[First Notification No GSR 246 (E) dated 31 Mar 2014 as amended by, GSR 722(E) dated 14 Oct 2014, GSR 972 (E) dated 14 Dec 2015, GSR 307 (E) dated 30 Mar 2017, GSR 621 (E) dated 22 Jun 2017, GSR 174 (E) dated 16 Feb 2018, GSR 432 (E) dated 7 May 2018]
In exercise of powers conferred by sub-sections (1), (2) and (4) of section 139, sub-sections(1) and (2) of section 140, sub-section (3) of section 141, sub-sections (2), (3), (8) and (12) of section 143, sub-section(3) of section 148 read with sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013) and in supersession of the Companies (Central Government’s) General Rules and Forms, 1956 in so far as they relate to matters covered under these rules, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely –
- These rules may be called the Companies (Audit and Auditors) Amendment Rules, 2014.
- They shall come into force on the 1st day of April, 2014.
- In these rules, unless the context otherwise requires —
a)Act means the Companies Act, 2013
b)Annexure means the Annexure enclosed to these rules;
c)Fees means the fees as specified in the Companies (Registration Offices and Fees) Rules, 2014
d)Form or e-Form means a form set forth in Annexure to these rules which shall be used for the matter to which it relates
e)Section means the section of the Act.
- Words and expressions used in these rules but not defined and defined in the Act or in the Companies (Specification of Definitions Details) Rules, 2014, shall have the same me
- In case of a company that is required to constitute an Audit Committee under section 177, the committee, and, in cases where such a committee is not required to be constituted, the Board, shall take into consideration the qualifications and experience of the individual or the firm proposed to be considered for appointment as auditor and whether such qualifications and experience are commensurate with the size and requirements of the company.
Provided that while considering the appointment, the Audit Committee or the Board, as the case may be, shall have regard to any order or pending proceeding relating to professional matters of conduct against the proposed auditor before the Institute of Chartered Accountants of India or any competent authority or any Court.
- The Audit Committee or the Board, as the case may be, may call for such other information from the proposed auditor as it may deem fit.
- Subject to the provisions of sub-rule (1), where a company is required to constitute the Audit Committee, the committee shall recommend the name of an individual or a firm as auditor to the Board for consideration and in other cases, the Board shall consider and recommend an individual or a firm as auditor to the members in the annual general meeting for appointment.
- If the Board agrees with the recommendation of the Audit Committee, it shall further recommend the appointment of an individual or a firm as auditor to the members in the annual general meeting.
- If the Board disagrees with the recommendation of the Audit Committee, it shall refer back the recommendation to the committee for reconsideration citing reasons for such disagreement.
- If the Audit Committee, after considering the reasons given by the Board, decides not to reconsider its original recommendation, the Board shall record reasons for its disagreement with the committee and send its own recommendation for consideration of the members in the annual general meeting and if the Board agrees with the recommendations of the Audit Committee, it shall place the matter for consideration by members in the annual general meeting.
- The auditor appointed in the annual general meeting shall hold office from the conclusion of that meeting till the conclusion of the 6th annual general meeting, with the meeting wherein such appointment has been made being counted as the first meeting.
Provided that such appointment shall be subject to ratification in every annual general meeting till the 6th such meeting by way of passing of an ordinary resolution.
- The auditor appointed under rule 3 shall submit a certificate that –
- the individual or the firm, as the case may be, is eligible for appointment and is not disqualified for appointment under the Act, the Chartered Accountants Act, 1949 and the rules or regulations made there under
- the proposed appointment is as per the term provided under the Act
- the proposed appointment is within the limits laid down by or under the authority of the Act;
- the list of proceedings against the auditor or audit firm or any partner of the audit firm pending with respect to professional matters of conduct, as disclosed in the certificate, are true and correct.
- the notice to Registrar about appointment of auditor under fourth proviso to sub-section (1) of section 139 shall be in Form ADT-1.
- For the purposes of sub-section (2) of section 139, the class of companies shall mean the following classes of companies excluding one person companies and small companies –
a)All unlisted public companies having paid up share capital of Rs. 10 crores or more
b)All private limited companies having paid up share capital of Rs. 50 croresmore or
c)All companies having paid up share capital of below threshold limit mentioned in (a) and (b) above, but having public borrowings from financial institutions, banks or public deposits of Rs. 50 crores or more
- The Audit Committee shall recommend to the Board, the name of an individual auditor or of an audit firm who may replace the incumbent auditor on expiry of the term of such incumbent.
