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Secretarial Audit in India

Summary

The majority of Indian companies are expected to comply with such audit criteria. There are various requirements that the company must follow in order to conduct an audit. The Companies Act of 2013 is the primary statute in India that governs secretarial audit. Companies must request a secretarial audit report from the secretarial auditor in accordance with section 204(1). The Companies (Appointment and Remuneration of Managerial Personnel) Rules 2014 must be read in conjunction with this provision. Rule 9.

Secretarial Audit: Characteristics

  • This type of audit verifies that the business is adhering to the 2013 Companies Act's standards.
  • It encourages ethical behaviour among the company's employees.
  • As a group of people perform it, it encourages independence across the company.
  • The company can control and handle various types of risks by carrying out correct procedures relating to this kind of audit.
  • One of a business's key goals is to manage risks. Having a system for secretarial auditing makes this simple to do.

Audit of Secretaries' Applicability

The following companies must conduct a secretarial audit in accordance with section 204(1) read with rule 9 of the Companies (Appointment and Remuneration of Managerial Personnel) Rules 2014-

  1. Listed company
  2. A company with 50 crore rupees in paid-up capital
  3. A public limited company's annual turnover exceeds 250 crore rupees.
  4. The public company's borrowings total more than 100 crore rupees.

Therefore, conducting a secretarial audit is required if the aforementioned requirement is satisfied.

The requirements for conducting a Secretarial Audit

    To conduct this type of audit, the following prerequisites must be met:

  1. The selection of a company secretary
  2. The Form MR-3 Format must be used.
  3. Include the board report's annexure.
  4. Quality Control

Who is capable of performing the above compliance in relation to the Secretarial Audit?

To perform this type of audit in India, a person typically has to have completed the Institute of Company Secretaries in India's (ICSI) Company Secretary course. However, the person must have the necessary training to perform this kind of audit.

Clauses pertaining to the Secretarial Audit

  • Company-specific compliance requirements.
  • Any type of flexibility in the company's compliance certificate.
  • Examination of the company's records and documentation.
  • Calendar for doing the secretarial audit.
  • The selection of auditors to conduct this type of audit.

Advantages of Conducting a Secretarial Audit

  • It would be useful for a potential buyer in a private acquisition transaction to conduct due diligence.
  • It would offer the company's management and shareholders some sort of indemnity.
  • As long as the company complies with the law, relevant auditing standards will be followed.
  • Minimizes the risk that a company assumes.
  • It aids in the company's preservation of various types of legal documentation.

Beneficiaries in the Secretarial Audit

The following people stand to gain from conducting this kind of audit:

  1. Directors
  2. Promoters
  3. Aspiring investors
  4. Non-Executive Directors
  5. Legal and governmental authorities

Statutory Laws Concerning Secretarial Audit

According to the 2013 Companies Act's provisions, this type of audit must be performed. In addition, the following laws would be relevant in India for secretarial audits-

  • The 2013 Companies Act and related rules
  • The Securities Contracts (Regulation) Act (SCRA) of 1956 and its corresponding rules
  • The Depositories Act of 1996, along with the corresponding regulations, bylaws, and rules
  • Rules pertaining to Overseas Direct Investment, Foreign Direct Investment, and Other Allied Laws in India, as well as the Foreign Exchange Management Act of 1999
  • In addition, secretarial audits in India must adhere to the rules set forth by the Securities Exchange Board of India.

Method for Conducting a Secretarial Audit

To conduct a secretarial audit in India, the following process must be followed-

  • The selection of a company secretary

    The company must convene a board meeting and adopt the resolution relating to the appointment of a secretary auditor in accordance with Rule 8 of the Companies (Meetings of the Board) Rules 2014.

  • Communication in writing about this
    The person conducting the audit is supposed to get formal notification of the secretary auditor's appointment. A letter of engagement from the business would be required in order for this to be done formally.

  • Signing the Engagement letter
    To ensure that obligations are met in the performance of audit functions, the letter of engagement must be signed after the auditor has been appointed.

  • Reporting on Working Papers
    Any reports pertaining to a company's secretarial audit would be included in this phase. The person chosen to serve as a secretarial auditor would be responsible for producing such a summary regarding secretarial audit.

  • Providing an audit report
    The report must be submitted in the last phase in compliance with the 2013 Companies Act's requirements. A secretarial auditor is required to do a thorough analysis prior to submitting the report. There must be some sort of report-related observation and marks included with this analysis. These observations must be given within the report itself. The audit being performed by a third party; thus, the report must be impartial. This report needs to be written as an opinion.

  • Absence of Opinion
    Limitations imposed by the company must be mentioned in the report relating to secretary audit if they interfere with the auditor's job or prevent them from performing certain tasks. Impossibility to execute the compliance in prohibited places must be noted down as a remark. The Board of Directors are required to explain any such remarks or opinions that are contained in the report.

Which Businesses are Ineligible for Secretarial Audits?

Only a few companies would be eligible for a secretarial audit. Normally, only public limited and listed companies with shares on the stock exchange would engage in this. A public company is one whose shares and securities are listed in a recognized stock market, according to section 2(71) of the 2013 Companies Act.

However, a secretarial audit would be performed in accordance with the requisites of the public company if a private company is a subsidiary to it.

Secretarial Audit- Related Non-Compliance

According to section 204(4) of the Companies Act of 2013, a company will face penalties if secretarial audit is not performed or if officers or executives violate the rules governing secretarial audit. According to Section 448 of the Companies Act, a business would be engaging in fraud if any of the following occurred while conducting an audit-

  • Falsifying any relevant fact or statement about the company
  • Suppressing any information that the company is obligated to make public
  • Excludes any important information from being published.
  • Any person or individual who enacts section 447's definition of fraud faces the following sentences if convicted-

  • Minimum of six months and maximum of ten years.
  • The perpetrator would have to pay a fine that was at least equal to the sum involved in the secretarial audit fraud. The fine, however, may go up by more than three times that amount.
  • If there is any kind of public interest in the fraud, then the punishment would be 10-year sentence.

Documents needed in India to conduct a Secretarial Audit

In India, the following papers are required to conduct a secretarial audit-

  • Documents pertaining to the company, such as the charter papers and other pertinent data
  • Board records such as minutes of the meeting and resolutions that are discussed during board meetings.
  • Company’s financial statements and audited reports
  • All details pertaining to the company's listing. Important documentation pertaining to the company's listing would be included in this.
  • Information on the bonds, returns, lease deed, and annual performance reports
  • Filings with the RBI and other statutory departments (if there is a foreign investment)
  • All labour laws that are required by their separate legislation are registered and preserved.
  • Directors' admission and declaration of compliance with the code of conduct
  • Information on the directors' remuneration and sitting fees.
  • Information about CSR amount
  • Disclosures SAST (Substantial Acquisition of Shares)
  • Bank account information is needed for a dividend
  • Details of ECB (External Commercial Borrowings) Returns, if the company has international borrowings.

How you can contact Estabizz?

  • Fill the form.
  • Get a call back
  • Submit the required documents.
  • Track the progress of your application.
  • Get the expected results.

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