All About NFRA Rules, FAQ's and Interpretations

ATTENTION:

Form NFRA - 1 is Available for filing purpose and last date of filing is 31st July 2019. Form is uploaded on NFRA website.

Link of NFRA Website: https://nfra.gov.in/

Link of notification: https://nfra.gov.in/sites/default/files/Last%20date%20of%20Filing%20NFRA%20-%20I.pdf

• Overview of National Financial Reporting Authority (NFRA), Rules 2018

MCA has introduced National Financial Reporting Authority Rules, 2018 vide notification dated 13th November, 2018 to provide for matters relating to accounting and auditing standards under the Companies Act, 2013.

Link of the notification: http://www.mca.gov.in/Ministry/pdf/NFRARules2018_13112018.pdf

• Applicable Laws:

Section 132(2) :Constitution of National Financial Reporting Authority.
Section 132(4) : Powers of National Financial Reporting Authority.
Section 139(1) : Appointment of Auditors
Section 469(1) : Power of Central Government to Make Rules.

• Companies which are required to file E-Form NFRA-1:

Companies mentioned Rule 3(2) and 3(3) of The National Financial Reporting Authority Rules, 2018

Rule 3(2) : (First time return)

Due date is 31.07.2019 (form deployed on 01.07.2019)

Every existing body corporate other than a company governed by these rules, shall inform the Authority within 30 days of the commencement of these rules, in Form NFRA-1, the particulars of the auditor as on the date of commencement of these rules.

Rule 3(3) : (Regular Return/ Annual Return)

Due date: Within 15 days of appointment of an auditor under section 139(1)

Every Body Corporate, other than a company as defined in section 2 (20) , formed in India and governed under this rule shall, within 15 days of appointment of an auditor under of section 139 (1), inform the Authority in Form NFRA-1, the particulars of the auditor appointed by such body corporate:

Provided that a body corporate governed under clause (e) of sub-rule (1) shall provide details of appointment of its auditor in Form NFRA-1.

Rule 3(1)(e)

A body corporate incorporated or registered outside India, which is a subsidiary or associate company of any company or body corporate incorporated or registered in India as referred to in clauses (a) to (d), if the income or networth of such subsidiary or associate company exceeds twenty per cent. of the consolidated income or consolidated net worth of such company or the body corporate, as the case may be, referred to in clauses (a) to (d).

Definition of Body Corporate:

Section 2(11) of the Companies Act 2013

"body corporate" or "corporation" includes a company incorporated outside India, but does not include:

(i) a co-operative society registered under any law relating to co-operative societies; and
(ii) any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf;

• Rule 3 applicability to file NFRA-1 covers:
• Insurance companies (LIC, , Reliance Life Insurance, Sahara Life Insurance, - not registered under Companies Act, 2013)
• Banking companies (SBI, PNB,UCO, SBOP etc.- not registered under Companies Act, 2013)
• Companies engaged in the generation or supply of electricity,
• Companies governed by any special Act for the time being in force (ICSI, ICAI) or
• Bodies corporate incorporated by an Act in accordance with clauses (b), (c), (d), (e) and (f) of sub-section (4) of section 1 of the Act;

Section 1(4) of the Companies Act 2013

(b) insurance companies, except in so far as the said provisions are inconsistent with the provisions of the Insurance Act, 1938 (4 of 1938) or the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999;

(c) banking companies, except in so far as the said provisions are inconsistent with the provisions of the Banking Regulation Act, 1949 (10 of 1949);

(d) companies engaged in the generation or supply of electricity, except in so far as the said provisions are inconsistent with the provisions of the Electricity Act, 2003 (36 of 2003);

(e) any other company governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with the provisions of such special Act; and

(f) such body corporate, incorporated by any Act for the time being in force, as the Central Government may, by notification, specify in this behalf, subject to such exceptions, modifications or adaptation, as may be specified in the notification.

• Interpretation of NFRA Rules:

1. As per Rule 3(1) : Authority has power to investigate

NFRA Authority shall have power to monitor and enforce compliance with accounting standards and auditing standards, oversee the quality of service under section 132(2) or undertake investigation under section 132(4) of the auditors of the following class of companies and bodies corporate, as mentioned under clause (a) to (e) of the Rule 3(1) of NFRA, Rules 2018.

