CS Ankur Garg

As we all are aware that there is a provision in Company Law for intimation to Registrar of Companies regarding appointment of statutory auditor in the Annual General Meeting by shareholders. This intimation is an annual intimation and it was also there in erstwhile Companies Act, 1956 and continued in Companies Act, 2013.

However few changes have been made by the regulators through Companies Act, 2013, w.r.t. the Intimation procedure, timelines for filing intimation along with the person liable to file such intimation with Registrar of Companies. It is pertinent to note that appointment of statutory auditor is governed by section 139 of the Companies Act, 2013.

Appointment of Auditor in Companies Act, 2013

As per section 139 of the Companies Act, 2013, every company shall, at the first Annual General Meeting, appoint an individual or a firm as an auditor who shall hold office from the conclusion of that meeting till the conclusion of its sixth annual general meeting and thereafter till the conclusion of every sixth meeting.

Further it shall be duty of the Company to place the matter relating to such appointment for ratification by members at every Annual General Meeting.

Before appointment Auditor shall be liable to provide the written consent to the Company for such appointment, along with a certificate to the effect that the appointment, if made, shall be in accordance with the prescribed conditions.

INTIMATION TO ROC ABOUT APPOINTMENT OF STATUTORY AUDITOR

Under Companies Act, 1956, it was duty of the Auditor to file form 23B with ROC regarding his appointment as Statutory Auditor whereas Under Companies Act, 2013, it is duty of the Company to file form ADT.1 through E-form GLN 2 with ROC regarding the appointment of Statutory Auditor. Please find below detailed analysis:

  1. Position under erstwhile Companies Act, 1956

Intimation as to appointment

As per section 224(1) of the Companies Act, 1956, a company is required to give intimation of appointment to every auditor(s) so appointed within seven days of the appointment as desired by section 224(1). The intimation may be given in form of a letter on the letter head of the company by a responsible officer of the company.

Obligation on the auditor to give intimation to the Registrar

Every auditor appointed under section 224(1) by a company in Annual General Meeting shall inform the Registrar in writing that he has accepted, or refused to accept the appointment [Section 224(1B)]. The information shall be given in e-Form 23B within a period of thirty days from the date of appointment in the AGM.

  1. Position under Companies Act, 2013

Companies Act, 2013, casts the duty on the Company to inform the auditor concerned of his or its appointment, and also file a notice of such appointment with the Registrar within fifteen days of the meeting in which the auditor is appointed.

Hence, now as per section 139(1) read with Rule 4(2) of Companies (Audit and Auditors) Rules, 2014, appointment of Auditor at the Annual General Meeting is to be intimated by the Company to the Registrar of Companies within 15 days of appointment through filing of form ADT.1. Form ADT.1 is to be filed through E-form GLN.2 as directed by MCA through its General Circular No. 9/2014 dated April 25, 2014.

Intimation to ROC in case of appointment of First Auditor under Companies Act, 2013:

It is worth noting here that only in respect of the auditors appointed under section 139(1) Company is under an obligation to give notice of appointment to the Registrar in Form No. ADT.1 through E-form GLN.2. Therefore, in case of appointment of first auditors by the Board of directors of a company pursuant to section 139(6), Company is under no obligation to give notice of appointment of First Auditor to the Registrar.

NON-FILING OF FORM 23B FOR FINANCIAL YEAR 2013-14

I have observed that many companies have not filed form 23B last year for FY 2013-14 when they appoint Auditor in the AGM and now they are concerned what to be filled in form 23AC and 23ACA in place of SRN No. of form 23B.

I have analyzed this issue and my opinion is mentioned below.

“Kindly appreciate that Form 23B has been discontinued by MCA now. So for Annual filing forms like 23AC and 23ACA for the FY 2013-14, it would not be possible to fill SRN of 23B, if you have not filed form 23B last year in respect of FY 2013-14.

As per section 224(1) of Companies Act, 1956, ideally Form 23B should have been filed last year by the Auditor after appointment of Auditor for FY 2013-14 in the AGM.

However, now as per new rule prescribed in section 139(1), Auditor appointed at the AGM is to be intimated by the Company to the ROC within 15 days of appointment through filing of form ADT.1.

Form ADT.1 is to be filed through E-form GLN.2. Kindly refer MCA General Circular No. 9/2014 dated April 25, 2014.

