SCOPE FOR COST ACCOUNTANTS UNDER COMPANIES ACT, 2013 AND RULES MADE THERE UNDER

[Mr. M. GOVINDARAJAN]

Introduction

     The long awaited Companies Act came into existence. New Rules have been framed by the Government for the purposes of carrying over the provisions of the Companies Act. Still rules are to be notified.  There is a curiosity to know the role of Cost Accountants in the new regime. This article discusses the role of Cost Accountants in employment as well as in practice.

Cost Accountant as a Key Managerial Person

     Section 203 of the Act provides for the appointment of Key Managerial Person. The said section provides that every company belonging to such class or classes of companies, as may be prescribed, shall have the following whole time key managerial personnel-

• Managing Director or Chief Executive Officer  or manager and in their absence, a whole time director;
• Company Secretary; and
• Chief Financial Officer.

By virtue of qualification and experience a Cost Accountant may become a Key Managerial Person in the company.

Cost Accountant as an Independent Director

     Section 149 (4) provides that every listed public company shall have at least one third of total number of directors as independent directors and the Central Government may prescribe the minimum number of independent directors in case of any class or classes of public companies. 

     Rule 5 of the Companies (Appointment and Qualification of Directors) Rules, 2014 prescribes the qualification of an independent director. The said Rules provides that an independent director shall possess appropriate skills, experience and knowledge  in one or more field of finance, law, management, sales,  marketing, administration, research, Corporate Governance, technical operations or other disciplines related to the companies business.

     The Cost Accountant being the expertise in most of the above fields may become independent director as stipulated in the Companies Act, 2013.

Technical Member of the Tribunal

     A Cost Accountant in Practice having at least fifteen years service is eligible to be appointed as a Technical Member of the National Company Law Tribunal according to Section 409 (3) of the Act.

     Section 411(3) provides that the Technical Member of the National Company Law Appellate Tribunal shall be a person of proven ability, integrity and standing having special knowledge and experience of not less than 25 years in law, industrial finance, industrial management or administration or industrial reconstruction, investment, accountancy, labor matters or such other disciplines related to management, conduct of affairs, revival, rehabilitation and winding up of companies.

     By virtue of the above section, the Cost Accountant either in employment or in practice who is having more than 25 years in the above said areas will be eligible to be appointed as the Technical Member of the National Company Law Appellate Tribunal.

Company Liquidator

     Section 275 (2) provides that the provisional liquidator or the Company Liquidator, as the case may be, shall be appointed from a panel maintained by the Central Government consisting the names of Chartered Accountants, Advocates, Company Secretaries, Cost Accountants or firms or bodies corporate having at least 10 years experience in company affairs.  Thus the Company Secretary may act as a provisional liquidator or the Company liquidator. 

Administrator

     Section 259 (Chapter XIX dealing with revival of sick companies) of the Companies Act provides for the appointment of administrator. The said section provides that the interim administrator or the company administrator, as the case may be, shall be appointed by the Tribunal from a data bank maintained by the Central Government or any institute or agency authorized by the Central Government in a manner as may be prescribed consisting of the names of Company Secretaries, Chartered Accountants, Cost Accountants and such other professionals as may, by notification, be specified by the Central Government.

Cost Audit

     Section 148 of Companies Act, 2013 gives powers to the Central Government to specify audit of items of cost in respect of certain companies.  The provisions related to cost audit under this section are discussed as below:

• The Central Government, may, by order, in respect of such class of companies engaged in the production of such goods or providing such services as may be prescribed, direct that particulars relating to the utilization of material or labor or to other items of cost may be prescribed shall also be included in the books of account kept by that class of companies;
• The Central Government before issuing such order in respect of any class of companies regulated under a special act shall consult the regulatory body constituted or established under such special Act.  (eg.,  for Telecom companies, Telecom Regulatory Authority of India is to be consulted);
•  If the Central Government is of the opinion, that it is necessary to do so, it may, by order, direct that the audit of cost records of class of companies and which have a net worth of such amount as may be prescribed or a turnover of such amount as may be prescribed, shall be conducted in the manner specified in the order;
• The audit shall be conducted by a Cost Accountant in practice who shall be appointed by the Board on such remuneration as may be determined by the members in such manner as may be prescribed;
• No person appointed under Section 139 of the Act as an auditor of the company shall be appointed for conducting the audit of cost records;
• The auditor conducting the cost audit shall comply with the cost auditing standards, which means such standards as are issued by the Institute of Cost Accountants of India, constituted under the Cost and Works Accountants Act, 1959, with the approval of the Central Government;
• This audit is conducted in addition to the audit conducted under Section 143 (which deals with powers of auditors and auditing standards, which is inconsistent with the provisions of the Act itself);
• The qualifications, disqualifications, rights, duties and obligations applicable to auditors under Chapter X shall, so far as may be applicable, apply to a cost auditor appointed under this section;’
• It shall be the duty of the company to give all assistance and facilities to the cost auditor for auditing the records of the company;
• The report on the audit of cost records shall be submitted by the cost accountant in practice to the Board of Directors of the company;
• A company shall within 30 days from the date of receipt of a copy of the cost audit report prepared in pursuance of a direction furnish the Central Government with such report along with full information and explanation on every reservation or qualification contained therein;
• If, after considering the cost audit report and the information and explanation furnished by the company, the Central Government is of the opinion that any further information or explanation is necessary, it may call for such further information and explanation and the company shall furnish the same within such time as may be specified by that Government;

Remuneration

     Rule 14 of ‘The Companies (Audit and Auditor) Rules, 2014  deals with the remuneration given to Cost Auditor.  Remuneration of the cost auditor is fixed by the companies which are divided into two categories:

• Companies which are required to constitute audit committee;
• Companies which are not required to constitute audit committee.

In case the companies which are required to constitute audit committee-

• The Board may appoint an individual, who is a Cost Accountant in practice, or a firm of Cost Accountants in practice, as Cost Auditor on the recommendations of the Audit Committee, which shall also recommend remuneration for such cost auditor;
• The remuneration recommended by the Audit Committee shall be considered and approved by the Board of Directors and ratified subsequently by shareholders.

According to Rule 14(b) in case the companies which are not required to constitute Audit Committee, the Board shall appoint an individual, who is a Cost Accountant in practice or a firm of Cost Accountants in practice as Cost Auditor and the remuneration of such cost auditor shall be ratified by the shareholders. 

     In this Rule 14(b) it is not indicated whether the remuneration shall be approved by the Board of Directors which may be ratified subsequently by the shareholders.  Whether it may be presumed it is the implied power of the Board of Directors.

Cost Records and Cost Audit

     By virtue of the powers given under Section 469(1) and 469(2) of the Act the Central Government made draft rules viz., ‘Companies (Cost Records and Cost Audit) Rules, 2013 (‘Rules’ for short) and put the same in the web site for the comments of the stakeholders and the public. The comments and suggestions on the said matter are to be reached to the Ministry by 6^th December 2013.  These rules are applicable to three types of companies engaged in the production of goods or services-

• Companies engaged in strategic sectors;
• Companies engaged in an industry regulated by a Sectoral Regulator or a Ministry of Department of Central Government;
• Other companies.

Comments have been received by the Ministry of Corporate Affairs.  On considering the comments the Companies (Cost Records and Cost Audit) Rules, 2014 was released by Ministry of Corporate Affairs.

     The above said Rule is applicable to the following class of companies including foreign companies:

• Companies engaged in the production of following goods in strategic sectors;
• Companies engaged in an industry regulated by a Sectoral Regulator or a Ministry or Department of Central Government;
• Companies operating in areas involving public interest such as Railway, minerals etc.,
• Companies (including foreign companies other than those having only liaison offices) engaged in the production, import and supply or trading of medical devices such as Cardiac Stents, Drug Eluting Stents etc.,

     Rule 4 provides for cost audit to the companies having turnover as prescribed in this rule. Rule 5 provides that company subject to cost audit is to maintain cost records in Form CRA-1 in such manner as prescribed.

