howtobegin- secretarial audit · act state wise laws punjab shops and commercial establishments...
TRANSCRIPT
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How to Begin- Secretarial Audit(Compliance of All Aplicable Law )
By:- Mr. Pavan Kumar Vijay
March 13th, 2015
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Agenda• Secretarial Audit - Introduction &
Objective;• Need;• Types of Audit:• Beneficiaries of Secretarial Audit;• Companies Act, 2013- Secretarial Audit;• Compliance of All applicable Law – Legal
Part MR-3;• Secretarial Audit – The Processes;• Case Study;• Compliance Management System;• Conclusion;
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Secretarial AuditIntroduction & Objective
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Introduction Secretarial Audit is a process to check compliance with –• the provisions of various laws and Rules/Regulations/Procedures,• maintenance of books, records etc,• by an independent professional to ensure that the company has
complied with the legal and procedural requirements and also followeddue processes.
• The Board of Directors has to give explanation in the Board’s Report toevery qualification and observation or other adverse remark made by theSecretarial Auditor.
• So we can say that the Board of Directors has to ensure that thereshould be a system in the company through which ComplianceOfficer can Control on all compliances under all applicable Laws.
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Objective
To Check Report on Compliances
To Protect the interest of the Customers,
employees, society etc.
To avoid any unwarranted legal
actions by law enforcing agencies and other persons as well.
To Point out Non-compliances and
inadequate Compliances
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Need
Effective mechanism to ensure that the legal and procedural
requirements are duly complied with
Strengthen the image and goodwill of a company
It helps the investor in analyzing the compliance
level of companies
Secretarial Audit is an effective compliance risk
management tool
Provides a level of confidence to the KMP
Secretarial Audit is an effective governance
tool.
Secretarial Audit is to be on the principal of “prevention is better than cure”rather than post mortem exercise and to find faults.
Help Independent Director to check Compliance Level
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Types of Audit
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Types of Audit Particulars Statutory
Audit Internal Audit Cost Audit Secretarial Audit
Applicability All Companies
Such class of companiesas may me prescribedunder Section 138 of CA2013
Such class ofcompanies engaged inthe production of suchgood s or providingsuch services as maybe prescribed underSection 148 of the CA2013
Every Listed Company and a companybelonging to other class of companiesas may be prescribed under Section204 of the CA 2013
Auditor CA CA / CWA CWA (Practice) CS (Practice)
Scope of the Audit
Audit of theFinancial Recordsand FinancialStatement of theCompany
Involve s in the Audit ofday to day function andactivities of the company
Audit of the Cost records of the Company
Audit of the Secretarial Records andfind out the Compliance Record underGeneral Laws and Specific Lawapplicable on the Company Such as –-Corporate Law- Securities Law-FEMA-Labor Law-Environmental Laws-Secretarial Standard-Sector Specific Laws
Reporting Point Members Board of Directors Board of Directors Members ( with the Annexure toBoard Report)
Periodicity Yearly To be prescribed byAudit Committee / BOD
Yearly Yearly
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Beneficiaries of Secretarial Audit
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Beneficiaries
Investors / Shareholders
KMP & Board of Directors
Government Authorities / Regulators
Companies
Other Stakeholders
Society
Prospective Investors
Independent Directors
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Begin the New Era of
Secretarial Audit
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Companies Act 2013
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All Applicable Laws in Act
Sec 204 of Companies Act 2013:
Secretarial Audit for Bigger
Companies
..............................................................
(Mention the other laws as may be
applicable specifically to the company)
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Applicability – Present Rules
Applicable to
All Listed Companies and
Public Companies Paid up Capital of Rs. 50 Cr or more; Or
Turnover of Rs. 250 Cr or more
Secretarial Audit Report shall be annexed to the Board Report.
Board in their Report to explain in full any qualification or observationor other remarks made by PCS in his report.
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All Applicable Laws– Legal Part –Form MR - 3
Companies Act
SCRA
FEMA
Depositories Act
SEBI Regulation
Takeover Code
Buy Back
Delisting
UTP
ICDR
ESOP
Issued Debt Fund
Secretarial Standard
Listing Agreement
Board Structure
Notice, Agenda, Minutes , Notes
Minutes
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All Applicable Laws– System Part
Adequate System and Procedure
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All Applicable Laws– Audit Part
Non Compliance
Observation
Audit Qualification
Reservation
Adverse Remarks
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Do you usually confront with these??
