Laws on Appointment, Resignation and Removal of Statutory Auditors

Laws on Appointment, Resignation and Removal of Statutory Auditors. Overview:An Auditor is a self-reliant professional person who is capable to conduct an audit. An Auditor is answerable for analysing the legitimacy and authenticity of a company's financial statements.
 
Section 138 to 148 of the Companies Act 2013 related to accounts, audit and auditors, as companies are indispensable to file financial reports with the ROC for each financial year, thus these should be thoroughly examined and evaluated before compliance, and here the auditor carries out such duty.
 
A person will be competent to be appointed as an auditor of a company only if he is a certified Chartered Accountant and where a firm is designated as an auditor of a company; only the partners who are Chartered Accountants are permitted to take action and sign on favour of the firm.
 
Section 139 - Appointment of Statutory Auditor:
 
Section 139 of the Companies Act, 2013 states that content to the section of this Chapter, every company shall, at the 1st AGM, elect an individual or a firm as an auditor who shall clasp office from the denouement of that meeting till the denouement of its 6th AGM and thereafter till the denouement of every 6th meeting and the method and strategy for selection of auditors by the members of the company at such meeting shall be such as may be prescribed:
 
No listed company or a corporation associated with such category or categories of firms as could also be licensed shall appoint or re-appoint
 
(a) a person as an auditor for higher than 1 term of five consecutive years; and
 
(b) an audit firm as auditor for higher than 2 terms of five consecutive years:
 
As stated by Rule 5 and 6 of Companies (Audit and Auditor) Rules, 2014, the Group of Companies who are necessary to follow the provisions of Section 139 are as follows:
 
For the needs of sub-section (2) of section 139, the category of firms shall mean the subsequent categories of firms excluding one-person firms and little companies: -
 
(a) all unlisted public firms having paid-up share capital of rupees 10 crores or more;
 
(b) all private limited firms having paid-up share capital of rupees fifty crores or more;
 
(c) all firms having paid up share capital of below threshold limit mentioned in (a) and (b) on top of, but having public borrowings from FI, banks or public deposits of rupees fifty crores or lots of.
 
1st Auditor: Each company within 30 days of enrollment of the company during the AGM or within 90 days in EGM by the board of Directors. The first Auditor (or the Auditing firm) elected will hold office from the denouement of the meeting.
 
In Government companies, the 1st auditor would be elected by the CAG within 60 days from the date of enrolments of the company and where it fails to elect the auditor within the prescribed period, the board of directors would elect such auditor within 30days.
 
Documents Required: For Appointment of Statutory auditor
 
A drafted consent from the Auditor: Consent is a validation that the person or firm meeting the criteria provided under Section 141 of the given Act, require to be submitted before an election.
Notice of Appointment: Company will issue an appointment note to the auditor and ADT-1 is needed to be stuffed inside 15 days of the meeting wherein the auditor is appointed.
 
Checklist for Appointment of Auditor:

Hold the Board meeting within thirty days of registration and elect the auditors as stated under Section 139(6) of the act.

Approval of Auditors needs to be obtained and an assertion that they're eligible for appointment and their appointment is among the ceiling limit.

Appointment letter needs to issue to the Auditors within fifteen days.

File form ADT1 within fifteen days of the date of appointment

A. Just in case the Board doesn't appoint auditors among thirty days a GM are conducted within ninety days for appointment of Auditors

File MGT14 among thirty days of passing SR

File ADT1 among fifteen days from the date of appointment

Resignation of Statutory Auditor -
Section 140(2) of CA 2013, the Auditor who has abdicated from the company must file E-form ADT-3 with the ROC in 30 days from the date of abdication.
 
If the auditor does not adhere to sub-section (2), he or it shall be punishable with a fine which shall not be lower than fifty thousand rupees but which may hold out to five lakh rupees.
 
Documents Required: Resignation of Statutory Auditor:

Resignation letter from the resigning Auditor stating the ground and date of abdication.

The resigning Auditor will convey to the Company his abdication within 30 days of his abdication.

File E-form ADT-3 with the ROC in 30 days of resignation.

File E-form MGT-14: -in a period of 30days from the date of EGM in which abdication of the auditor was received, by the Company

File E-form ADT-1: - in 15 days from the appointment of a recent auditor by the company.

Section 140 (2) of CA, 2013: - The auditor who has abdicated from the company shall file a statement in stated form with the company and the Registrar in thirty days from the date of resignation and in case of Companies under Section 139(5), the auditor shall file such statement with the CAG, indicating the ground and other matter as may be applicable concerning his resignation. Section 140 (3) if the auditor does not observe subsection (2), he or it shall be punishable with a fine which shall not be lower than fifty thousand rupees but which may hold out to five lakh rupees.
 
