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Vismay Shah asked 1 month ago

Sir please tell me the difference between 139 (9) (c) and section 140 (4)

1 Answers
RaviRavi Staff answered 1 month ago

First of all 139(9) is framed so that wrong appointments doesn’t happen under 139(10) by law. Because it will be difficult to call automatic appointment by law void, as it is as per law. Further 139(9)(c) gives right to company to pass special resolution in ANY general meeting specifying what will happen if no auditor is appointed at AGM, whether particular new auditor will get appointed or keeping old auditor aside making him unavailable for appointment. 
 
Now Sec 140(4) is procedure for removal of auditor at AGM, which gives him special right, right to send his representation, which will be circulated to all shareholders, before they pass any resolution on removal.
 
Conclusion
So 139(9) is specifically to help in situation when no auditor is appointed at AGM. And 140(4) gives removal procedures, both are for different purpose all together.
 
Section 139 (9)(c)
 
(9) Subject to the provisions of sub-section (1) and the rules made thereunder, a retiring auditor may be re-appointed at an annual general meeting, if—

(a)
 
he is not disqualified for re-appointment;

(b)
 
he has not given the company a notice in writing of his unwillingness to be re-appointed; and

(c)
 
a special resolution has not been passed at that meeting appointing some other auditor or providing expressly that he shall not be re-appointed.

 
Section 140 (4)

(4) (i) Special notice shall be required for a resolution at an annual general meeting appointing as auditor12 a person other than a retiring auditor, or providing expressly that a retiring auditor shall not be re-appointed, except where the retiring auditor has completed a consecutive tenure of five years or, as the case may be, ten years, as provided under sub-section (2) of section 139.
(ii) On receipt of notice of such a resolution, the company shall forthwith send a copy thereof to the retiring auditor.
(iii) Where notice is given of such a resolution and the retiring auditor makes with respect thereto representation in writing to the company (not exceeding a reasonable length) and requests its notification to members of the company, the company shall, unless the representation is received by it too late for it to do so,—

(a)
 
in any notice of the resolution given to members of the company, state the fact of the representation having been made; and

(b)
 
send a copy of the representation to every member of the company to whom notice of the meeting is sent, whether before or after the receipt of the representation by the company,

and if a copy of the representation is not sent as aforesaid because it was received too late or because of the company’s default, the auditor may (without prejudice to his right to be heard orally) require that the representation shall be read out at the meeting:

Provided that if a copy of representation is not sent as aforesaid, a copy thereof shall be filed with the Registrar:

13Provided further that if the Tribunal is satisfied on an application14 either of the company or of any other aggrieved person that the rights conferred by this sub-section are being abused by the auditor, then, the copy of the representation may not be sent and the representation need not be read out at the meeting.

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