How to identify the laws and
implement them
How to make compliances
on time?
How to do Audit and till what extent
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What is Compliance of all laws?
COMPLIANCE OF ALL LAW -As may be specifically applicable to the company (point (vi)
as per MR-3).
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Product
Profile
Factory
Location
Sector
Segment
Transaction
Employees
Compliance of ALL APLICABLE LAWS
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Taxation Laws
Corporate laws
Industrial & Labour Laws
10 or more 20 or more 25 or more 100 or more 1000 or more
Property laws
General Laws (Applicable to all companies)
(Based on Number of employees)
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Intellectual Property Laws
Foreign Exchange Laws
Custom Tax laws
Event Based Laws
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Public Sector
Undertakings
Unlisted Public
Companies
Listed Public
Companies
Different Corporate Structures
Structure Based Laws
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Sector Specific Laws
Manufacturing Trading Service
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Media And
Entertainment
Infrastructure,
Power And Telecom
IT Solutions
IT Enabled
Services And BPO
Textiles
Tourism And HotelCapital Market And
Its Intermediaries
Engineering and
ConstructionFMCG
Agriculture And
Food Processing
Capital Goods
Drugs, Pharma
And Healthcare
Banking And NBFC
Financial Services
Segment Wise Laws
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LabourWelfare Act
National Festival Holiday Act
Shops and Commercial Establishment Act
State Wise Laws
Punjab Shops and Commercial
Establishments Act, 1958
Punjab LabourWelfare Fund Act,
1965
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Global
Operations
Indian Operations
Different Geographical Laws
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Documents Required for Secretarial Audit
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IT Enabled
Services And BPO
Textiles
Tourism And HotelCapital Market And
Its Intermediaries
Drugs, Pharma
And Healthcare
Banking And NBFC
Financial Services
Documents Required
Filings with RoC / regulatory authorities
Disclosures / declarations
Auditor’s Report, Director’s Report
All Statutory Registers Minutes of meetings, attendance registers
Relevant approvals /correspondence
Statements for borrowingsand investments
Financial Statement
Observation / instruction of Judicial / Quai judicial
body / Regulators Notice / Disclosures
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Secretarial Audit – The Process
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Initial Discussion
Identify Scope and Objective
Received Management Representation Letter
Obtain formal engagement letter
Prepare check-lists and time schedule
Ascertain applicable laws
Secretarial Audit – The Process
Meeting with Team / Person Involved
Planning of Audit Programme
Informal discussion and understanding processes
Preparation of working papers
Observation and Summery of Findings
Audit Report
Corporate Dossier
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Secretarial Audit– Cement Industry
Case Study
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Case Study – Cement Industry
CEMENT INDUSTRY
• Public Limited Company
• Listed Company – BSE, NSE
• Manufacturing & Trading
• Exporting Company
• 10,000 No. of Employees (Approx.)
• Units Located at Bhubaneswar, Rajnagpur
Understanding The Company
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Identification of Applicable Laws
On the basis of General Corporate Information – Public Company, Listed at BSE, NSE
• Companies Act, 2013
• Income Tax Act, 1961
• Securities Contracts (Regulation) Act, 1956
• Depositories Act 1996
• SEBI (Insider Trading) Regulations, 2009
• SEBI (Substantial Acquisition of Shares & Takeovers) Regulations, 2011
• Listing Agreement
• FEMA
Case Study – Cement Industry
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Identification of Applicable Laws
On the basis of Sector – Manufacturing and Trading
•National Environment Policy
•Air (Prevention and Control of Pollution) Act, 1981
•Environment (Prevention of pollution control) Act, 1986
•Central Excise Act, 1944
•The Central Excise Tariff Act, 1985
•Water (Prevention and Control of Pollution) Act, 1974
•Water (Prevention and control of pollution) Cess Act, 1977
Case Study – Cement Industry
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Identification of Applicable Laws
On the basis of Type of Industry – Cement
•Cement (Quality Control) Order, 2003
•The Mines Act, 1952
•Hazardous Waste (Management Handling & Tran boundary Movement), 2008
•The Wildlife (Protection) Act, 1972
•Limestone and Dolomite Mines Labour Welfare Fund Act, 1972
•Mines and Minerals (Development and Regulation) Act, 1957
•Mineral Conservation and Development Rules, 1988
•Metalliferous Mine Regulations, 2012.