     Rule 6 provides that a company subject to cost audit is required to appoint cost auditor within 180 days of the commencement of every financial year.  The company shall inform the cost auditor of his appointment and shall file a notice of such appointment with the Central Government within a period of 30 days of the Board Meeting in which such appointment is made or 180 days whichever is earlier in Form CRA -2 electronically.

     Every Cost auditor, so appointed, shall continue in such capacity till the expiry of 180 days from the closure of the financial year or till he submits his cost audit report.

     Every Cost Auditor, who conducted cost audit of the company, shall submit the cost audit report along with his reservations or qualifications or observations or suggestions, if any, in Form CRA-3, to the Board of Directors. The Board of Directors, within 3 months from the date of receipt of the cost audit report shall furnish the Central Government with such report along with all information and explanation on every reservation or qualification contained therein in Form CRA-4.

     The said Rule is complete deviation from the earlier position. The members are not happy with these rules.  The Central Government, since received many representations from the members expressing their grievances about the scope of the rules and the implications for the profession of Cost Accountancy, appointed an Expert Committee -

• To examine the Companies (Cost Records and Audit) Rules, 2014 , including the prescribed classes of companies/industries/sectors, the threshold limits and recommend appropriate changes/modifications to be made there under keeping in view the rational and relevant criteria to determine the basis of including or excluding a class or classes of companies;
• To examine the current cost audit scenario in the country and to suggest measures to optimally  utilize cost audit as an instrument for promoting transparency and efficiency in business and industry;
• To identify and suggest principles that should govern assignment of greater opportunities to Cost professionals;
• To suggest measures to enhance the utility of Cost Audit Reports to Government and other regulators/related agencies and the manner and the extent of their filing;
• To study prevalent international practices relating to cost records in large economies and draw comparison to current Indian scenario;
• To look into and make suitable recommendations about issues incidental to the above.

The Institute, to provide the requisite inputs to the Expert Committee constituted a National Advisory Committee to deliberate the issues and finalize the report for consideration of the Expert Committee.

Internal Audit

     Section 138 provides that such class or classes of companies as may be prescribed shall be required to appoint an internal auditor, who shall either be a Chartered Accountant or Cost Accountant or such other professional as may be decided by the Board to conduct internal audit of the functions and activities of the company.  The Central Government may, by rules, prescribe the manner and the intervals in which the internal audit shall be conducted and reported to the Board.

     Rule 13 of the Companies (Accounts) Rules, 2014 provides that  the following class of companies shall be required to appoint an internal audit or a firm of internal auditors, namely:-

• Every listed company;
• Every unlisted public company having-
  • Paid up share capital of ₹ 50 crores or more during the preceding financial year; or
  • Turnover of ₹ 200 crores or more during the preceding financial year; or
  • Outstanding loans or borrowings  from banks or  Public financial institutions exceeding ₹ 100 crores or more at any point of time during the preceding financial year;;or
  • Outstanding deposits of ₹ 25 crores or more at any point of time during the preceding financial year; and
• Every private company having-
  • Turnover of ₹ 200 crores or more during the preceding financial year; or
  • Outstanding loans or borrowings from banks or Public financial institutions exceeding ₹ 100 crores at any point of time during the preceding financial year.

The rule further provided that the existing company covered under any of the above criteria shall comply with the requirements of Section 138 and this rule within six months from commencement of such section.

     The Audit Committee or the Board shall, in consultation with the internal auditor, formulate the scope, functioning, periodicity and methodology for conducting the internal audit.

Incorporation of companies

     Cost Accountant in practice, who is engaged in the formation of the company, is to sign the declaration and to attach the same along with the Form- INC 8, at the time of e-filing, in respect of registration and matters precedent or incidental thereto have been complied with.

Commencement of Business

     Section 11(1) (a) of the Act provides that a company having a share capital shall not commence any business or excise any borrowing powers unless a declaration is filed in this regard.  Rule 24 of Companies (Incorporation) Rules, 2014 provides that the declaration filed at the time of commencement of business shall be in Form 21 along with the fee and the contents of the form shall be verified by a Company Secretary in Practice or Chartered Accountant or Cost Accountant in practice.

