Qualifications and Disqualifications of an auditor

SEBI notified latest regulation on 02-09-2015, Wednesday - SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. Applicable Date - after 90 days But 2 regulations applicable with immediate effect- (i) passing of ordinary resolution instead of special resolution in case of all material related party transactions subject to related parties abstaining from voting on such resolutions, in line with the provisions of the companies Act, 2013 (ii) re-classification of promoters as public shareholders under various circumstances. These regulations are divide into 2 parts- --1. Substantive provisions incorporated in the main body of Regulations --2. Procedural requirements in the form of Schedules to the Regulations. Main Principal 1.Guiding Principles - he regulations start by providing broad principles for periodic disclosures by listed entities and also have incorporated the principles for corporate governance. 2.Common obligations applicable to all listed entities - Obligations which are common to all listed entities have been enumerated. These include general obligation of compliance of listed entity, appointment of common compliance officer, filings on electronic platform, mandatory registration on SCORES, etc 3.Obligations which are applicable to specific types of securities - Obligations which are applicable to specific types of securities have been incorporated in separate chapters

1) A person shall not be qualified for appointment as auditor of a company unless he is a chartered accountant 24 within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) : Provided that a firm whereof all the partners practising in India are qualified for appointment as aforesaid may be appointed by its firm name to be auditor of a company, in which case any partner so practising may act in the name of the firm.

The Companies Act, 2013 has given disqualifications rather than qualifications in the act. According to Provisions of Section 141(3) of the Companies Act, 2013 , following persons shall not be eligible as auditor of the company: ‐ a) A body corporate other than LLP registered under the LLP Act, 2008 b) An officer or employee of the company. c) A person who is partner or who in the employment, of an officer or employee of the company. d) **A person who or his relative or partner** (i) is holding any security/interest in the company or its subsidiary or of its holding or associate company or subsidiary of such holding company. It has been further provided that an relative may hold security or interest in the company of face value not exceeding one lac rupees. (ii) is indebted to the company or its subsidiary, or its holding or associate company or subsidiary of such holding company, in excess of Rs. 5 lacs rupees (iii) has given guarantee or provide any security in connection with the indebtness of any third person to the company or its subsidiary, or its holding or associate company or a subsidiary of such holding company for value in excess of Rs. 1 lacs. e) A person or a firm who (whether directly or indirectly) has business relationship with the company, or its subsidiary, or its holding or associate company or subsidiary of such holding company or associate company. **Here the business relationship shall be construed as any transactions enter into for acommercial purpose except: ‐** a) Commercial transactions which are in the nature of professional services permitted to be rendered by an auditor or audit firm by the professional bodies regulated such members. b) Commercial transactions which are in ordinary course of business of the company at arm’s length price as customer. f) A person whose relative is a director or is in the employment of the company as a director or key managerial personnel. **g) A person** (i) who is in full time employment elsewhere or (ii) a person or a partner holding appointment as its auditor is at the date of such appointment or reappointment holding appointment as auditor for more than 20 companies

(1) A person shall not be qualified for appointment as auditor of a company unless he is a chartered accountant 24 within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) : Provided that a firm whereof all the partners practising in India are qualified for appointment as aforesaid may be appointed by its firm name to be auditor of a company, in which case any partner so practising may act in the name of the firm. (2)(a) Notwithstanding anything contained in sub-section (1), but subject to the provisions of any rules made under clause (b), the holder of a certificate granted under a law in force in the whole or any portion of a Part B State immediately before the commencement of the Part B States (Laws) Act, 1951 (3 of 1951) 25[or of the Jammu and Kashmir (Extension of Laws) Act, 1956 (62 of 1956), as the case may be,] entitling him to act as an auditor of companies 26[in the territories which, immediately before the 1st November, 1956, were comprised] in that State or any portion thereof, shall be entitled to be appointed to act as an auditor of companies registered anywhere in 27[India].

**QUALIFICATIONS AND DISQUALIFICATIONS OF AN AUDITOR** Qualifications A person shall appointed as an auditor if he is chartered accountant within the meaning of Chartered Accountants Act, 1949 and holding valid certificate of practice and acting in capacity as a) Individual b) Partnership Firm c) Limited Liability partnership    It has been further provided that only partners who are Chartered Accountants will be authorised to sign on behalf of the firm.         Disqualification of Auditor    According to Provisions of Section 141(3) of the Companies Act, 2013 , following persons shall not be eligible as auditor of the company: ‐     a) A body corporate other than LLP registered under the LLP Act, 2008 b) An officer or employee of the company. c) A person who is partner or who in the employment, of an officer or employee of the company. d) A person who or his relative or partner (i) is holding any security/interest in the company or its subsidiary or of its holding or associate company or subsidiary of such holding company. It has been further provided that an relative may hold security or interest in the company of face value not exceeding one lac rupees. (ii) is indebted to the company or its subsidiary, or its holding or associate company or subsidiary of such holding company, in excess of Rs. 5 lacs rupees (iii) has given guarantee or provide any security in connection with the indebtness of any third person to the company or its subsidiary, or its holding or associate company or a subsidiary of such holding company for value in excess of Rs. 1 lacs. e) A person or a firm who (whether directly or indirectly) has business relationship with the company, or its subsidiary, or its holding or associate company or subsidiary of such holding company or associate company. Here the business relationship shall be construed as any transactions enter into for a commercial purpose except: ‐  a) Commercial transactions which are in the nature of professional services permitted to be rendered by an auditor or audit firm by the professional bodies regulated such members. b) Commercial transactions which are in ordinary course of business of the company at arm’s length price as customer. f) A person whose relative is a director or is in the employment of the company as a director or key managerial personnel. g) A person (i) who is in full time employment elsewhere or (ii) a person or a partner holding appointment as its auditor is at the date of such appointment or reappointment holding appointment as auditor for more than 20 companies. Thanks

