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introduction

The overall growth in the industrial scenario has brought about drastic changes in the role and profile of a Company Secretary. A Company Secretary or Corporate Secretary or Secretary commonly referred to as “CS” is a senior position in an organization, normally in the form of a managerial position or above. Despite the name, the role is not a clerical or secretarial one in the usual sense. Company Secretary is a professional whose role in a corporate set up is that of an advisor for legal matters.


CS co-ordinates with and assists various departments of the organization, ensures compliance of company legislations and advises directors on statutory requirements of the company.
Company Secretaries are required to understand relevant aspects of laws, update themselves with the changes to ensure proper compliance of legislations. The job also involves arranging company meetings, collecting and compiling information and recording the decisions. They act as confidants of board of directors and provide a link between the management and shareholders. Nowadays, they are foraying in capital markets and financial services industry. Their assistance in administration, management, planning and general running of the company makes them the company's chief administrator.


The basic duties of the Company Secretary can be outlined easily but their overall responsibilities, and the fit of the role within senior management, are more difficult to explain. The Company Secretary in today's world is a senior corporate officer with wide-ranging responsibilities, who serves as a focal point for communication with the board of directors, senior management and the company's shareholders, and who occupies a key role in the administration of critical corporate matters.


The Company Secretary ensures that an organization complies with relevant legislation and regulation, rules, guidelines etc, and keeps board members informed of their legal responsibilities. Company Secretaries are the company’s named representative on legal documents, and it is their responsibility to ensure that the company and its directors operate within the law. It is also their responsibility inter alia to register and communicate with shareholders, to ensure that dividends are paid and to maintain company records, such as lists of directors and shareholders, and annual accounts.


Company Secretaries in all sectors have high level responsibilities including governance structures and mechanisms, corporate conduct within an organization’s regulatory environment, board, shareholder meetings, compliance with legal, regulatory and listing requirements, the training and induction of non-executives and trustees, contact with regulatory and external bodies, reports and circulars to shareholders/trustees, management of employee benefits such as pensions and employee share schemes, insurance administration and organization, the negotiation of contracts, risk management, property administration and organization and the interpretation of financial accounts.


By reviewing statutes and corporate by-laws, from which the powers and duties of the Company Secretary and other corporate officers are derived, one could conclude that the Company Secretary is expected to be a sort of combination of advisor and custodian. Company Secretaries are the primary source of advice on the conduct of business and this can span everything from legal advice on conflicts of interest, through accounting advice on financial reports, to the development of strategy and corporate planning.


Many shareholders, particularly institutional investors, view sound corporate governance as essential to board and company performance. The Company Secretary is usually the executive to assist directors in these efforts, providing information on the practices of other companies, and helping the board to tailor corporate governance principles and practices to fit the board's needs and expectations of investors. In view of the important roles the Company Secretary plays in business, Company Secretaries are professionally qualified and suitably trained for these responsibilities. Providing advice on corporate governance issues is an increasingly important role for corporate secretaries. Many shareholders, particularly institutional investors, view sound corporate governance as essential to board and company performance. They are quite vocal in encouraging boards to perform frequent corporate governance reviews and to issue written statements of corporate governance principles. The Company Secretary is usually the executive to assist directors in these efforts, providing information on the practices of other companies, and helping the board to tailor corporate governance principles and practices to fit the board's needs and expectations of investors.


Practising Company Secretary or Company Secretary in Practice is a Secretary in whole-time practice and is a member of the Institute of Company Secretaries of India (ICSI) holding a valid Certificate of Practice issued by ICSI and who renders corporate secretarial services to many clients.


The plethora of services, which a Practising Company Secretary can render are listed below:

 

PROJECT PLANNING

  1. Promotion, formation and incorporation of companies, and matters related therewith including choice of type of company, availability of name, drafting of Memorandum and Articles of Association and other documents, their stamping and registration with the Registrar of Companies.

  2. Identification of Project.

  3. Selection of location for the project and advising on various incentives available.

  4. Selection of land, search of titles, and getting required approvals for carrying out industrial/commercial activities on such land.

  5. Advising on size of the project, drawing schedule of implementation and follow up from the stage of conceiving of project up to the commencement of commercial production.