Pre certification

     In the Companies (Registration Offices and Fees) Rules, 2014 Rule 8(12) has been inserted. According to Rule 8(12) (a) a Cost Accountant in whole time practice can pre certify the following e-forms-

• INC 21- Declaration prior to commencement of business or exercising borrowing powers;
• INC 22 -  Notice of situation or change of situation of registered office;
• INC 28 – Notice of the order of the Court or any other competent authority;
• PAS 3 – Return of Allotment;
• SH 7 – Notice to Registrar of any alteration of share capital;
• CHG 1 – Form for registration of creation, modification of charge (other than those related to debentures) including particulars of modification of charge by Asset Reconstruction  Company in terms of Securitization and Reconstruction of Finance Assets and Enforcement of Securities Act, 2002 (SARFAESI)
• CHG 4 –Particulars of satisfaction of charges thereof;
• CHG 9 – Application for registration of creation or modification of charge for debentures or rectification of particulars filed in respect of creation or modification of charge for debentures;
• MGT 14 – Filing of resolutions and agreements to the Registrar;
• DIR 6 – Intimation of change in particulars of Director to be given to the Central Government;
• DIR 12- Particulars of appointment of Directors and the Key Managerial Personnel and the changes among them;
• MR 1- Return of appointment of key managerial personnel;
• MR 2 – Form of application to the Central Government for approval of appointment and remuneration or increase  in remuneration or waiver for excess or over payment to Managing Director or Whole Time Director or Manager and commission or remuneration to Directors;
• MSC 1 – Application to  Registrar  for obtaining the status of dormant company;
• MSC 3 – Return of dormant companies;
• GNL 3 – Particulars  of person(s) or key managerial personnel charged  or specified for the purpose of sub-clause (iii) or (iv) of clause 60 of Section 2;
• ADT 1 – Notice of appointment of  auditor by the Company;
• NDH 1 – Return of statutory compliances;
• NDH 2 – Application for extension of time;
• NDH 3- Half yearly return.

Rule 8 (12) (b) provides the following e-forms filed by companies, other than one person companies and small companies,, under Rule 9(1) shall be pre-certified by the Cost Accountant in whole time practice:

• GNL 1 – 4 – Form for filing an application with Registrar of Companies; (option);

Rule 8 (12) (C) provides that e-form DIR – 3 (Application for allotment of DIN) shall be filed along with the attestation of photograph, identity proof and proof of residence of the applicant by the Cost Accountant, in whole time practice.

Cost Accountant as an Expert

     Section 2(38) defines the term ‘expert’ which includes an engineer, a valuer, a Chartered Accountant, a Company Secretary, a Cost Accountant and any other person who has the power or authority to issue a certificate in pursuance of any law for the time being in force.  Section 211 (2) provides that the Serious Fraud Investigation Officer shall be headed by a Director and consists of such number of experts from the following fields to be appointed by the Central Government from amongst persons of ability, integrity and experience in-

• banking;
• corporate affairs;
• taxation;
• forensic audit;
• capital market;
• information technology;
• law; or
• such other fields as may be prescribed.

Cost Accountant by virtue of definition in Section 2(38) and having much experience in the above said field may be appointed as an expert.

Certification of Annual Return

     Section 92 (2) provides that the annual return, filed by a listed company or, by a company  having such paid up capital ₹ 10 crores and more and turnover ₹ 50 crores or more, shall be certified by a Cost Accountant in practice in Form No. MGT – 8, stating that the annual return disclosed the facts correctly and adequately and that the company has complied with all the provisions of this Act.

As a Scrutinizer

     Rule 20 (3) (ix) of Companies (Management and Administration) Rules, 2014 provides that the Board of directors shall appoint one scrutinizer, who may be Cost Accountant in practice, but not in employment of the company. He can scrutinize the e-voting process in a fair and transparent manner and to give his report in Form No. MGT – 13.