•Explosives Act, 2008
Case Study – Cement Industry
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Identification of Applicable LawsOn the basis of No. of Employees
•Employees’ Provident Funds & Miscellaneous Provisions Act, 1952
•Factories Act, 1948
•Payment of Gratuity Act, 1972
•Industrial Dispute Act, 1947
•Employees State Insurance Act, 1948
•Payment of Wages Act, 1936
•Minimum Wages Act, 1948 & Minimum Wages (Central) Rules, 1950
•Maternity Benefit Act, 1961
•The Boilers Act, 1923
•Labour Laws (Exemption from furnishing returns and maintaining registers by certain establishments) Act, 1988
•Indian Fatal Accidents Act, 1855
•The Contract Labour (Regulation and Abolition) Act, 1970
•Industrial Disputes Act, 1947
•Payment of Bonus Act, 1965
Case Study – Cement Industry
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Some Example of Sector Specific Law
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Oil & Petroleum Sector Specific Law Other then General Law these are the Specific Law which are required to be
check during Audit of “Oil & Petroleum Companies”•The Petroleum Act, 1934
•Petroleum and Minerals Pipelines (Acquisition of Right of User Inland) Act, 1962
• Explosives Act, 1884
•The Oil field ( Regulation & Development) Act , 1948
•Petroleum and Natural Gas Regulatory Board Act, 2006
•The Oil Industry( Development) Act 1974
•The Mines Act, 1952
•Mines and Minerals (Regulations and Development) Act, 1957
•The Territorial Waters, Continental Shelf, Exclusive Economic Zone And OtherMaritime Zones Act, 1976
• Offshore Areas Minerals (Development and Regulation) Act, 2002
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Company Secretary is primarily responsible to coordinate with
COMPLIANCE OF ALL LAWS
Therefore, WE ARE ANSWERABLE……
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BOARD OF DIRECTORS HAS TO ENSURE THAT THERE SHOULD BE PROPER IMPLEMENTING EFFECTIVE
COMPLIANCE MANAGEMENT SYSTEM IN THE COMPANY TO COMPLY WITH ALL APLICABLE LAWS BECAUSE ONLY BOARD IS ANSWERABLE TO EVERY
QUALIFICATION AND OBSERVATION OR OTHER ADVERSE REMARK MADE BY THE SECRETARIAL AUDITOR ,IN THE BOARD REPORT.
Compliance Management System
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Preparation for ImplementingCompliance Management System
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About CCM
Corporate
Compliance
Management
First Five Steps
Compliance Monitor
Compliance Scheduler
Alerts & Notifications
Task Performance
Online & Offline SupportForm Archives
Compliance statistics
Risk Assessment & Analysis
Report Wizard
Remediation
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CCM – First Five StepsSTEP I Corporate
Dossier
STEP II Questionnaire
STEP III Identification
Process
STEP IV Evaluation
Process
STEP V Compliance
Organ Structure
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STEP I Corporate Dossier
Understanding the Company
Company’s History &
BackgroundBusiness Set
upBoard of Directors
Capital Structure & Evolution
Management & Administration
buildup
Financial & Debt
Structure
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STEP II Questionnaire
For identifying various applicable laws
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STEP III Identification Process
• Companies Act• Taxation Laws
General Laws(Applicable to all companies)
• Listing Agreement• Takeover Regulations
Securities Laws(In case of Listed Company)
• Foreign Exchange Laws• Intellectual Property LawsEvent Based Laws
• Environment Act• Excise Act
Sector Specific Laws(Manufacturing & Trading Unit)
• Banking Companies (Acquisition And Transfer Of Undertakings) Act, 1980
• Banking Regulation Act, 1949
Segment Wise Laws(Banking Industry)
• Maharashtra State Tax on Professions, Trades, Callings and Employments Act, 1975
• Bombay Labour Welfare Fund Act, 1953
Area Specific Laws(Mumbai)
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STEP IV Evaluation Process
Evaluating the applicable laws after due identification process
Identification: FEMA, 1999
Evaluation : FEM ( Exports of goods & services) Regulations, 1999
[Event based Laws]
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Step V : Compliance Organisation Structure
CEO
Securities Law
Department
Executive
Executive
Company Law
Department
Executive
Executive
Taxation
Department
Executive
Executive
Compliance Officer
For Rights
Assignment
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Advantages of Corporate Compliance
• Easy Quantification of risk • Establishing Risk appetite • Identify and prioritize controls • Multitude of Compliance obligations • Building Strong Foundations • Extended Confidence to
– Investors – Independent Directors– Management
• Gaining Competitive Edge• Good Compliance System leads to• Excellence in Operations
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Can we do all this MANUALLY
with thousands of Law ??
