking here)
Whole Time Company
Secretary
In simple
words, a Whole Time Company Secretary (CS) is a professional appointed by a
Company as per the Companies Act 2013 to ensure that the Company complies with applicable
laws. Section 2(24) defines Company
Secretary as follows-
"Company
secretary" or "Secretary" means a company secretary as defined
in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act,
1980 (56 of 1980) who is appointed by a company to perform the functions of a
company secretary under this Act”
Clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 reads as follows-
"Company Secretary" means a person who is a member of the Institute”.
Here,
“Institute” mean Institute of Company Secretaries of India (ICSI) constituted
by the Company Secretaries Act, 1980, in order to regulate and develop
profession of Company Secretaries. He/
She should have cleared CS Final exams of Company Secretaryship course and
completed requisite training as per ICSI curriculum. He should hold membership
number/ certificate (ACS/FCS) from ICSI.
Which Company should appoint a “Whole Time Company Secretary”?
The following
Companies shall mandatorily appoint Whole Time CS –
· Every listed company;
· Every public limited company having paid up capital of
10 crore or more;
· Every private limited company having paid up capital
of 10 crores or more.
Procedure for Appointment
As per the provisions of the Companies Act 2013, CS has to be appointed by Board of Directors (on recommendation made by Nomination & Remuneration Committee, in case the Company has such a committee) by passing a resolution to the effect. Appointment letter/ employment agreement need to be prepared and executed between the Company and the candidate. Requisite e-forms need to be filed with Registrar of Companies (MCA) to record the same. A Company Secretary of a holding company can also be appointed as Company Secretary in a subsidiary Company in accordance with section 203.
Duties/ Role of Whole time CS
In the light of the provisions of the
Companies Act 2013, functions of Company Secretary shall include,—
(a) to report to the Board about
compliance with the provisions of this Act, the rules made thereunder and other
laws applicable to the company;
(b) to ensure that the company
complies with the applicable secretarial standards;
(c) to provide to the
directors of the company, collectively and individually, such guidance as they
may require, with regard to their duties, responsibilities and powers;
(d)
to facilitate the convening of meetings and attend Board, committee and general
meetings and maintain the minutes of these meetings;
(e) to obtain
approvals from the Board, general meeting, the government and such other
authorities as required under the provisions of the Act;
(f) to represent
before various regulators, and other authorities under the Act in connection
with discharge of various duties under the Act;
(g) to
assist the Board in the conduct of the affairs of the company;
(h) to
assist and advise the Board in ensuring good corporate governance and in
complying with the corporate governance requirements and best practices; and
(i) to
discharge such other duties as have been specified under the Act or rules; and
(j) such
other duties as may be assigned by the Board from time to time.
However, his/her role is not limited to aforesaid statutory aspects alone.
He could be entrusted with
any other additional role based on his experience, additional qualifications
and skill set in finance, legal, HR etc. In many companies CS is associated
with Legal department, Finance Department, HR Department, Forex etc in addition
to the Secretarial/Compliance department.
Compliance Officer
As per regulation 6 of SEBI (LODR)Regulation 2015 Listed Companies shall appoint a qualified Company Secretary as its “Compliance Officer”.
The
compliance officer of the listed company shall be responsible for-
(a) ensuring conformity with the regulatory provisions applicable to the listed entity in letter and spirit.
(b) co-ordination with and reporting to the Board, recognised stock exchange(s) and depositories with respect to compliance with rules, regulations and other directives of these authorities in manner as specified from time to time.
(c) ensuring that the correct procedures have been followed that would result in the correctness, authenticity and comprehensiveness of the information, statements and reports filed by the listed entity under these regulations.
(d) monitoring email address of grievance redressal division as designated by the listed entity for the purpose of registering complaints by investors:
Role of CS in Corporate Governance
As you might be aware,
the Institute of Company Secretaries of India (ICSI) has set its mission as
follows-
“To develop high callibre professionals facilitating good corporate governance”
ICSI is taking lot of efforts to develop professional skills in Company Secretaries to ensure good corporate governance.
Corporate
Governance is all about being fair and transparent in all transactions by
implementing sound corporate governance practices and staying accountable to
the stakeholders for its actions. An investor or stakeholder of a Company is a
beneficiary of good corporate governance. The Company is not expected make
profits by doing business, but it should be able to build trust and confidence
among all category of stakeholders namely customers, investors, banks,
government, employees etc which elevate the company to next level. Without any
doubt we could say that “Compliance” is one of the keys to improve the
corporate governance score of a Company.
An
organization having a CS will be able to ensure good corporate governance by
complying with applicable laws and reap the benefits in present and future. But
the organization and departments should extend their co-operation and
willingness to be molded according to the advice/ guidance given by the CS.
Organizations should try to induce CS qualified candidates into its activities
where they wish to bring “changes” that would increase value and improve brand
image of the organization among its stakeholders.