Practice under Nidhi Rules, 2014

     Rule 5(2) provides that Within ninety days from the close of the first financial year after its incorporation and where applicable, the second financial year, Nidhi shall file a return of statutory compliances in Form NDH-1 along with such fee as provided in Companies (Registration Offices and Fees) Rules, 2014 with the Registrar duly certified by a company Secretary in practice or a chartered accountant in practice or a cost accountant in practice.  The Cost Accountant in practice is to give certificate that he has verified the particulars furnished by the company including attachments from the original records maintained by the Nidhi Company which is subject matter of this form and found them to be correct and complete and no information material to this form has been suppressed. He has to further certify that the records have been maintained property prepared, signed by the required officers of the company and maintained as per the relevant provisions of the Companies Act and were found to be in order.

     Rule 21 provides that every company covered under rule 2 shall file half yearly return with the Registrar in Form NDH-3 along with such fee as provided in Companies (Registration Offices and Fees) Rules, 2014 within thirty days from the conclusion of each half year duly certified by a company secretary in practice or chartered accountant in practice or cost accountant in practice.  The Cost Accountant in practice is to verify the particulars in the said form including the attachments from the original records and to certify them as true, correct and complete and no material information has been suppressed. He is to further certify that the records have been maintained properly prepared, signed by the required officers of the company and maintained as per the relevant provisions of the Companies Act and were found to be in order.  All the required attachments have been completely and legibly attached to this form. Further he is to give declaration that he shall be liable for action under Section 448 of the Act for wrong certification if any found at any stage.

Registered valuers

     Section 247 deals with registered valuers.  Section 247 (1) provides that where a valuation is required to be made in respect of any property, stocks, shares, debentures, securities or goods will or any other assets or net worth of a company or its liability under the provision of this Act, it shall be valued by a person having such qualifications and experience as may be prescribed and appointed by the audit committee or in its absence by the Board of Directors of that company. Rules for this purpose are to be notified. Cost Accountant will be definitely included in the list of qualified professional for acting as a valuer. The Institute is to take care of in this regard.

Appearance before Tribunals

     The new Act replaces the Company Law Board and to establish National Company Law Tribunal and National Company Law Appellate Tribunal.  Section 442 of the Act enables the Practicing Cost Accountant to appear before the Tribunal as well as before the Appellate Tribunal.  The Tribunal to be established will take over the functions of the High Court in the matter of merger, amalgamations, winding up, revival of sick companies,  etc., By this the practicing area is going to be wide enough for the Cost Accountant in practice.

Mediation and Conciliation

     Section 442 provides that the Central Government shall maintain a panel of experts to be called as Mediation and Conciliation panel consisting of such number of experts having such qualifications as may be prescribed for mediation between the parties during the pendency of any proceedings before the Central Government or the Tribunal or the Appellate Tribunal under this Act.  Rule for this purpose is yet to be made. However we may have hope that the role of Cost Accountants will be there.

Penal Provisions

     The new Act provides penalty for professionals. The penal provisions in respect of Cost Accountant are discussed in the coming paras:

Cost Audit

     If any default is made in complying with the provisions of Section 148-

• The company shall be punishable with fine which shall not be less than ₹ 25,000/-  but which may extend to ₹ 5 lakhs and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than ₹ 10,000/-  but which may extend to Re.1 lakh or with both;
• The Cost auditor of the company who is in default shall be punishable with fine which shall not be less than ₹ 25,000/- but which may extend ₹ 5 lakhs.
• If the Cost Auditor has contravened such provisions knowingly or willfully with the intention to deceive the company or its shareholders or creditors or tax authorities, he shall be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than Re.1 lakh which may extend up to ₹ 25 lakhs.  Further the Cost Auditor shall be liable to refund the remuneration received by him to the company and pay damages to the company, statutory bodies or authorities or to any other persons for loss arising out of incorrect or misleading statements of particulars made in his audit report.