- Where a company is required to constitute an Audit Committee, the Board shall consider the recommendation of such committee, and in other cases, the Board shall itself consider the matter of rotation of auditors and make its recommendation for appointment of the next auditor by the members in annual general meeting.
- For the purpose of the rotation of auditors- in case of an auditor (whether an individual or audit firm), the period for which the individual or the firm has held office as auditor prior to the commencement of the Act shall be taken into account for calculating the period of 5 consecutive years or 10 consecutive years, as the case may be
- The incoming auditor or audit firm shall not be eligible if such auditor or audit firm is associated with the outgoing auditor or audit firm under the same network of audit firms. Explanation I – For the purposes of these rules the term “same network” includes the firms operating or functioning, hither to or in future, under the same brand name, trade name or common control Explanation II – For the purpose of rotation of auditors – a break in the term for a continuous period of 5 years shall be considered as fulfilling the requirement of rotation if a partner, who is in charge of an audit firm and also certifies the financial statements of the company, retires from the said firm and joins another firm of chartered accountants, such other firm shall also be ineligible to be appointed for a period of 5 years.
- Where a company has appointed two or more individuals or firms or a combination thereof as joint auditors, the company may follow the rotation of auditors in such a manner that both or all of the joint auditors, as the case may be, do not complete their term in the same year. Illustration explaining rotation in case of individual auditor – Illustration 1 Illustration explaining rotation in case of audit firm – Illustration 2
- The application to the Central Government for removal of auditor shall be made in Form ADT-2 and shall be accompanied with fees as provided for this purpose under the Companies (Registration Offices and Fees) Rules, 2014.
- The application shall be made to the Central Government within 30 days of the resolution passed by the Board.
- The company shall hold the general meeting within 60 days of receipt of approval of the Central Government for passing the special resolution.
For the purposes of sub-section (2) of section 140, when an auditor has resigned from the company, he shall file a statement in Form ADT-3.
In case of criminal liability of any audit firm, the liability other than fine shall devolve only on the concerned partner or partners, who acted in a fraudulent manner or abetted or, as the case may be, colluded in any fraud
- For the purpose of proviso to sub-clause (i) of clause (d) of sub-section (3) ofsection 141, a relative of an auditor may hold securities in the company of face value not exceeding Rs. 1 Lakh
a)Provided that the condition under this sub-rule shall, wherever relevant, be also applicable in the case of a company not having share capital or other securities. b)Provided further that in the event of acquiring any security or interest by a relative, above the threshold prescribed, the corrective action to maintain the limits as specified above shall be taken by the auditor within 60 days of such acquisition or interest.
- For the purpose of sub-clause (ii) of clause (d) of sub-section (3) of section 141, a person who or whose relative or partner is indebted to the company or its subsidiary or its holding or associate company or a subsidiary of such holding company, in excess of Rs. 5 Lakh shall not be eligible for appointment.
- For the purpose of sub-clause (iii) of clause (d) of sub-section (3) of section 141, a person who or whose relative or partner has given a guarantee or provided any security in connection with the indebtedness of any third person to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of Rs. 1 Lakh shall not be eligible for appointment.
- For the purpose of clause (e) of sub-section (3) of section 141, the term “Business Relationship” shall be construed as any transaction entered into for a commercial purpose, except –
1)commercial transactions which are in the nature of professional services permitted to be rendered by an auditor or audit firm under the Act and the Chartered Accountants Act, 1949 and the rules or the regulations made under those Acts
2)commercial transactions which are in the ordinary course of business of the company at arm’s length price like sale of products or services to the auditor, as customer, in the ordinary course of business, by companies engaged in the business of telecommunications, airlines, hospitals, hotels and such other similar businesses.
For the purposes of clause (i) of sub-section (3) of section 143, for the financial years commencing on or after 1st April, 2015, the report of the auditor shall state about existence of adequate internal financial controls with reference to financial statements and its operating effectiveness.
Provided that auditor of a company may voluntarily include the statement referred to in this rule for the financial year commencing on or after 1st April, 2014 and ending on or before 31st March, 2015.
