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NEERAJ MUDGAL LAW CLASSES 1

ABOUT CS NEERAJ MUDGAL SIR

He is a company secretary, got qualified in the year 2007. He is

specialized for CA Final – Corporate & Allied Laws. He started his

career with Hon’able CA Rajesh Makkar Sir . He is and has been a

faculty member of the Institute of Company Secretaries of India. He

has been devoted for the last 5 years to CA Final Corporate & Allied

Laws.

The knowledge & performance of his students is excellent in

academics as well as in Industry.

From NEERAJ MUDGAL SIR

WISH U WISH U WISH U WISH U

ALL THE VERY BESTALL THE VERY BESTALL THE VERY BESTALL THE VERY BEST

Dear Students, the COMPANIES, ACT 2013 has been published in THE GAZETTE OF INDIA EXTRAODINARY ON 30TH

August 2013 after it received the assent of President of India. The new act would be notified in a phased manner.

In The first phase 98 sections were notified w.ef. 12th

September . The draft rules have already been published for

public opinion and would very soon be notified. The whole procedure paves the way for enactment of the new law

in very short span of time.

We at NEERAJ MUDGAL LAW CLASSES, have made all the preparation to help the students to understand the new

law its technicalities and how its different from the erstwhile Companies Act 1956.

This assignment elaborates the provisions of Managerial Remuneration under the new act in comparison with

earlier provisions.


COVERAGE : CHAPTER XIII , SECTION 197COVERAGE : CHAPTER XIII , SECTION 197COVERAGE : CHAPTER XIII , SECTION 197COVERAGE : CHAPTER XIII , SECTION 197,199,200,199,200,199,200,199,200 AND SCHEDULE VAND SCHEDULE VAND SCHEDULE VAND SCHEDULE V

LIMITS OF TOTAL REMUNERATION PAYABLE BY A PUBLIC CO. TO ITS DIRECTORS

AND MANAGERS

(1) The TOTAL managerial remuneration payable by a public company, to its directors, including managing director

and whole-time director, and its manager in respect of any financial year shall not exceed ELEVEN PER CENT. of

the net profits.

Provided that the company in general meeting may, with the APPROVAL OF THE CENTRAL GOVERNMENT,

authorise the payment of remuneration EXCEEDING ELEVEN PER CENT. of the net profits of the company, subject

to the provisions of Schedule V:

INDIVIDUAL LIMITS OF MD/WTD/MGR

Provided further that, EXCEPT with the APPROVAL of the company in GENERAL MEETING,—

(i) the remuneration payable to any ONE managing director; or whole-time director or manager shall not

exceed FIVE PER CENT. of the net profits of the company and if there is more than one such director

remuneration shall not exceed TEN PER CENT. of the net profits to ALL such directors and manager

taken together;

LIMITS OF DIRECTORS OTHER THAN MANAGING DIRECTORS OR WHOLE TIME

DIRECTORS(PART TIME DIRECTORS)

Provided further that, EXCEPT with the APPROVAL of the company in GENERAL MEETING,—

(ii) the remuneration payable to directors who are neither managing directors nor whole-time directors shall

not exceed,—

(A) ONE PER CENT. of the net profits of the company, if there is a managing or whole-time director or

manager;

(B) THREE PER CENT. of the net profits, in any other case.(IF THERE IS NO MD/WTD/MGR)

SITTING FEE SHALL NOT BE INCLUDED IN THE REMUNERATION LIMITS

(2) The percentages aforesaid shall be EXCLUSIVE of any fees payable to directors under sub-section (5).

Q. Advise M/s Super Specialities Ltd. in respect of the following proposals under consideration of its Board of Directors:;

(ii) Payment of commission of 4% of the net profits per annum to the ordinary directors of the company;

A According to Section 197 (1) of Companies Act 2013

EXCEPT with the APPROVAL of the company in GENERAL MEETING,—

(ii) the remuneration payable to directors who are neither managing directors nor whole-time directors shall not exceed,—

(A) ONE PER CENT. of the net profits of the company, if there is a managing or whole-time director or manager;

(B) THREE PER CENT. of the net profits, in any other case.(IF THERE IS NO MD/WTD/MGR)

In view of the above, it may be concluded that payment of 4% of the net profits to ordinary director may be made if it is approved by the company in General

Meeting.

MANAGERIAL REMUNERAION LIMITS (SECTION 197)

Comment [L1]: CG IS GIVEN POWER TO

AUTHORISE CO. TO PAY MORE THAN 11%, EARLIER

LAW DID NOT EMPOWER THE CG TO DO SO.