Section 139(8) of CA 2013 - Casual Vacancy
 
I. In case of a Company besides a company whose accounts are liable to audit by an auditor selected by the CAG, it will be filled by the BOD within 30 days, but if such casual vacancy is a consequence of the resignation of an auditor, such appointment shall also be ratified by the Company at a General meeting hold within 3 months of the recommendation of the Board and he shall hold the office till the wrap up of the next AGM.
 
II. In the case of a Company whose account is vulnerable to audit through an auditor appointed through the CAG, it'll be crammed through the CAG within 30 days.(If CAG does now no longer fill the said emptiness within the stated length, the BOD shall fill the identical emptiness in a length of subsequent thirty days)
Checklist for Resignation of Statutory Auditor: -

The Auditor shall send to the Company his/her Resignation Letter in conjunction with form ADT-3 (as a file by him/her with the Registrar of the Companies)

the company can thenceforth conduct a board meeting to just accept the resignation of the Auditor.

the company shall then fill the casual vacancy as arise by the resignation of the auditor and can approve the Notice of the Extra-ordinary Meeting of the company, either in higher than the mentioned meeting itself or it'll decision another board meeting

Hold EGM and approve Appointment of recent Auditor.

File form MGT-14 with the ROC in thirty days from the Date of EGM.

File form ADT-1 for the appointment of a recent auditor within fifteen days from the date of his appointment.

Removal of Auditor -
Section 140(1) of the CA, 2013, The auditor appointed under section 139 can be expulsed from his workplace earlier than the cessation of his period only by passing a special resolution of the company, after obtaining the prior consent of the Central Government in that behalf in the stated manner.
As declared by Rule 7(1) of Company (Audit and Auditors) Rules, 2014, the application made to the CG for removal of the auditor are in form ADT-2 and shall be accompanied by fees as stipulated for this purpose under the Companies (Registration Offices and Fees) Rules, 2014.
Rule 7(2) Company (Audit and Auditors) Rules, the application is made to the CG (powers delegated to Regional Director) within 30 days of the Board resolution.
 
Forms involved in the removal of auditor -

MGT-14 - for filing the special resolutions passed at AGM.

ADT-2 -The application for the expulsion of auditor before the cessation of a term is ought to made in Form ADT-2 to Central Government.

RD-1- following documents are needed to be connected with e-form RD-1: -

The basis of seeking removal of auditor:

Whether the accounts are certified throughout the last three years

Date of selection of that auditor and SRN of notice of that appointment

Whether audit fee would be paid or not.

Any different attachment/information as seeing work by Board of company.

Checklist for Removal of Auditor -
If a company isn't glad about the services of the statutory auditor the corporate will begin a method for removal of the auditor. the subsequent method is required: –

Deciding the board meeting alongside the agenda to be mentioned in the meeting.

Auditors must be given a fair opportunity of being listened to.

Drafting of the petition to be created to Regional Director (deleted by Central government by MCA notification dated twenty-first could, 2014)

Holding of BM and considering the petition

Filing of the petition to Regional Director in ADT-2 as attachment to RD-1 within thirty (30) days from the passing of Board resolution.

when obtaining approval from Regional Director fixing the BM for taking the note of same and approving in addition to fixing the Extra-ordinary General Meeting of members/ Annual General Meeting for removal of auditor before their term inside sixty (60) days.

Holding of Extra-ordinary General Meeting of members/ Annual General Meeting and passing of the special resolution for same.

Filling of MGt-14, the Special resolution is filled inside thirty (30) days from the Special resolution.

Section 147 (Punishment to the Company and the Auditor) of The CA 2013, following are the action taken by the department: –

The company shall be punishable with a fine which shall not be lower than 25000 Rs but which may hold out to 500000 rupees and every officer of the company who is in delinquency be about too chargeable with imprisonment for a term which may hold out to 1 year or with fine which shall not be lower than 10000 rupees but which may extend to 100000 Rs, or with both.

If an auditor of a company contravenes any of the sections the auditor will be chargeable with a pleasant which shall now no longer be decrease than 25000 rupees but which may hold out to 500000 rupees or 4 times the remuneration of the auditor, whichever is less.

How Can Compliance Calendar LLP help?  
If you just read the above article, it would have been clear to you that one needs to comply with auditor appointment, resignation and removal compliance and to make apt compliance it is advisable to engage someone good at company law. Compliance Calendar LLP have an ardent team of skilled professionals who have relevant expertise to assist you in understanding and advising the most effective legal framework from the corporate law that is impacting your business. If you have any queries, email us at info@ccoffice.in or WhatsApp/Call at 9988424211

Laws on Appointment, Resignation and Removal of Statutory Auditors

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