The auditor’s report shall also include their views and comments on the following matters, namely –
Whether the company has disclosed the impact, if any, of pending litigations on its financial position in its financial statement.
The auditor’s report shall also include their views and comments on the following matters, namely –
- Whether the company has disclosed the impact, if any, of pending litigations on its financial position in its financial statement.
- Whether the company has made provision, as required under any law or accounting standards, for material foreseeable losses, if any, on long term contracts including derivative contracts;
- Whether there has been any delay in transferring amounts, required to be transferred, to the Investor Education and Protection Fund by the company
- Whether the company had provided requisite disclosures in its financial statements as to holdings as well as dealings in Specified Bank Notes during the period from 8th November, 2016 to 30th December, 2016 and if so, whether these are in accordance with the books of accounts maintained by the company
Rule 12 - Duties and powers of the company’s auditor with reference to the audit of the branch and the branch auditor
- For the purposes of sub-section (8) of section 143, the duties and powers of the company’s auditor with reference to the audit of the branch and the branch auditor, if any, shall be as contained in sub-sections (1) to (4) of section 143.
- The branch auditor shall submit his report to the company’s auditor.
- The provisions of sub-section (12) of section 143 read with rule 12 hereunder regarding reporting of fraud by the auditor shall also extend to such branch auditor to the extent it relates to the concerned branch.
- If an auditor of a company, in the course of the performance of his duties as statutory auditor, has reason to believe that an offence of fraud, which involves or is expected to involve individually an amount of Rs. 1 Crore or above, is being or has been committed against the company by its officers or employees, the auditor shall report the matter to the Central Government.
- The auditor shall report the matter to the Central Government as under –
(a) the auditor shall report the matter to the Board or the Audit Committee, as the case may be, immediately but not later than 2 days of his knowledge of the fraud, seeking their reply or observations within 45 days;
(b) on receipt of such reply or observations, the auditor shall forward his report and the reply or observations of the Board or the Audit Committee along with his comments (on such reply or observations of the Board or the Audit Committee) to the Central Government within 15 days from the date of receipt of such reply or observations;
(c) in case the auditor fails to get any reply or observations from the Board or the Audit Committee within the stipulated period of 45 days, he shall forward his report to the Central Government along with a note containing the details of his report that was earlier forwarded to the Board or the Audit Committee for which he has not received any reply or observations;
(d) the report shall be sent to the Secretary, Ministry of Corporate Affairs in a sealed cover by Registered Post with Acknowledgement Due or by Speed Post followed by an e-mail in confirmation of the same;
(e) the report shall be on the letter-head of the auditor containing postal address, e-mail address and contact telephone number or mobile number and be signed by the auditor with his seal and shall indicate his Membership Number; and
(f) the report shall be in the form of a statement as specified in Form ADT-4.
- In case of a fraud involving lesser than the amount specified in sub-rule(1), the auditor shall report the matter to Audit Committee constituted under section 177 or to the Board immediately but not later than 2 days of his knowledge of the fraud and he shall report the matter specifying the following:-(a) Nature of Fraud with description;
(b) Approximate amount involved; and
(c) Parties involved
- The following details of each of the fraud reported to the Audit Committee or the Board under sub-rule (3) during the year shall be disclosed in the Board’s Report:-
(a) Nature of Fraud with description;
(b) Approximate Amount involved;
(c) Parties involved, if remedial action not taken; and (d) Remedial actions taken.
- The provision of this rule shall also apply, mutatis mutandis, to a Cost Auditor and a Secretarial Auditor during the performance of his duties under section 148 and section 204 respectively.
For the purpose of sub-section (3) of section 148 —
- in the case of companies which are required to constitute an audit committee
- the Board shall appoint an individual, who is a cost accountant, 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 under (i) shall be considered and approved by the Board of Directors and ratified subsequently by the shareholders
- in the case of other companies which are not required to constitute an audit committee, the Board shall appoint an individual who is a cost accountant or a firm of cost accountants in practice as cost auditor and the remuneration of such cost auditor shall be ratified by shareholders subsequently
Within 15 days of the meeting in which the auditor is appointed
Within 30 days of the resolution passed by the Board
Within 30 days from the date of resignation
Immediately but not later than 60 days of his knowledge and after following the procedure as prescribed in Rule 13