Comment [L2]: Under the earlier law approval

of CG was required to pay more than 5% or 10% as

the case may be

Comment [L3]: Under the earlier law approval

of CG was required to pay more than 1% or 3% as

the case may be

Comment [L4]: MAY BE CALLED AS SITTING FEE

ie. The fee for attending the meeting of the BOARD

or COMMITTEE OF BOARD.


ANALYSIS OF APPROVALS AND THE REMUNERATION CEILINGS

1 MD 1 WTD 8 PTDS TOTAL

5 5 1 11%

5 5 - 10%

6 4 1 11%

6 5 NIL 11%

7 5 NIL 12%

GENERAL MEETING APPROVAL

GENERAL MEETINGAPPROVAL - For Exceeding 5% and also for exceeding 10% limit.

GENERAL MEETING APPROVAL FOR PAYING 7% i.e. in excess of 5% and CENTRAL

GOVERNMENT APPROVAL for paying 12% i.e. more than 11%(this combination was notpossible under earlier law)

PAYMENT OF REMUNERATION IF THERE IS NO PROFIT OR INADEQUATE PROFIT

(3) Notwithstanding anything contained in sub-sections (1) and (2), but subject to the provisions of Schedule V, if, in

any financial year, a company has NO PROFITS OR ITS PROFITS ARE INADEQUATE, the company shall not pay

to its directors, including any managing or whole-time director or manager, by way of remuneration any sum exclusive

of any fees payable to directors under sub-section (5) hereunder except in accordance with the provisions of

SCHEDULE V and if it is not able to comply with such provisions, with the PREVIOUS APPROVAL OF THE

CENTRAL GOVERNMENT.

REMUNERATION OF DIRECTOR TO INCLUDE REMUNERATION RECEIVED IN ANY

OTHER CAPACITY AND SHALL BE DETERMINED BY AOA OR RESOLUTION OF GM

(4) The remuneration payable to the directors of a company, including any managing or whole-time director or

manager, shall be determined, in accordance with and subject to the provisions of this section, either by the articles

of the company, or by a resolution or, if the articles so require, by a special resolution, passed by the company in

general meeting and the remuneration payable to a director determined aforesaid shall be inclusive of the

remuneration payable to him for the services rendered by him in any other capacity:

REMUNERATION OF DIRECTOR SHALL NOT INCLUDE REMUNERATION RECEIVED IN

ANY OTHER CAPACITY

Provided that any remuneration for services rendered by any such director in other capacity shall not be so included

if—

(a) the services rendered are of a professional nature, and

Co having not profits or inadequate profits

Can pay remuneration

By taking according to

Prior approval of Schedule V

Central Government

Remuneration of director includes

Remuneration received remuneration

As a director received in any

Other capacity

BUT

Does not include the remuneration received

if services rendered are of professional

nature

OR


(b) in the opinion of the Nomination and Remuneration Committee, if the company is covered under sub-

section (1) of section 178, or the Board of Directors in other cases, the director possesses the requisite

qualification for the practice of the profession.

DIRECTOR MAY RECEIVE REUMUNERATION BY WAY OF FEE FOR ATTENDING THE

MEETING OF BOARD OR ITS COMMITTEES

(5) A director may receive remuneration by way of fee for attending meetings of the Board or Committee thereof or for

any other purpose whatsoever as may be decided by the Board:

Provided that the amount of such fees shall not exceed the amount as may be prescribed:

Provided further that different fees for different classes of companies and fees in respect of independent director may

be such as may be prescribed.

MODE OF PAYMENT

(6) A director or manager may be paid remuneration either by way of a monthly payment or at a specified percentage

of the net profits of the company or partly by one way and partly by the other.

INDEPENDENT DIRECTOR NOT TO TAKE STOCK OPTION

Q. Examine whether the payment of following remuneration to Non-executive Directors (Directors who are neither in

the whole-time employment of the company nor Managing Director) is in accordance with the provisions of the

Companies Act, 1956:

(i) Sitting fee payable to Directors is increased from Rs.3,000 to Rs.6,000 per meeting by amending the

Articles of Association.

A yes. Proposed limit for the sitting fee in Rule. 13.2 is 1 lac per meeting per director. Therefore increasing the sitting fee

from 3000 to 6000 rs. Per meeting is with in the limits.