So the solution for non-filing of Form 23B for FY 2013-14 would be to file form ADT.1 through E-form GLN.2 with late fee in respect of FY 2013-14. In this case you can very much use the SRN of form GLN.2 filed in respect of FY 2013-14 when you prepare form 23AC and 23ACA for FY 2013-14.” I hope that the above suggestion would be of some help.

You may download new set of MOA and AOA as per Companies Act, 2013, from the link given below:

http://taxguru.in/company-law/download-format-moa-aoa-companies-act-2013.html

Disclaimer: This write up is intended to start academic discussion on few significant interpretations under Companies Act, 2013. It is not intended to be a professional advice and should not be relied upon for real time professional facts. Readers are advised to refer relevant provision of law before applying or accepting any of the point mentioned above. Author accepts no responsibility whatsoever and will not be liable for any losses, claims or damages which may arise because of the contents of this write up.

I am very hopeful that this write up would be of some help to understand the concepts in new Companies Act, 2013.

(CS Ankur Garg – Connect through Facebook )

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20 responses to “Intimation to ROC for Auditor appointment in Form ADT”

  1. Neeraj Bansal says:

    yes

  2. javed ali says:

    i need an auditor who can audit my company for last four years rest i would like to talk to you over phone my number is 9871246811. javed

  3. sweta sinha says:

    what is the meaning of first annual general meeting, is it after the enactment of sec 139 or what else?

  4. Diensh Sutariya says:

    i dont know about Form ADT-1. I am working with LTD company Balance Sheet for the F.Y. 2014-15 ( A.Y. 2015-16)filled by the auditor, Now CS who demand with me ADT-1 and SRN that actually i dont know about it for ROC filling. Can You Guide me. what i have to do?

    Thanks

  5. Sujit K Swain says:

    Sir, I had incorporate my co on 02/12/2014, but auditor appointment is not done till date, whearher their are any penality for delay filling of this. My cs says it will their wll be a fine of rs4000 approx, is it true? Please suggest.

  6. prajesh maskara says:

    what will be come for caculation of financial assets for nbfc companies as per rbi rules and regulation

  7. sagar says:

    Can ADT1 be ammended or cancelled is filled wrong or if we want make any updation?

  8. CA Ajay kumar sing says:

    My query is
    A Company incorporated as on 27.07.2012 has not filled roc-return for the FY 2012-13 and now decided file such return under CLSS-2014 scheme. My query is whether i have to file Form 23B for appointment of first Auditors.

    • HPP says:

      Form 23B is not applicable for first appointment of auditor. In the form it self the it is asked ” whether auditor is appointed in AGM”. The first auditor is generally appointed by board of directors. In case of not appointed – it goes to special meeting or AGM. Hence in case of first appointment by board it implies that for 23B is not applicable.

  9. HPP says:

    Whether form 23B required in case of first appointment for FY 2013-14 in case of companies formed in FY 2013-14 under Companies Act 1956? And if yes, then what do if not filed yet?

  10. HPP says:

    However in case of first appointment of auditor (for FY 2013-14) under Companies Act 1956; form 23B need not be filed. Pls confirm. (i.e. In case of companies formed in FY 2013-14). Kindly help.

  11. Nikita Jaiswal says:

    ADT-1, should be on the letter head of the company?????

  12. VINAY says:

    DEAR SIR,
    WE UNABLE TO FIND FORM GLN-2 IN MCA

    PLEASE HELP ME.

    REGARDS,
    VK PANDEY

  13. PANKAJ MITTAL says:

    form 23B can be filed now under CLSS scheme by paying only 25% extra fees for previous years

  14. S.K.Mishra says:

    Form 23B for appoinment of Auditor for F/Y 2013-14 has been continue from 16th August,2014 to 15th October,2014 and the Central Government in exercise of powers conferred under sections 403 and 450 of the Companies Act, 2013 has decided to introduce a Scheme namely “Company Law Settlement Scheme 2014” [CLSS-2014] condoning the delay in filing Form 20B, Form 21A, Forms 23AC, 23ACA, 23AC-XBRL and 23ACA-XBRL, Form 66,Form 23B with the Registrar, granting immunity for prosecution and charging a reduced additional fee of 25% of the actual additional fees payable as per sections 403 read with Companies (Registration Offices and Fees) Rules, 2014 for filing those belated documents under the Companies Act, 1956/2013

  15. Prashsnt Sharma says:

    Form 23B is available for filing from 16th august along with CLSS benefit’s

  16. CA Rahul Jain says:

    In case of reappointment of auditor Intimation to ROC is required or not ?

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