Aman Tongiaaman tongia asked 2 years ago

Sir u/s 139(6) bod to appoint first auditor within 30 days of registration and if not by them then members within 90 days. sir, 90days will be counted from  date of registration or after ending of 30 days of bod period

2 Answers
RaviRavi Staff answered 2 years ago

Please read only words highlighted in BOLD
 
Sec 139 (5) Subsequent Auditor of Government Company 
(5) Notwithstanding anything contained in sub-section (1), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments, the Comptroller and Auditor-General of India shall, in respect of a financial year, appoint an auditor duly qualified to be appointed as an auditor of companies under this Act, within a period of “one hundred and eighty days from the commencement of the financial year”, who shall hold office till the conclusion of the annual general meeting.
 
Note :- Clearly specified from where to count 180 days
 
Sec 139 (6) – First Auditor of Other than Government Company 
(6) Notwithstanding anything contained in sub-section (1), the first auditor of a company, other than a Government company, shall be appointed by the Board of Directors within thirty days from the date of registration of the company and in the case of failure of the Board to appoint such auditor, it shall inform the members of the company, who shall within ninety days at an extraordinary general meeting appoint such auditor and such auditor shall hold office till the conclusion of the first annual general meeting.
 
Note :- Not clearly specified from where 90 days will be counted, but wording suggest that after failure of board , share holders will appoint within 90 days, no where in law there is concept to include days specified earlier so whey to include earlier 30 days in 90 it should be separate, if they had intention to include earlier 30 they would have specified, further to give separate 90 days for AGM (of other than government company) is common feature it is given in casual vacancy also.
 
Sec 139 (7) First Auditor of Government Company
Notwithstanding anything contained in sub-section (1) or sub-section (5), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government, or Governments, or partly by the Central Government and partly by one or more State Governments, the first auditor shall be appointed by the Comptroller and Auditor-General of India within sixty days from the date of registration of the company and in case the Comptroller and Auditor-General of India does not appoint such auditor within the said period, the Board of Directors of the company shall appoint such auditor within the next thirty days; and in the case of failure of the Board to appoint such auditor within the next thirty days, it shall inform the members of the company who shall appoint such auditor within the sixty days at an extraordinary general meeting, who shall hold office till the conclusion of the first annual general meeting.
 
Note :- Here also it is not specified from where to count next 60 days for AGM and there is lack of clarity, here from date of incorporation is not possible because CAG is already given 60 days and BOD 30 days, so it means here 60 will be counted from end of 30 days of BOD Now we will have to maintain consistency if in 139 (7) we are counting 60 days where there was no clarity from end bod time then in 139 (6) also we should count 90 from end of BOD time  
 
From all above discussion it is appropriate to count 90 days from end of bod time of 30 days and not date of incorporation.  
 
Reason
1. Clearly mentioned after failure of BOD
2. No where in law unless specifically explained we  include earlier days
3. In both 139 (6) & (7) law is silent from where to count 30 and 60 respectively so in both cases we need to have consistency  hence counting from end of 30 days is appropriate 
 

RaviRavi Staff answered 1 year ago

*** In conclusion it should be 90 and 60 and not 30 and 60

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