Q. M/s Star Health Specialities Ltd. owns a Multi-specialty Hospital in Chennai. Dr. Hamilton, a practising Heart Surgeon, has been appointed by the company

as its non-executive ordinary director and it wants to pay him fee, on case to case basis, for surgery performed on the patients at the hospital. A question has arisen whether payment of such fee to him would amount to payment of managerial remuneration to a director subject to any restriction under the Companies

Act, 1956.

Advise the company, which seeks to ensure that the same does not contravene any provision of the Companies Act, 1956

A According to Sec. 197(4) of the Companies Act 2013 remuneration paid to a director in any other capacity shall be included in the remuneration paid to director if

However the remuneration paid in any other capacity shall not be included in the remuneration paid to director if

(a) the services rendered are of a professional nature, and

(b) in the opinion of the Nomination and Remuneration Committee, if the company is covered under sub-section (1) of section 178, or the Board of Directors

in other cases, the director possesses the requisite qualification for the practice of the profession.

In view of the above , it may be said that if Dr. Hamilton satisfies the above said conditions, then the fee to be paid on case to case basis, for surgery performed on

the patients at the hospital shall not be considered as remuneration and can be paid without any restriction.

Comment [L5]: Under the earlier law the

opinion of CG was considered

Comment [L6]: Rule 13.2 of draft rules provide

the limit of 1 lac per meeting per director.

Under earlier law limit was 20000 per meeting per

director for some companies and for other

companies limit was 10000 per meeting per

director.

Comment [L7]: Rule 13.2 provides that different

fee may be fixed for independent and non

independent directors other than whole time

director.

Comment [L8]: Mode of payment is uniform for

all types of directors. The earlier law provided for

different modes for Part time Directors and other

directors.


(7) Notwithstanding anything contained in any other provision of this Act but subject to the provisions of this section,

an independent director shall not be entitled to any stock option and may receive remuneration by way of fees

provided under sub-section (5), reimbursement of expenses for participation in the Board and other meetings and

profit related commission as may be approved by the members.

COMPUTATION OF NET PROFIT AS PER SEC. 198

(8) The net profits for the purposes of this section shall be computed in the manner referred to in section 198.

DUTY TO REFUND THE EXCESS REMUNERATION RECEIVED

(9) If any director draws or receives, directly or indirectly, by way of remuneration any such sums in excess of the limit

prescribed by this section or without the prior sanction of the Central Government, where it is required, he shall

refund such sums to the company and until such sum is refunded, hold it in trust for the company.

WAIVER OF RECOVERY OF EXCESS REMUNERATION RECEIVED

(10) The company shall not waive the recovery of any sum refundable to it under sub-section (9) unless permitted by

the Central Government.

INCREASE IN REMUNERATION

(11) In cases where Schedule V is applicable on grounds of no profits or inadequate profits, any provision relating to

the remuneration of any director which purports to increase or has the effect of increasing the amount thereof,

whether the provision be contained in the company’s memorandum or articles, or in an agreement entered into by it,

or in any resolution passed by the company in general meeting or its Board, shall not have any effect unless such

increase is in accordance with the conditions specified in that Schedule and if such conditions are not being

complied, the approval of Central Government had been obtained.

Q. Mr. Weldon was appointed as a Director of Esquire Engineering Ltd., with effect from 1st October, 2002. Since the Company, namely, Esquire

Engineering Ltd. wanted to take full advantage of the wisdom and expertise of Mr. Weldon, it offered him remuneration payable on monthly basis and

made an application to the Central Government for approval for payment of such remuneration. Anticipating the approval of the Central Government, Esquire Engineering Ltd. started paying such remuneration from the date of appointment and continued to do so till 31st March, 2003. The Central Government did not fully approve the remuneration proposed by the company and restricted the same to a lower amount. On scrutiny of the accounts, it

was established that the company, till 31st March, 2003, has paid to Mr. Weldon a total sum of Rs.1.20 Lacs in excess of the remuneration sanctioned by the Central Government.

You are required to:

(i) State with reference to the provisions of the Companies Act, 1956 in respect of recovery and waiver of recovery of the excess remuneration so paid, whether Mr. Weldon can keep the excess remuneration so received and under what conditions.

A According to Sec. 197 (9)&(10) of the Companies act 2013

Section 197(9): If any director draws or receives, directly or indirectly, by way of remuneration any such sums in excess of the limit prescribed by this section or

without the prior sanction of the Central Government, where it is required, he shall refund such sums to the company and until such sum is refunded, hold it in

trust for the company.

WAIVER OF RECOVERY OF EXCESS REMUNERATION RECEIVED

Section 197(10): The company shall not waive the recovery of any sum refundable to it under sub-section (9) unless permitted by the Central Government.

