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AUDITOR, DIRECTOR & UPDATES: Don’t violate Co Act to appoint Auditor/director:CA N More

A)Case Studies on Auditor’s Appointment

1) Auditor has been appointed for 1 year in last AGM: How to appoint new auditor this year?

Ans: In this case, no ADT3 is required as auditor has served this term of 1 year in full. Auditor is retiring auditor. Procedure  prescribed u/s 140(4) has to be followed:
i) Special notice is required to appoint new auditor.
ii) Send copy to retiring auditor.
iii) Receive representation from auditor.
iv)Send it to members or read in AGM(if received late).
Company shall pass ordinary resolution for appointment of new auditor. There is no requirement to file MGT14(as no special resolution) .

Case 2: In above case 1, auditor has given his unwillingness to continue as auditor after conclusion of AGM. Unwillingness given 1 month before AGM

Ans: In this case, its better if company send a copy of resolution to retiring auditor & follow sec 140(4). However, I am sure that he will not give any representation to company, as he had already given unwillingness. No ADT3 is required.

Case 3: Auditor had been appointed for 5 years in last AGM. He had given his unwillingness to continue after this AGM.

Ans: ADT 3 is required to be filled as he has not served his term of 5 year.Sec 140(4) is not required to be followed, as he is not retiring auditor. It will results in casual vacancy by resignation(as he resigned before his term) & new auditor can be appointed in annual general meeting. However, he will hold office up to next AGM only.

Case 4: Company wants to change his auditor in this AGM, appointed last year for 5 years.

Ans: Company can not change auditor except:
i) his resignation &
ii) removal of auditor by approval of CG

B) DIRECTOR:In case of Pvt Co, Casual vacancy can be filled in GM only:CA N More

1) Directors can be appointed in General Meeting only.

2) However, additional director can be appointed by Board , only if article provides power to board, who shall hold office upto next AGM.

3) In public co, casual vacancy may be filled by board. Such person will hold office upto date, in whose place he has been appointed, would have held office. [S161(4)]

4) In case of Private company, no such provision of filling of casual vacancy as above. Hence, casual vacancy can not be filled by Board.


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