Section 141 of Co. Act 2013:- Eligibility, qualifications and disqualifications of auditors (1) A person shall be eligible for appointment as an auditor of a company only if he is a chartered accountant: Provided that a firm whereof majority of partners practising in India are qualified for appointment as aforesaid may be appointed by its firm name to be auditor of a company. (2) Where a firm including a limited liability partnership is appointed as an auditor of a company, only the partners who are chartered accountants shall be authorised to act and sign on behalf of the firm. (3) The following persons shall not be eligible for appointment as an auditor of a company, namely:— (a) a body corporate other than a limited liability partnership registered under the Limited Liability Partnership Act, 2008; (b) an officer or employee of the company; (c) a person who is a partner, or who is in the employment, of an officer or employee of the company; (d) a person who, or his relative or partner— (i) is holding any security of or interest in the company or its subsidiary, or of its holding or associate company or a subsidiary of such holding company: Provided that the relative may hold security or interest in the company of face value not exceeding one thousand rupees or such sum as may be prescribed; (ii) is indebted to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of such amount as may be prescribed; or (iii) has given a guarantee or provided any security in connection with the indebtedness of any third person to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, for such amount as may be prescribed; (e) a person or a firm who, whether directly or indirectly, has business relationship with the company, or its subsidiary, or its holding or associate company or subsidiary of such holding company or associate company of such nature as may be prescribed; (f) a person whose relative is a director or is in the employment of the company as a director or key managerial personnel; (g) a person who is in full time employment elsewhere or a person or a partner of a firm holding appointment as its auditor, if such persons or partner is at the date of such appointment or reappointment holding appointment as auditor of more than twenty companies; (h) a person who has been convicted by a court of an offence involving fraud and a period of ten years has not elapsed from the date of such conviction; (i) any person whose subsidiary or associate company or any other form of entity, is engaged as on the date of appointment in consulting and specialised services as provided in section 144. (4) Where a person appointed as an auditor of a company incurs any of the disqualifications mentioned in sub-section (3) after his appointment, he shall vacate his office as such auditor and such vacation shall be deemed to be a casual vacancy in the office of the auditor.

Hii (1) A person shall not be qualified for appointment as auditor of a company unless he is a chartered accountant 24 within the meaning of the Chartered Accountants Act, 1949 (38 of 1949) : Provided that a firm whereof all the partners practising in India are qualified for appointment as aforesaid may be appointed by its firm name to be auditor of a company, in which case any partner so practising may act in the name of the firm. (2)(a) Notwithstanding anything contained in sub-section (1), but subject to the provisions of any rules made under clause (b), the holder of a certificate granted under a law in force in the whole or any portion of a Part B State immediately before the commencement of the Part B States (Laws) Act, 1951 (3 of 1951) 25[or of the Jammu and Kashmir (Extension of Laws) Act, 1956 (62 of 1956), as the case may be,] entitling him to act as an auditor of companies 26[in the territories which, immediately before the 1st November, 1956, were comprised] in that State or any portion thereof, shall be entitled to be appointed to act as an auditor of companies registered anywhere in 27[India]. (b) The Central Government may, by notification in the Official Gazette, make rules providing for the grant, renewal, suspension or cancellation of auditors’ certificates to persons in 26[the territories which, immediately before the 1st November, 1956, were comprised in] Part B States for the purposes of clause (a), and prescribing conditions and restrictions for such grant, renewal, suspension or cancellation. (3) None of the following persons shall be qualified for appointment as auditor of a company— (a ) a body corporate; (b ) an officer or employee of the company; (c ) a person who is a partner, or who is in the employment, of an officer or employee of the company; (d ) a person who is indebted to the company for an amount exceeding one thousand rupees, or who has given any guarantee or provided any security in connection with the indebtedness of any third person to the company for an amount exceeding one thousand rupees; 28[( e) a person holding any security of that company after a period of one year from the date of commencement of the Companies (Amendment) Act, 2000. Explanation : For the purposes of this section, "security" means an instrument which carries voting rights.] (4) A person shall also not be qualified for appointment as auditor of a company if he is, by virtue of sub-section (3), disqualified for appointment as auditor of any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or would be so disqualified if the body corporate were a company. (5) If an auditor becomes subject, after his appointment, to any of the disquali-fications specified in sub-sections (3) and (4), he shall be deemed to have vacated his office as such.