In view of the above, it may be concluded that Mr. Weldon can retain the excess remuneration if the company obtains the approval of Central

Government.


DISCLOSURE OF DIRECTORS’ REMUNERATION IN THE BOARD REPORT

(12) Every listed company shall disclose in the Board’s Report, the ratio of the remuneration of each director to the

median employee’s remuneration and such other details as may be prescribed.

PREMIUM PAID ON PROFESSIONAL INSURANCE NOT BE INCLUDED IN

REMUNERAION

(13) Where any insurance is taken by a company on behalf of its managing director, whole-time director,

manager, Chief Executive Officer, Chief Financial Officer or Company Secretary for indemnifying any of them against

any liability in respect of any negligence, default, misfeasance, breach of duty or breach of trust for which they may

be guilty in relation to the company, the premium paid on such insurance shall not be treated as part of the

remuneration payable to any such personnel:

Provided that if such person is proved to be guilty, the premium paid on such insurance shall be treated as part of the

remuneration.

DIRECTOR MAY RECEIVE REMUNERATION OR COMMISSION FROM THE HOLDING OR

SUBSIDIARY CO

(14) Subject to the provisions of this section, any director who is in receipt of any commission from the company and

who is a managing or whole-time director of the company shall not be disqualified from receiving any remuneration

or commission from any holding company or subsidiary company of such company subject to its disclosure by the

company in the Board’s report.

CONTRAVENTION OF THIS SECTION WITH FINE OF 1 LAC -5 LACS

(15) If any person contravenes the provisions of this section, he shall be punishable with fine which shall not be less

than one lakh rupees but which may extend to five lakh rupees.

Disclosure in Board’s report. Rule 13.3 (proposed)

For the purposes of sub-section (12) of 197, every listed company shall disclose in the Board’s report:

1. the ratio of the remuneration of each director to the median remuneration of the employees of the company for the financial year ;

2. Percentage increase in remuneration of each director and CEO in the financial year;

3. Percentage increase in the median remuneration of employees in the financial year;

4. Number of permanent employees on the rolls of company;

5. Explanation on the relationship between average increase in remuneration and company performance;

6. Comparison of the remuneration of the Key Managerial Personnel against the performance of

7. The ratio of the remuneration of the highest paid director to that of the employees who are not directors but receive remuneration in excess of the

highest paid director during the year.

8. Affirmation that the remuneration is as per the remuneration policy of the company

Comment [L9]: Earlier law had prohibited such

payment.


Notwithstanding anything contained in this chapter XIII, the Central Government or a Company, while according its

approval under section 196, to any appointment or to any remuneration under section 197 in respect of cases where

the company has inadequate or no profits, fix the remuneration within the limits specified in this act, at such amount

or percentage of profits of the company, as it may deem fit and while fixing the remuneration, the Central Government

or the company shall have regard to—

a) The financial position of the company

b) The remuneration or commission drawn by the individual concerned in any other capacity

c) The remuneration or commission drawn by him from any other company

d) Professional qualification and experience of the individual concerned

e) Such other matters as may be prescribed

.

Without prejudice to any liability incurred under the provisions of this act or any other law for the time being in force,

where a company is required to re-state its financial statements due to fraud on non-compliance with any requirement

under this act and the rules made thereunder, the company shall recover from any past or present managing director

or whole-time director or manager or chief executive officer(by whatever name called) who, during the period for

which the financial statements are required to be re-stated, received the remuneration (including stock option) in

excess of what would have been payable to him as per re-stated financial statements.

POWER OF CENTRAL GOVERNMENT OR COMPANY TO FIX

LIMIT OF REMUNERATION ( SECTION 200)

RECOVERY OF REMUNERAION IN CASE WHER FINANCIAL

STATEMENTS ARE RESTATED ( SECTION 199)


CONDITIONS TO BE FULFILLED FOR THE APPOINTMENT OF A MANAGING OR

WHOLE-TIME DIRECTOR OR A MANAGER WITHOUT THE APPROVAL OF THE

CENTRAL GOVERNMENT No person shall be eligible for appointment as a managing or whole-time director or a manager (hereinafter referred to as managerial person) of a company unless he satisfies the following conditions, namely:—

((((aaaa)))) he had not been sentenced to imprisonment for any period, or to a fine exceeding one thousand rupees, for the conviction of an offence under any of the following Acts, namely:—

(i) the Indian Stamp Act, 1899 (2 of 1899);

(ii) the Central Excise Act, 1944 (1 of 1944);