  6. Advising on expansion and modernisation.

RAISING OF RESOURCES/FINANCIAL SERVICES

  1. Preparation of Project Reports and Feasibility Studies.

  2. Syndication of long term and short term loans from financial institutions, banks and other agencies.

  3. Loan documentation, registration of charges, search and status report.

  4. Advisor/Consultant in issue of shares and other securities.

  5. Drafting of prospectus/offer for sale/letter of offer/other documents related to issue of securities, and obtaining various approvals in association with lead managers.

  6. Listing of securities/delisting of securities with recognised stock exchanges.

  7. Private placement of shares and securities.

  8. Buy-back of shares and other securities.

  9. Raising of funds from international markets - ADR/GDR/ECB.

  10. Investment subsidies, sales tax and other incentives.

  11. Liaisoning with financial institutions, banks, other lenders, and stock exchanges, and furnishing periodical returns, reports and information required by them.

  12. Advising sick companies with respect to the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, and drafting of rehabilitation schemes.

FOREIGN COLLABORATIONS AND JOINT VENTURES ABROAD

  1. Advising on Foreign Collaborations.

  2. Advising on setting up of subsidiaries in India.

  3. Advising on setting up of joint ventures abroad or setting up of subsidiaries abroad.

  4. Drafting of Memorandum of Understanding, Promoters’ Agreement, Shareholders’ Agreement and Commercial Agreements.

CORPORATE RESTRUCTURING

  1. Planning strategies for amalgamation/merger, acquisition, takeover, spin off, reconstruction, reorganisation, restructuring and winding up of companies.

  2. Change of name, change of objects and shifting of registered office of the company.

  3. Drafting schemes of amalgamation or arrangement, public offer for acquisition or takeover, and Promoters Agreement.

  4. Complying with necessary legal and procedural requirements.

  5. Advising the management on post restructured scenario.

CORPORATE LAWS ADVISORY SERVICES

Companies Act:

  1. Filing, registering, representing, attesting or verifying any document including forms, returns and applications by or on behalf of the company as an authorised representative.

  2. Compilation of status/search reports for companies, banks and financial institutions.

  3. Pre-certification of forms relating to Registration/Modification/ Satisfaction of charges and their filing with the Registrar of Companies.

  4. Pre-certification of other documents and returns required to be filed with the Registrar of Companies.

  5. Advising on legal and procedural matters under the Act.

  6. Maintenance of secretarial records, statutory books and registers.

  7. Acting as Secretarial Auditor, Advisor or Consultant.

  8. Filing of petitions before the Company Law Board.

  9. Appearing as authorised representative before the Company Law Board, Central Government, Regional Director and Registrar of Companies.

  10. Acting as Scrutinizer for postal ballots voting process.

MRTP Act / Consumer Protection Act:

  1. Appearing as authorised representative before the MRTP Commission/Consumer Forums.

  2. Advising company on dealership agreements, trade practices, sales promotion schemes, marketing and sales campaigns.

Foreign Exchange Management Act:

  1. Advising on legal and procedural matters falling under FEMA.

  2. Advising Non-Resident Indians regarding investment in India and repatriation of such investments and returns thereon.

  3. Obtaining RBI/FIPB approvals.

Depositories Act:

  1. Appearing as authorised representative before Securities Appellate Tribunal.

  2. Conduct of Internal Audit of Operations of Depository Participants.

State Laws:

  1. Advising on legal and procedural matters on various laws of different states on Pollution Control, Co-operative Societies, Public Trusts, Non Trading Corporations, Land Ceilings, Sales Tax, Revenue Laws etc.

Appearance before Regulatory Authorities

  1. Appearing as authorised representative before the Company Law Board, Central Government, Regional Director, Registrar of Companies, MRTP Commission, Consumer Forums, Securities Appellate Tribunal Central Excise authorities, Wealth Tax Authorities, Customs Authorities, Income Tax Authorities, Appellate Tribunals, Central Electricity Regulatory Commission, Gujarat Electricity Regulatory Commission, Telecom Disputes Settlement and Appellate Tribunal, BIFR.

TAX PLANNING AND MANAGEMENT

Income Tax:

  1. Computation of tax payable, filing of returns of income of the company and its directors and obtaining permanent account numbers.

  2. Computation and payment of advance tax.

  3. Computation of deduction of tax at source, filing of forms and issue of TDS certificates.

  4. Acting as authorised representative before the Income Tax authorities during assessment proceedings, furnishing of records/ documents/explanations called for.

