Appointment of new auditors other than retiring auditors

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

24 October 2013 ABC Pvt. Ltd. , a private ltd co. has not yet filed annual returns with ROC (Form 23AC, ACA, 20B)

The existing auditors have expressed unwillingness to be re-appointed for the next year. Can Form 23AC, ACA and form 20B be filed without new appointment of auditors ? Please advise

This is because at the moment directors are undecisive about whom to appoint as auditors.

Please help.

Ajay Mishra

Ajay Mishra (Expert)
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24 October 2013 No you can not file above mentioned form with out auditor details.

Ajay Mishra

Ajay Mishra (Expert)
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24 October 2013 Procedure to Appoint of Auditor and file Form 23B (Appointment of Auditor)

1. The Company will call a Board Meeting after resignation of auditor to accept resignation of old auditor, fill a casual vacancy by new auditor and call a general meeting.
2.The company will appoint new statutory auditor at general meeting
3.Send letter of appointment to auditor within seven days from the appointment.
4. The auditor give letter of acceptance as auditor to the company and send a copy of the same to the old auditor of his appointment.
5. The auditor also intimate ROC in Form 23B within 30 days from the date of acceptance of letter of appointment.
6. Form 23B can be download from www.mca.gov.in
7. Letter of appointment will be attached with Form 23b.
8. The SRN no will be generated with fee.

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Ajay Mishra

Ajay Mishra (Expert)
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24 October 2013 APPOINTMENT OF OTHER THAN A RETIRING AUDITOR

A special notice of a resolution to be moved at an annual general meeting for appointing an auditor
other than the retiring auditor or removing of an existing auditor is given to the company in the manner as prescribed under the Act.

Requirement of special notice to the company:

Section 225(1) provides that special notice shall be to be given by a member and such special notice must comply with the requirements of section 190. Following two types of resolutions or notice may be
given under section 225 of the Act:—
(a) resolution at an annual general meeting for appointment of a person other than a retiring auditor as
auditor; and
(b) resolution at an annual general meeting providing expressly that retiring auditor shall not be reappointed.

Special notice has to be given to the company at least fourteen days before the date of the meeting. The period of fourteen days is exclusive of both the day of meeting and the day of notice. Moreover, special notice has to be given fourteen days before the date of the original meeting and not adjourned meeting.
Thus, special notice received after the adjournment of original meeting cannot be taken and acted upon by a
company.
In the case of Santosh Mani v New Delhi YMCA (1995) 19 CLA 178 (Del), it was held that even though the resolution moved by a shareholder not to re-appoint a retiring auditor failed to comply with requirement of section 188, yet since it was passed in annual general meeting when notice of resolution was given by company to all members and was carried by a majority, the same could be implemented.

The Department's Circular No. 5 of 1972, dated 21-2-1972 inter alia states that in view of section 225 special notice shall be required for a resolution appointing as an auditor a person other than the retiring
auditor. Non-compliance with the provisions of the said section would render such a resolution illegal and ineffective.
Section 190 which provide a resolution requiring special notice applies to special notice under section 225.

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Ganeshbabu K

Ganeshbabu K (Expert)
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24 October 2013 form 20b can be filed there is no relation with appointment of auditor and for filing annual return,so file it as early as possible
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kindly note if statutory audit of f.y.2012-13 is completed and auditor handovered signed copy of financials and audit report you can file form 23AC,23ACA for F.Y.2012-13 which should be attested by any ca,cwa,cs,,,so you can also file these forms
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Querist : Anonymous

Querist : Anonymous (Querist)

27 October 2013 Sir

In Boards Report we have to mention in the Auditor Section what do we write ???

Ajay Mishra

Ajay Mishra (Expert)
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27 October 2013 You write the following:

STATUTORY AUDITORS

M/s ......& Associates, Chartered Accountants, the Statutory Auditors of the Company hold office until the conclusion of the ensuing Annual General Meeting and being eligible, offer themselves for re-appointment. The Company has received a certificate from the auditors to the effect that their re-appointment if made, would be within the prescribe limit as mentioned under Section 224 (1B) of the Companies Act, 1956 and they are not disqualified for such re-appointment within the meaning of section 226 of such Act.

AUDITORS’ REPORT

All observations made in the Independent Auditors’ Report and notes to the accounts are self explanatory and do not call for any further comments under section 217 of the Companies Act, 1956.