(iii) the Industries (Development and Regulation) Act, 1951 (65 of 1951);

(iv) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(v) the Essential Commodities Act, 1955 (10 of 1955);

(vi) the Companies Act, 2013;

(vii) the Securities Contracts (Regulation) Act, 1956 (42 of 1956);

(viii) the Wealth-tax Act, 1957 (27 of 1957);

(ix) the Income-tax Act, 1961 (43 of 1961);

(x) the Customs Act, 1962 (52 of 1962);

(xi) the Competition Act, 2002 (12 of 2003);

(xii) the Foreign Exchange Management Act, 1999 (42 of 1999);

(xiii) the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986);

(xiv) the Securities and Exchange Board of India Act, 1992 (15 of 1992);

(xv) the Foreign Trade (Development and Regulation) Act, 1922 (22 of 1922);

(xvi) the Prevention of Money-Laundering Act, 2002 (15 of 2003); (b) he had not been detained for any period under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974): Provided that where the Central Government has given its approval to the appointment of a person convicted or detained under sub-paragraph (a) or sub-paragraph (b), as the case may be, no further approval of the Central Government shall be necessary for the subsequent appointment of that person if he had not been so convicted or detained subsequent to such approval. (c) he has completed the age of twenty-one years and has not attained the age of seventy years:

Provided that where he has attained the age of seventy years; and where his appointment is approved by a special

resolution passed by the company in general meeting, no further approval of the Central Government shall be

necessary for such appointment;

Q. Advise M/s Super Specialities Ltd. in respect of the following proposals under consideration of its Board of Directors:

(i) Appointment of Managing Director who is more than 70 years of age;

.A According to PART I Para C of Schedule V of Companies Act 2013, if the proposed Managing Director has attained the age of 70 years, such appointment may be done if approved by the SPECIAL RESOLUTION.

SCHEDULE V

PART IPART IPART IPART I

APPOINTMENTSAPPOINTMENTSAPPOINTMENTSAPPOINTMENTS

Comment [L10]: To be eligible the candidate

shall satisfy all the conditions specified in a,b,c,d,e.


(d) where he is a managerial person in more than one company, he draws remuneration from one or more companies subject to the ceiling provided in section V of Part II;

(e) he is resident of India. Explanation I.—For the purpose of this Schedule, resident in India includes a person who has been staying in India for a continuous period of not less than twelve months immediately preceding the date of his appointment as a managerial person and who has come to stay in India,—

(i) for taking up employment in India; or

(ii) for carrying on a business or vacation in India. Explanation II.—This condition shall not apply to the companies in Special Economic Zones as notified by Department of Commerce from time to time: Provided that a person, being a non-resident in India shall enter India only after obtaining a proper Employment Visa from the concerned Indian mission abroad. For this purpose, such person shall be required to furnish, along with the visa application form, profile of the company, the principal employer and terms and conditions of such person’s appointment.

Section I.— Remuneration payable by companies having profits: Subject to the provisions of section 197, a company having profits in a financial year may pay remuneration to a managerial person or persons not exceeding the limits specified in such section. Section II.— Remuneration payable by companies having no profit or inadequate profit without

Central Government approval: Where in any financial year during the currency of tenure of a managerial person, a company has no profits or its profits are inadequate, it may, without Central Government approval, pay remuneration to the managerial person not exceeding the higher of the limits under (A) and (B) given below:—

(A): (1) (2)

Where the EFFECTIVE CAPITAL is Limit of YEARLY REMUNERATION

payable shall not exceed (Rupees)

(i) Negative or less than 5 crores 30 lakhs

(ii) 5 crores and above but less than 42 lakhs

100 crores

(iii) 100 crores and above but less than 60 lakhs

250 crores

(iv) 250 crores and above 60 lakhs plus 0.01% of the effective

capital in excess of Rs. 250 crores:

Provided that the above limits shall be doubled if the resolution passed by the shareholders is a special resolution. Explanation.—It is hereby clarified that for a period less than one year, the limits shall be pro-rated.

Q. X , a director of mjv ltd. Was appointed on 1st april 2009. One of the terms of appointment was that in the absence of adequacy of profits or if the company had no

profits in a particular year, he will be paid remuneraion in accordance with the schedule xiii. For the financial year ended 31st march , 2010, the company suffered heavy

losses. The compay was not in a position to pay any remuneration but he was paid rs. 50 lacs for the year, as paid to other directors.