  5. Filing of appeals, claiming refunds, getting the transactions registered.

  6. Advising on tax planning and tax management, availing tax concessions, incentives, reliefs and tax benefits.

Wealth Tax:

  1. Acting as authorised representative before wealth tax authorities in matters of disputes relating to valuation of shares, debentures, stocks, assets, etc.

  2. Acting as registered valuer of shares, stocks, debentures, shares in partnership firm and of business assets including goodwill.

Excise:

  1. Acting as authorised representative before Central Excise Authorities.

  2. Valuation and classification of goods.

  3. Assessment of duty and obtaining refunds.

  4. Complying with formalities for removal of excisable goods for home consumption and exports.

  5. CENVAT procedures.

  6. Advising on search, seizure etc.

  7. Documentation.

Customs:

  1. Acting as authorised representative before Customs Authorities and the Appellate Tribunal.

  2. Assisting in clearance of import/export classification of goods.

  3. Valuation of goods and assessment of customs duty and obtaining refunds.

  4. Documentation.

  5. Availing duty exemptions and drawback benefits.

EXPORT-IMPORT AND FOREX DEALINGS

  1. Advising on Export-Import policy and regulations.

  2. Export-Import documentation.

  3. Advising on Letters of Credit, and drafting suitable conditions in L/Cs.

  4. Advising and assisting in receipt and remittance of funds in foreign currency.

ARBITRATION AND CONCILIATION

  1. Advising on arbitration, negotiations and conciliation.

  2. Drafting Arbitration/Conciliation Agreement/Clauses.

  3. Acting as Arbitrator/Conciliator in Domestic and International Commercial disputes.

INTELLECTUAL PROPERTY RIGHTS AND WTO

  1. Advising on Intellectual Property Licensing and drafting of agreement.

  2. Acting as registered Trade Mark Agent.

  3. Advising on passing off/infringement matters.

  4. Advising on registration of patents, trademarks and copyrights.

  5. Advising on all matters related to Intellectual property and TRIPs of WTO.

  6. Valuation of Intellectual Property Rights.

  7. Advising on anti-dumping matters-computation of Normal Value, Sale Price, Comparisons and Appraisals.

PERSONNEL MATTERS

  1. Manpower planning and development.

  2. Recruitments, fixation of terms of appointment and devising pay packages.

  3. Advising on matters with respect to labour and industrial laws, maintenance of registers and records, filing of various forms and registers, and follow up with the authorities.

ISSUE OF CERTIFICATES UNDER VARIOUS STATUTES

Companies Act/Stock Exchanges:

  1. Compliance Certificate for companies not required to employ a whole-time secretary and having paid-up share capital of Rs. 10 lakhs or more.

  2. Making a verified declaration of compliances for obtaining a certificate of commencement of business/commencement of other business.

  3. Making the statutory declaration that all requirements of the Companies Act and the rules there under have been complied with in respect of registration of a company and matters precedent and incidental thereto.

  4. Give declaration in respect of section 25 companies that the Memorandum and Articles of Association have been drawn up in conformity with the provisions of the Act and compliance of provisions with respect to registration or matters incidental thereto.

  5. Signing of annual return of listed companies.

  6. Certificate regarding dispatch of certificate after transfer etc. under clause 47(C) of the Listing Agreement.

  7. Certification of statement of amounts credited to Investor Education and Protection Fund.

  8. Certificate regarding compliance with Private Limited Company and Unlisted Public Limited Company (Buy-back of Securities) Rules, 1999 including those relating to extinguishment and destruction of certificates which has to be done in the presence of a Practising Company Secretary.

  9. Certificate on appointment of Managing Director/Whole-time Director/Manager under Schedule XIII.

  10. Certification to listed companies to the effect that all refund orders/ certificates issued were dispatched within prescribed time and manner and securities were listed on the stock exchanges as specified in the offer document.

Export-Import Policy:

  1. Various certificates under the Export-Import Policy and Procedures.

Foreign Exchange Management Act:

  1. Various Certificates for exchange control purposes under FEMA.

Charter Policy 1986 of the Dept. of Agriculture and Co-operation:

  1. Certifying particulars of the company chartering foreign fishing vessels.