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Clarification with regard to applicability of provisions of section 139(5) and 139(7) of the Companies Act,2013
August, 08th 2014
                                                     General Circular No. 33/2014

                                 F. No.1/33/ 13-CL-V
                                 Government of India
                              Ministrv of Corporate Alfairs

                                                  5th Floor, A Wing, Shastri Bhavan,
                                                             Dr R.P. Road, New Delhi
                                                              Dated: 3lst Julv. 2014
    To

    All Regional Directors,
    All Registrars of Companies.


    Subject: Clarillcation with regard to applicability of provisions of sectio!
            13915) and 139(71 of the Companis Act, 2013


    Sir,

           Doubts have been raised about applicability oi sectioDs 139{5) and 139(7)
    of the Companies Act, 2013 (New Act), which deal with appointment of auditors
    by Comptroller and Auditor General of India (C&AG), to 'deemed Government
    Companies' referred to in section 619E} of the Companies Act 1956 (Old Act) i.e.
    companies where ownership or control lies with two or more Government
    companies or corporations etc in the manner detailed in section 6198 ibid,
    Stakeholders have pointed out that the New Act does not contain specific
    provisions about 'deemed Government companies' on the lines of section 619B
    of the Old Act. Clarification has been sought whether, under the new Act, such
    deemed Government companies would be subject to audit by the C&AG in the
    same manner as Government Companies. ',




    2.     The above issue has been examined and it is clarified that the new Act


v    does not alter the position with regard to audit of such deemed Covernment
    'companies through C&AG and thus such companies are covered under sub-
     section (5) and (7) of section 139 of the New Act.

    3.     Further, it has also been observed that the words " ang other companA
    owned or controlled, directly or indirecllg           bg the Central GoDemment
    and  partlA  bg one or more State GoDenlments' appeaing in sub-sections (5) and
    {7) of section 139 of the New Act are to be read with the definition of tontrol'in
    sectron 2(27) of the New Act. Thus documents like articles ol association and
    shareholders agreements etc envisaging control under secti.on 2(27) are to be
                                                                                     1
taken into account while deciding whether an individual company, other than
those referred in paragraph 1-2 above, is covered under section 1391511139(7)
ol the New Act.




4. Clarification has also been soueht about the manner in which                 the
information about incorporation of a company subject to audit by an auclltor to
be appointed by the C&AG is to be communicated to the C&AG for the pur-pose
of appointment of first auditors under section 139{7) of the New Act. It is
hereby clarified that such responsibility rests with both, the Government
concerned and the relevant company. To avoid any confusion it is further
clarified that it will primarily be the responsibility of the company concerned to
intimate to the C&AG about its incorporation along with name, location of
registered ofhce, capital structure of such a company immediately on its
incorporation, It is also incumbent on such a company to share such
intimation to the relevant Government so that such Covernment mav also send
a suitable request to the C&AG.

5.    This issues with the approval of the competent authority.



                                                                  Yours faithfully,


                                                                  9,r_,11"",-
                                                               (Klrf S Narayanan)
                                                       Assistant Director (Policy)
Copy to:-

1. e-Governance Section and web contents Officer to place this circular on the
Ministry website
2. Guard File

 
 
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