The effective capital of the company is rs. 150 cr. Refering to the provisions of companies act 1956 as contained in schedule xiii, examine the validity of above payment

or remuneration to x

A According to PART II SECTION II Para A, if the effective capital is 100 crores and above but less than 250 cr., then an yearly remuneration upto 60 lacs could be paid.

As in the present case the effective capital is 150 cr and the proposed remuneration is 50 lacs per year, such payment is with in the specified limits.

PART IIPART IIPART IIPART II REMUNERATION

Comment [L11]: Condition of being resident in

India shall not apply to the companies in SPECIAL

ECONOMIC ZONE.


(B)

In the case of a managerial person who was not a security holder holding securities of the company of nominal value

of rupees five lakh or more or an employee or a director of the company or not related to any director or promoter at

any time during the two years prior to his appointment as a managerial person, — 2.5% of the current relevant profit:

Provided that if the resolution passed by the shareholders is a special resolution, this limit shall be doubled: Provided further that the limits specified under this section shall apply, if—

(i) payment of remuneration is approved by a resolution passed by the Board and, in the case of a company covered under sub-section (1) of section 178 also by the Nomination and Remuneration Committee;

(ii) the company has not made any default in repayment of any of its debts (including public deposits) or

debentures or interest payable thereon for a continuous period of thirty days in the preceding financial year before the date of appointment of such managerial person;

(iii) a special resolution has been passed at the general meeting of the company for payment of remuneration for

a period not exceeding three years;

(iv) a statement along with a notice calling the general meeting referred to in clause (iii) is given to the shareholders containing the following information, namely:—

I. General Information:

(1) Nature of industry

(2) Date or expected date of commencement of commercial production

(3) In case of new companies, expected date of commencement of activities as per project approved by

financial institutions appearing in the prospectus

(4) Financial performance based on given indicators

(5) Foreign investments or collaborations, if any.

II. Information about the appointee:

(1) Background details

(2) Past remuneration

(3) Recognition or awards

(4) Job profile and his suitability

(5) Remuneration proposed

(6) Comparative remuneration profile with respect to industry, size of the company, profile of the position and person (in case of expatriates the relevant details would be with respect to the country of his origin)

(7) Pecuniary relationship directly or indirectly with the company, or relationship with the managerial

personnel, if any.

III. Other information:

(1) Reasons of loss or inadequate profits

(2) Steps taken or proposed to be taken for improvement

(3) Expected increase in productivity and profits in measurable terms.

IV. Disclosures:

The following disclosures shall be mentioned in the Board of Director’s report under the heading “Corporate Governance”, if any, attached to the financial statement:— (i) all elements of remuneration package such as salary, benefits, bonuses, stock options, pension, etc., of

all the directors;

(ii) details of fixed component and performance linked incentives along with the performance criteria;


(iii) service contracts, notice period, severance fees; (iv) stock option details, if any, and whether the same has been issued at a discount as well as the period over which accrued and over which exercisable.

Section III.— Remuneration payable by companies having no profit or inadequate profit

without Central Government approval in certain special circumstances: In the following circumstances a company may, without the Central Government approval, pay remuneration to a managerial person in excess of the amounts provided in Section II above:—

(a) where the remuneration in excess of the limits specified in Section I or II is paid by any other company and that other company is either a foreign company or has got the approval of its shareholders in general meeting to make such payment, and treats this amount as managerial remuneration for the purpose of section 197 and the total managerial remuneration payable by such other company to its managerial persons including such amount or amounts is within permissible limits under section 197.

(b) where the company—

(i) is a newly incorporated company, for a period of seven years from the date of its incorporation, or

(ii) is a sick company, for whom a scheme of revival or rehabilitation has been ordered by the Board for

Industrial and Financial Reconstruction or National Company Law Tribunal, for a period of five years from the date of sanction of scheme of revival,

it may pay remuneration up to two times the amount permissible under Section II.

(c) where remuneration of a managerial person exceeds the limits in Section II but the remuneration has been

fixed by the Board for Industrial and Financial Reconstruction or the National Company Law Tribunal: Provided that the limits under this Section shall be applicable subject to meeting all the conditions specified under Section II and the following additional conditions:—

(i) except as provided in para (a) of this Section, the managerial person is not receiving remuneration from any other company;

(ii) the auditor or Company Secretary of the company or where the company has not appointed a Secretary,

a Secretary in whole-time practice, certifies that all secured creditors and term lenders have stated in writing that they have no objection for the appointment of the managerial person as well as the quantum of remuneration and such certificate is filed along with the return as prescribed under sub-section (4) of section 196.

