Nuggets of Learning from Fali S Nariman's... "The State of The Nation"

Contrasting Provisions in the Constitution of India

The Constitution of India has various contradictions, embedded in it. One such contradiction is, while it creates 'equality before law' as a fundamental right', it also keeps room available for any reasonable law which may favour on sect, class or group of its citizens.

One such example could be : While the Constitution of India guarantees its citizens ‘equality before law’ there have been several amendments to bring forth some exceptions to the same. While the Constitution as originally promulgated had clearly defined the beneficiaries of the said benefits of exception there were several amendments at later date which carved out some more exceptions to the said fundamental right.

Preferential treatment for Women and Children was one such move, which tried to give additional support/benefits or preferential treatment to women and children.

An example could be the 2005 amendment to the Hindu Succession Act which gave equal rights to the daughters with sons in Mitakshara Coparcenery Properties. There were a few High Court orders which had ruled that partition decrees passed before the said amendment which are still in execution will not be affected by the said amendment, the Supreme Court vide its order in Prema VS Nanje Gawda and others, 2011 (6), SCC 462 overruled the same.

It is interesting to observe that while the amendments to the Constitution and various laws seem to create an exception to the rule of ‘equality’, the aim of all such laws/amendments is to bring everyone on the same level so that the ‘oppressed/exploited’ get their due. In a way, therefore, these amendments are meant to bring ‘equality’ and hence are in line with the basic intent of the Constitution.

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Annual Return: [Contributed by Mr. M.K. Apte, Practicing Company Secretary, Indore (M.P.)]

ANNUAL RETURN:

The provisions relating to Annual Return are contained in Section 92 of the Companies Act, 2013. It is an important document, designed to provide information to all the interested persons in the company i.e. stakeholders. The return contains the information relating to the company, its promoters, members, meetings and remuneration of the directors and key managerial personnel. It is the intention of the law makers to improve the corporate governance and empower shareholders. It is a framework based on self-regulation with enhanced disclosures and accountability on the part of the companies and its management. Every company shall prepare its annual return in FORM No: MGT-7.

The documents required to prepare annual return:

1. Memorandum and Articles of Association.
2. Statutory Registers:

                      (a)    Register of members;
                      (b)   Register of Directors;
                      (c)    Register of Directors’ shareholding;
                      (d)   Register of Key Managerial Personnel;
                      (e)   Register of Related Party Transactions;
                      (f)     Register of loans and advances;
                      (g)   Register of Charges
                      (h)   Register of Securities

      3.      Minutes of the meetings of Members; Board of Directors and their committees;

      4.      Attendance register of all the meeting

      5.      Forms and receipts filed with the Registrar of Companies;

      6.      Indebtedness certificate signed by Company Secretary /CFO of the company as well as the                   Bank statement.

      7.      Latest audited financial statements

      8.      Copy of notice of annual general meeting

      9.      List of shareholders as on 1^st April and 31^st March

     10.  List of share transfers during the year.

     11.  Any orders received by the company from the High Court or from any other regulatory body.

     12.  List of promoters.

     13.  If necessary, we can take Management Representation letter

On the basis of the above registers and information, the information mentioned in the annual return is to be checked.

Further, in Point No: XI in the Annual Return a company has to give disclosure as to whether company has made all the compliances and disclosures during the year.  The certifying officer selects YES, it means, the certifying authority is certifying that not only the matters mentioned in Annual Report but also the company has complied with all the provisions of the Companies Act, 2013 during the financial year. Further, the certifying authority is certifying that whatever mentioned in the annual return is true and no facts are concealed as per the original record maintained by the company. It means the certifying authority has checked all the original documents relating to the information mentioned in the annual return e.g. minutes, registers and other documents.

Provisions relating to authentication of an Annual Return:

Section 92(1) provides that the annual return shall be signed by a director and the company secretary or where there is no company secretary, by a company secretary in practice. In relation to One Person Company and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.

Further, in case of a listed company or a company having a paid up share capital of Ten Crores Rupees or more or turnover of fifty crore rupees or more, shall be certified by a company secretary in practice and the certificate shall be in Form No: MGT-8.

While certifying the annual return, it becomes necessary for a company secretary to certify the annual return only after scrutinizing and checking all the originals (copy of which may be obtained from the company and retained with him) and to find that the information submitted in the Annual Return matches with the originals.