Liability
A
CS who is occupying the post of Key Managerial Personnel in accordance with
Section 203 of the Companies Act 2013, should very careful and diligent while
performing his duties as he could be held liable for non-compliances/defaults
in his Company. He/She could be made liable as “Officer who is in default” as
defined in 2(60) of the Act. He/ She should exercise adequate care while
certifying returns of his/her company and ensure that the details submitted is
correct and complete to the best of his/knowledge and belief.
Conclusion
Over
many year CS has become an attractive employment opportunity irrespective of
the responsibility and risks associated with it. CS has earned title of
“multifaceted professional” during past many years as he/ she is expected to ensure
compliance with corporate laws (Company law, FEMA, SEBI compliance etc in true
letter and spirit) along with other laws applicable to his/her respective
Company. Lets hope that CS would be entrusted with more duties and powers and
more statutory protection would be given to them by the Government in future.
(Read my previous article on KMP by clicking here)
Ref:
The Companies
Act 2013
SEBI LODR Regulations 2015
Disclaimer: The views expressed here are based on author’s understanding of the provisions of the applicable laws. Kindly refer concerned Act/Rules/Regulations mentioned herein for more clarity.
The views expressed here are based on author’s understanding of the provisions of the applicable laws. The views expressed are of personal nature and are published without any intention to promote any person/organisation connected with the author. The contents of this article/blog are for general information purposes and are not intended to constitute any legal advice.The users of above information are requested to refrain from relying solely on the information shared here without seeking legal advice from a reputed professional. The users are requested to refer bare Act/Rules/Regulations for more clarity on the matter.
In
simple words, Key Managerial Personnel (KMP) refers to those persons who are in
charge of various aspects of business, to be specific- operations, finance and
legal and are expected to deliver specified duties in the manner required under
applicable laws. We could also define them as key persons who are responsible
for leading the company in the best interest of stakeholders (including
Government) and ensuring compliance with laws. Let’s analyse KMP in the light of Companies Act 2013.
Definition
of KMP
Section 2(51) of
the Companies Act 2013 (“Act”) defines KMP as follows-
“Key Managerial Personnel”, in relation to
a company, means—
(i) the Chief Executive
Officer (CEO) or the Managing Director(MD) or the Manager;
(ii) the Company Secretary
(CS);
(iii) the Whole-Time Director(WTD);
(iv) the Chief Financial
Officer(CFO);
(v) such other officer, not more
than one level below the Directors who is in whole-time employment, designated
as key managerial personnel by the Board; and
(vi) such other officer as
may be prescribed
Appointment
of KMP
Section 203 of the Companies
Act 2013 deals with appointment of KMP. As per Section 203 and applicable rules,
every listed company and every other public company having a paid-up share
capital of ten crore rupees or more shall have whole-time key managerial
personnel. Thus, both these class of companies shall have whole time KMP as
follows-
1.MD/CEO/Manager or in their absence a WTD
2.Company Secretary (CS)
3.Chief Financial Officer (CFO)
Obviously a person may ask
question relating to appointment of Whole-Time KMP for private limited companies.
As per Rule 8A every private company which has a paid up share capital of ten
crore rupees or more shall have a Whole time Company Secretary. So it is clear
that for private limited companies the law recommends only appointment of one
Whole Time KMP- that is CS, that too when paid up capital is ten crore rupee or
more. However, there is no prohibition for private companies (other than
aforementioned class of private company) for voluntarily appointing
MD/WTD/Manager/CFO/CS according to their convenience.
The Companies Act defines
each whole time KMP as follows-
(a)“Managing Director” means
a director who, by virtue of the articles of a company or
an agreement with the company or a resolution passed in its general
meeting, or by its Board of Directors, is entrusted with substantial
powers of management of the affairs of the company and includes
a director occupying the position of managing director, by
whatever name called.
(b)“Chief Executive Officer” means an officer of
a company, who has been designated as such by it;
(c) “Manager” means an
individual who, subject to the superintendence, control and direction
of the Board of Directors, has the management of the whole, or
substantially the whole, of the affairs of a company, and includes a director or
any other person occupying the position of a manager, by whatever name called,
whether under a contract of service or not.
(d) “Whole-time
Director” includes a director in the whole-time employment of the
company
(e)“Chief Financial Officer”
means a person appointed as the Chief Financial Officer of a company;
(f) “Company secretary” or
“secretary” means a company secretary as defined in clause (c) of
sub-section (1) of section 2 of the Company Secretaries Act, who is appointed
by a company to perform the functions of a company
secretary under this Act
Emphasis
on the word “Whole-Time”
It is relevant to note that
the Act/Rules give emphasis on the word “Whole Time”. In normal parlance,
whole-time refers to “full time”. So a Whole Time KMP refers to a KMP who
devote his/her entire working hours, skills and abilities for fulfilling
his/her role in the company pursuant to the duties cast upon him/her by the Act
and/or a contract/undertaking with the Company. So, the Act clearly
differentiate Whole Time KMP from other directors and senior officials in the
company and enunciate the duties expected from such personnel under the Act.