(iii) the auditor or Company Secretary or where the company has not appointed a secretary, a secretary in

whole-time practice certifies that there is no default on payments to any creditors, and all dues to deposit holders are being settled on time.

(d) a company in a Special Economic Zone as notified by Department of Commerce from time to time which has

not raised any money by public issue of shares or debentures in India, and has not made any default in India in

repayment of any of its debts (including public deposits) or debentures or interest payable thereon for a continuous

period of thirty days in any financial year, may pay remuneration up to Rs. 2,40,00,000 per annum

Section IV.— Perquisites not included in managerial remuneration:

1. A managerial person shall be eligible for the following perquisites which shall not be included in the computation of the ceiling on remuneration specified in Section II and Section III:—

(a) contribution to provident fund, superannuation fund or annuity fund to the extent these either singly or put together are not taxable under the Income-tax Act, 1961 (43 of 1961);

(b) gratuity payable at a rate not exceeding half a month’s salary for each completed year of service; and

(c) encashment of leave at the end of the tenure.

2. In addition to the perquisites specified in paragraph 1 of this section, an expatriate managerial person

(including a non-resident Indian) shall be eligible to the following perquisites which shall not be included in the computation of the ceiling on remuneration specified in Section II or Section III—

(a) Children’s education allowance: In case of children studying in or outside India, an allowance limited to a maximum of Rs. 12,000 per month per child or actual expenses incurred, whichever is less. Such allowance


is admissible up to a maximum of two children.

(b) Holiday passage for children studying outside India or family staying abroad:

Return holiday passage once in a year by economy class or once in two years by first class to children and to the members of the family from the place of their study or stay abroad to India if they are not residing in India, with the managerial person.

(c) Leave travel concession: Return passage for self and family in accordance with the rules specified by the

company where it is proposed that the leave be spent in home country instead of anywhere in India.

MEANING OF EFFECTIVE CAPITAL

Explanation I.— For the purposes of Section II of this Part, “effective capital” means the aggregate of the

paid-up share capital (excluding share application money or advances against shares); amount, if any, for the time

being standing to the credit of share premium account; reserves and surplus (excluding revaluation reserve); long-

term loans and deposits repayable after one year (excluding working capital loans, over drafts, interest due on loans

unless funded, bank guarantee, etc., and other short-term arrangements) as reduced by the aggregate of any

investments (except in case of investment by an investment company whose principal business is acquisition of

shares, stock, debentures or other securities), accumulated losses and preliminary expenses not written off.

Q. EF Chemicals Ltd. proposes to appoint one whole-time technical Director on a consolidated monthly remuneration of Rs. 30,000 and one whole-time Marketing Director on a

consolidated salary of Rs. 25,000 per month for a period for three years with effect from 1st

September, 2005. The company has got a Managing Director and he is getting Rs. 40,000

per month. Explain the requirements under the companies Act to be complied with by the company in connection with the proposed appointment of whole-time Directors taking into

account the following data collected from the Balance Sheet of the company as on 31st

March, 2005:.

Rs.

1. Paid-up Share Capital 80,00,000

2. Debentures redeemable after three years 90,00,000

3. Investments 20,00,000

4. Accumulated Loss 70,00,000

5. Preliminary Expenses not written off 15,00,000

(May 2006)

A According to Explanation I Effective Capital shall be calculated as follows

S.NO. Treatment ITEM Amount(in lacs)

1 ADD Paid Up Capital(excluding the share application money and advances against the shares)* 80

2 ADD Security Premium ----------

3 ADD Reserve & Surplus( not including Revaluation Reserve) -----------

4 ADD Long Term Loans & Deposit (payable after 1 year) 90

5 LESS Investment( Non-Trade) 20.

6 LESS Accumulated losses not written off 70

7 LESS Pre incorporation Expenses not written off. 15

Effective Capital 65

According to PART II, SECTION II, if the Effective capital is less than 5 cr then an yearly remuneration upto 30 lacs could be paid. As the effective capital is 65 lacs.

An yearly Remuneration upto 30 lacs could be paid to each of the whole time directors. The proposed remuneration of rs. 25000 p.m. and 30000 p.m. is with in the

limits.


TIME OF CALCULATION OF EFFECTIVE CAPITAL

Explanation II.— (a) Where the appointment of the managerial person is made in the year in which company has been incorporated, the effective capital shall be calculated as on the date of such appointment; (b) In any other case the effective capital shall be calculated as on the last date of the financial year preceding the financial year in which the appointment of the managerial person is made.