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Let IT work for you………….
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Go for IT …
• Reduce time consumption in repetitive tasks.
• Devote more time on Strategic analysis, value additions and planning.
• Use online regulatory services.
• Make use of exhaustive databases, checklists, research papers
available online.
• Manage multiple tasks through IT.
• Use IT to shorten procedure and shift to STRATEGIES and PLANNING.
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“Adopt technology to defeat technology”
is the latest survival mantra ….
Go for IT …
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Effect of Technology
Easy Compliance
Impossible Non- Compliance
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Compliance Scheduler
Title Notice by
Occupier
Form
No
------
Due
Date
At least
15 days
before he
begins to
occupy or
use
Title Shareholding
Pattern
Form
No
Fixed Format
Due
Date
Within 21
days from the
end of each
Quarter
IncomeTax
Factories Act
CompaniesAct
Listing Agreement
Today This Week This Month Select Period
Title Return of
Income
Form
No
ITR-6
Due
Date
On or
before
31st
October
of the
assessme
nt year
Title Appointment
of Director
Form
No Form 29 & 32
Due
Date
Within 30 days
of
appointment
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Simplification: The Next MoveDeveloping Compliance Management Tools
Law wise
Period wise
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Triggering date & time
Triggering information input Organisation type, Capital deployed, Business type
Product profile
Effective Usability
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Elements of Effective Compliance Program
Customization of …..
At One Place
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ROLE OF Company Secretary in Corporate
Compliance Management??
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COMPANY POLICIES
OPERATIONAL PLANNING AND EXECUTION
DIR A DIR B DIR C DIR D DIR EBOARD OF
DIRECTORS
CORPORATEPLANNING
LEGALFINANCE AND
ACCOUNTSHUMAN
RESOURCESCORPORATE
COMMUNICATIONPRODUCTION
AND OPERATIONSMARKETING
INFORMATION TECHNOLOGY
DEPARTMENTS IN A COMPANY
EXTERNAL STAKEHOLDERSCompany Secretary
INVESTORS
GOVERNMENT ANDREGULATORS
SOCIETY
SUPPLIERS
CUSTOMERS
LENDERS
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Learn
The 80:20 Theory
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80%
20%
Filing forms & Applications
Registers & Returns
Checklists
Strategy
Management
Research
Present Focus of Services
All Applicable Laws
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Focus of services in emerging Scenario
20%
80%
Filing forms & Applications
Registers & Returns
Checklists
Strategy
Management
Research
All Applicable Laws
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Company Secretary is primarily responsible to coordinate with
COMPLIANCE OF ALL LAWS
Therefore, WE ARE ANSWERABLE……
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See the Horizon Beyond Company Law
Its time to go beyond the pre-defined framework.
Always say ‘YES’, its my area of work
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Move with a Direction
Services Provided by an Ordinary CS
No
Direction
Move with a new Direction
Piecemeal
services
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“Problems becomes opportunities,
when right people come together …”
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Thus, Opportunities are Unlimited …
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Its just a matter of Creativity, Confidence and Communication …
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…and also Perception and Positive Thinking
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So now, we need to prepare ourselves to create niche in the emerging scenario
…
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But merely optimism will not do
optimism with Confidence & Right Attitude will …
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The emerging scenario requires us to reinvent
everything - to think of ourselves as
compared to others …
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When Opportunity does not knock your door….”
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build the door….”
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But now opportunities have knocked your door …
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But still …
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You have to get off from your seat and open the door….”
One ounce of practice is worth Twenty thousand tons of big talk.
- Swami Vivekananda
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Thank You …