2. Rule 3(2) and 3(3) deals the applicability criteria.

3. Companies not required to file NFRA-1

• Companies registered in India under the Companies Act 2013/1956

• Unlisted Public Companies having paid-up capital of less than Rs. 500 crores or having annual turnover less than Rs. 1000 crores or having, in aggregate, outstanding loans, debentures and deposits less than Rs. 500 crores as on the 31st March of immediately preceding financial year;

• a body corporate incorporated or registered outside India, which is a subsidiary or associate company of any company or body corporate incorporated or registered in India as referred to in clauses (a) to (d) of Rule 3(1), if the income or networth of such subsidiary or associate company does not exceeds 20% of the consolidated income or consolidated networth of such company or the body corporate,

• Annual Return is the responsibility of the Auditor:

Every auditor referred to in rule 3 of NFRA, Rules 2018 shall file a return with the Authority on or before 30th April every year in such form as may be specified by the Central Government.

• Important Note:

Rule 3(4) : Applicability criteria in case company ceases to meet the eligibility criteria:

A company or a body corporate other than a company governed under this rule shall continue to be governed by the Authority for a period of 3 years after it ceases to be listed or its paid-up capital or turnover or aggregate of loans, debentures and deposits falls below the limit stated therein.

• Punishment in case of non-compliance.-

If a company or any officer of a company or an auditor or any other person contravenes any of the provisions of these rules, the company and every officer of the company who is in default or the auditor or such other person shall be punishable as per the provisions of section 450 of the Act.

Section 450: Punishment Where No Specific Penalty or Punishment is provided.

If a company or any officer of a company or any other person contravenes any of the provisions of this Act or the rules made thereunder, or any condition, limitation or restriction subject to which any approval, sanction, consent, confirmation, recognition, direction or exemption in relation to any matter has been accorded, given or granted, and for which no penalty or punishment is provided elsewhere in this Act, the company and every officer of the company who is in default or such other person shall be punishable with fine which may extend to ten thousand rupees, and where the contravention is continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the contravention continues.

• Analysis of FAQ’s on NFRA-1 prescribed by NFRA

Link: https://nfra.gov.in/sites/default/files/FAQ.pdf

1. Entities which falls under the definition of Rule 3(1)(a), 3(1)(b) and 3(1)(c) of NFRA Rules 2018, has to filed NFRA-1 form if, the said entities has not filed ADT-1 with the MCA.

2. Entities falls under Rule 3(1)(e) , has to filed the E-form NFRA-1, if the condition given in the Rule 3(1)(e) is satisfied.

3. A foreign company which meets the condition stated in para 3(1)(e) and has business in India, needs to file NFRA-1 form w.r.t. its operations in India.

4. Applicability for strike off Entity: Such entity need not file NFRA-1 subject to the condition that the strike off is likely to occur with 3 months.

5. Entity may authorize Practising Company Secretary having an Identification Number to file NFRA-1 Form on behalf of the Entity.

Important Question on NFRA -1 Applicability

What is the reason that NFRA is not applicable to the Company as defined under Section 2(20) of the Companies Act, 2013 ?

Interpretation only

In E-form NFRA-1, details of Auditors is required to be filed. As under Companies Act, MCA E-form ADT-1 is available for the Companies register under Company Law to intimate the MCA (ROC) regarding the Appointment of Auditor.

But there is no form is prescribed for body corporate other than Company to register the particulars of appointment of Auditor with the Authority (MCA/ROC).

Hence the form is made mandatory to be filed by the Body Corporate (defined under section 2(11) of the CA, 2013) other than Company (defined under Section 2(20) of the CA, 2013)

Filing of E-form NFRA -1, not required to be filed by the Companies as defined under Section 2(20) of the Companies Act, 2013.

As per MCA Circular no. NF-11/1/2019-OoSecy-NFRA dated 01.07.2019, Entities stated in Rule 3(2) and Rule 3(3) are required to file E form NFRA -1 in order to inform the details of appointment of Auditor to the Authority.

MCA General Circular no. 12/2018 dated 13.12.2018 has clarified that NFRA -1 has to be filed within 30 days of deployment of E form for all Body Corporate governed by these rules (excluding Companies as defined under Section 2(20) of the Companies Act 2013, which are not required to file NFRA-1 Form.

Link of the Circulars: http://www.mca.gov.in/Ministry/pdf/FormNFRA1_0207019.pdf

The author is a Company Secretary and can also be reached at lalitrajput537@gmail.com