Annual return

     Section 92 (6) provides that if a Cost Accountant in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made there under, he shall be punishable with fine which shall not be less than ₹ 50,000/- but which may extend to ₹ 5,00,000/-;

Auditing

      Section 143 deals with the powers and duties of auditors and auditing standards. Section 143 (15) provides that if any auditor, cost accountant or company secretary in practice do not comply with the provisions of sub-section(12), he shall be punishable with fine which shall not be less than ₹ 1,00,000/- but which may extend to ₹ 25,00,000/-.  Section 143(12) provides that notwithstanding anything contained in this Section, if an auditor of a company, in the course of the performance of his duties as auditor, has reasons to believe that an offence involving fraud is being or has been committed against the company by officers or employees of the company, he shall immediately report the matter to the Central Government in Form ADT – 4 within 60 days from his knowledge after following the procedure indicated in Rule 13 of Companies (Audit and Auditors) Rules, 2014. But in the form ADT – 4, only the Chartered Accountant is indicated who is to give the verification.

Nidhi Companies

     Section 448 provides that if the Cost Accountant in practice for the purposes of certification in NDH-3 under Nidhi Rules, 2014 makes a statement which is false in any material particulars, knowing it to be false or which omits any material fact, knowing it to be material shall be liable under Section 447 which deals with punishment for fraud. According this section the Cost Accountant in practice shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to 10 years and shall also be liable to fine which shall not be less than the amount involved in the fraud but which may extend to 3 times the amount involved in the fraud.

Company Liquidator

     Since the Cost Accountant may act as a liquidator, it is necessary to know the penal provisions relating to Company liquidator.

     Section 302 deals with dissolution of company by Tribunal. Section 302 (4) provides that the Company Liquidator makes a default in forwarding a copy of the order within the period specified the Company Liquidator shall be punishable with fine which may extend to ₹ 5,000/- for every day during which the default continues.

     Section 314 deals with the powers and duties of Company Liquidator in voluntary winding up. Section 314 (8) provides that if the Company Liquidator fails to comply with the provisions of this section, except sub-section (5) he shall be punishable with fine which may extend to ₹ 10,00,000/-.

     Section 316 deals with the Company Liquidator to submit report on progress of winding up. Section 316 (2) provides that if the Company Liquidator fails to comply with the provisions of sub-section (1), he shall be punishable in respect of each such failure, with fine which may extend to ₹ 10,00,000/-;

     Section 318 deals with final meeting and dissolution of company. Section 318 (8) provides that if the Company Liquidator fails to comply with the provisions of this section he shall be punishable with fine which may extend to ₹ 1,00,000/-;

     Section 344 deals with the statement that company is in liquidation. Section 344 (2) provides that if a company contravenes the provisions of this section, every officer of the company,  the Company Liquidator and any receiver or Manager, who willfully authorizes or permits the non-compliance, shall be punishable with fine which shall not be less than ₹ 50,000/- but which may extend to ₹ 3,00,000/-.

     Section 348 deals with the information as to pending liquidations. Section 348(7) provides that if a Company Liquidator makes willful default in causing the statement audited by a person who is not qualified to act as an auditor of the company, the Company Liquidator shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to ₹ 1,00,000/-.

Adjudication of penalties

     Section 454 of the Companies Act deals with the Adjudication of penalties. The said section provides that the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government, not below the rank of Registrar, as adjudicating officers for adjudging penalty under the provisions of the Act  For this purpose the Government made rule named ‘The Companies (Adjudication of Penalties) Rules, 2014. The Company Secretary in practice may be appearing before the Registrar in such adjudication proceedings as the authorized representative of the person or company concerned. 

     Appeal lies against the order of the Adjudicating Authority to the Regional Director. Appeal proceedings may also be handed by the Company Secretary in practice for the person or company concerned.

Conclusion

     The discussion in this article is not complete one since many rules are yet to be notified by the Government which may take some time.  However the role of Cost Accountant in the new regime is encouraging and flourishing. It is appreciable that the Institute has taken timely action stimulating the Government to appoint an Expert Committee to resolve the issues prevailing in Cost Accountancy profession and also in appointing National Advisory Committee to give its reports to the Expert Committee. It is also expected that the Institute may conduct various programs to update the knowledge of the Cost Accountants.