They will also be responsible to the Company and other Stakeholders and will be
held liable under various provisions of the Act.
Appointment
process of Whole-Time KMP
Nomination &
Remuneration Committee shall recommend the appointment of candidate to the
Board of Directors, if the committee is of the opinion that the candidate
satisfies the conditions under the applicable laws and requirements of the
Company. The Board of Directors may consider the recommendation and pass a
resolution appointing the Whole Time KMP along with terms and conditions upon
which appointment is made. It is advised to issue appointment letter or enter
into a contract post- board meeting setting out his/her duties, responsibilities,
remuneration etc.
KMP/
Other roles in other Companies
Section 203(3) clearly says
that “a whole-time key managerial personnel shall not hold office in
more than one company except in its subsidiary company at the
same time”. Again proviso says “nothing contained in this sub-section shall
disentitle a key managerial personnel from being a director of
any company with the permission of the Board. So, a Whole-Time KMP of
a Holding Company can be a KMP in one Subsidiary company. So, other than
becoming Whole Time KMP of subsidiary company, a Whole Time KMP cannot hold any
other whole-time position in its subsidiary company or other companies.
The Act also does not
specify the category of KMP in case of appointment of same candidate in
subsidiary company as KMP.
The Act permits appointment
of KMP of one Company as Director in any Company with the permission of former
Company. Here the Act is silent on the matter whether such appointment of KMP
as Director in any company should be in capacity of Executive Director or
Non-Executive Director. But, since KMP is already in Whole-time employment of
former company, it could be presumed that he/she cannot take up executive or
whole time position in other companies. That means, a whole time KMP of a
Company could be appointed as Non-executive Director in any company provided
he/she has obtained “no objection” from board of directors of that Company. The
word “any company” is not defined and hence could be interpreted that it
includes “subsidiary company” also.
Dual
Role in same company
Can same person be appointed
under two or more categories? For eg: Mr.A is company secretary of XYZ Ltd, a
company having 15 crores paid up capital. The Board of Directors thinking of
appointing him as CFO of XYZ Ltd. Is this possible?
This question has to be analysed
from the point of view of the lawmakers. There is all reason to believe that the
intention of law makers while categorizing KMP to 3 categories is to ensure
easy fixing of responsibility, improved transparency and specialization to
their respective area of work/knowledge. The lawmakers could have visualised 3 key
persons of different specializations leading a company forward without conflict
of interest and without compromising on the legal, financial and operational
aspects. Though the Act does not expressly prohibit appointment of same
candidate in dual KMP capacities, it is advised to appoint 3 different persons
of requisite qualifications for aforesaid 3 categories, to comply with law in
true letter and spirit.
In above example, it is
suggested to appoint another person with requisite qualifications as CFO.
Managerial
remuneration
The provisions relating to
managerial remuneration shall be complied with for remuneration of Whole time
KMP in public limited companies.
Responsibility
As stated above, Whole Time
KMP could be held liable for non-compliances under applicable provisions of the
Act. For eg: A CFO/KMP could be held liable under 129 for contravention of
provisions relating to Financial Statements. Whole Time KMP shall also be
considered as “Officer in default” under Section 2(60) of Act. Where there is
proof for any non-compliance from part of KMP, the respective penal provisions
shall aplly. KMP shall also be covered under the term “Related Party” under the
Act. Hence, the Whole Time KMP shall be very attentive and careful in the
course of duties and while giving opinions/advise in their respective roles. In
case of companies to whom RBI norms, listing regulations are applicable, the
provisions contained therein shall also be complied with.
Conclusion
Apart from leading the
business or day to day KMP shall parallelly concentrate on ensuring compliances
under applicable laws. The Company management shall give ample oppurtunity to
the Company Secretary and Chief Financial Officer to express their views on
various legal/financials aspects of transactions and use them judiciously like
tools to achieve good compliance scores. Let’s hope more provisions will be
introduced in future to safeguard the KMP and to bring clarity to certain provisions
discussed above.
We will analyse other
aspects of KMP in coming days.
If you have any query
relating to this article please reach me at victorjuruvath@gmail.com. If
you have suggestions that any topic to be included in this blog or any comments
on how this article is helpful to you or if you have any different views on the
topic, please comment below.
Disclaimer: The
views expressed here are based on author’s understanding of the provisions of
the applicable laws. The contents of this article/blog are for general
information purposes and are not intended to constitute any legal advice. The
users of above information are requested to refrain from acting on the basis of
information shared here without seeking legal advice from a reputed
professional.