MEANING OF FAMILY

Explanation III.— For the purposes of this Schedule, ‘‘family’’ means the spouse, dependent children and dependent parents of the managerial person.

FACTORS TO BE CONSIDERED BY NOMINATION AND REMUNERATION COMMITTEE

Explanation IV.— The Nomination and Remuneration Committee while approving the remuneration under Section II or Section III, shall— (a) take into account, financial position of the company, trend in the industry, appointee’s qualification, experience,

past performance, past remuneration, etc.;

(b) be in a position to bring about objectivity in determining the remuneration package while striking a balance between the interest of the company and the shareholders.

MEANING OF NEGATIVE EFFECTIVE CAPITAL

Explanation V.— For the purposes of this Schedule, “negative effective capital” means the effective capital which is calculated in accordance with the provisions contained in Explanation I of this Part is less than zero.

MEANING OF CURRENT RELEVANT PROFIT

Explanation VI.— For the purposes of this Schedule:— (A) “current relevant profit” means the profit as calculated under section 198 but without deducting the excess of expenditure over income referred to in sub-section 4 thereof in respect of those years during which the managerial person was not an employee, director or shareholder of the company or its holding or subsidiary companies.

MEANING OF REMUNERATION

Explanation VI.— For the purposes of this Schedule:— (B) “Remuneration” means remuneration as defined in clause (78) of section 2 and includes reimbursement of any direct taxes to the managerial person.

Section V. —Remuneration payable to a managerial person in two companies:

Q. Neemuch pharma limited having an effective capital of rs. 4 cr. As on 31st march 2012 raised rs. 2 cr by way of issue of right shares in may 2012 during the current

financial year 2012-2013. The company is managed by mr. Chandrasekhar, the managing director, and he is getting a minimum remuneration of rs. 80000 per month.

The company proposes to appoint two whole time directrors in july 2012 on a conslolidated minimum salary of rs. 60000 per month to each of them. What is the

effective capital for the purpose of determination of minimum remuneration payable to the proposed whole time directors ? State the requirements to be complied with

under the schedule xiii to the companies act 1956? Nov. 2012

.A According to Explanation II, the effective capital shall be calculated as on the last date of the financial year preceding the financial year in which the appointment of the managerial person is made. Therefore the effective capital shall be calculated as on 31

st March 2012. Which is 4 crores. According to Part II section II if the effective capital is less than 5 crores

then yearly remuneration upto 30 lacs can be paid. In the present case, the. Proposed remuneration is 60,000 p.m each to both the whole time directors it is within the limits.


Subject to the provisions of sections I to IV, a managerial person shall draw remuneration from one or both companies, provided that the total remuneration drawn from the companies does not exceed the higher maximum limit admissible from any one of the companies of which he is a managerial person.

1.The appointment and remuneration referred to in Part I and Part II of this Schedule shall be subject to approval by a resolution of the shareholders in general meeting. 2. The auditor or the Secretary of the company or where the company is not required to appointed a Secretary, a Secretary in whole-time practice shall certify that the requirement of this Schedule have been complied with and such certificate shall be incorporated in the return filed with the Registrar under sub-section (4) of section 196.

The Central Government may, by notification, exempt any class or classes of companies from any of the

requirements contained in this Schedule

MOTHER OF LAW

Q. Board of directors of colorful textiles limited having an effective capital of rs. 4 cr. Propose to appoint one of its directors, Mr. Shyam, as managing director for 5 years

with effect from 1st december, 1996 on a consolidated monthly salary of rs. 40000 p.m. Mr. Shyam is already the managing director of unique yarn limited receiving a

consolidated salary of rs. 35000 per month. The effective capital of unique yarn limited is rs. 2 cr. What are the legal requirements to be complied with by colorful textiles

limited to give effect to the proposed appointment? CA FINAL (Nov. 96)

A According to SECTION V, Mr. Shyam can draw remuneration from both the companies however the total remuneration drawn shall not exceed higher maximum limit

admissible from one of the companies. The effective capital of colourful textiles limited is more than unique yarn limited i.e. 4 crores. According to PART II ,SECTION II , if the effective capital is less than 5 cr. A yearly remuneration upto 30 lacs may be paid.

Total remuneration shall be 75000 p.m. (40000 p.m. + 35000 p.m.) i..e. 9 lacs per annum. As it is less than 30 lacs , it is with in the limits . Hence shyam can be paid this amount of remuneration.

PART IIIPART IIIPART IIIPART III

PROVISIONS APPLICABLE TO PARTS I AND II OF THIS SCHEDULE

PART IVPART IVPART IVPART IV


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