Notes on Company Law for CA Final

By | April 10, 2016
Notes on Company Law
Points to Remember
1.     All amendments corresponding with companies act 2013 are compiled in this summary
2.     Many sections of new companies act 2013 is not notified by MCA (ministry of corporate affairs) so that sections are of old companies act 1956
3.     Wherever as per companies act written that means old companies act 1956
4.     For new companies act specifically mentioned …companies act 2013
5.     All judgement of courts are compiled in this summary
6.     All those older judgments based on old companies act 1956 which contradicts the new Companies act 2013… are not taken into consideration
7.     Comparative study of old companies act 1956 and new companies act 2013 is given Concept
Question
Explain the Advantages and Disadvantages of Incorporation of a Company. (L)?
Introduction

A company, in common parlance, means a group of persons associated together for the attainment of a common end, social or economic. It has “no strictly technical or legal meaning.”
According to sec. 3 (1) (ii) of the Companies Act, 1956 a company means a company formed and registered under the Companies Act, 1956 or any of the preceding Acts. Thus, a Company comes into existence only by registration under the Act, which can be termed as incorporation.

According to sec. 2 (20) of companies act 2013, this company this means a company incorporated under this Act or under any previous company law;
Advantages of incorporation
Incorporation offers certain advantages to a company as compared with all other kinds of business organizations. They are
1.     Independent corporate existence- the outstanding feature of a company is its independent corporate existence. By registration under the Companies Act, a company becomes vested with corporate personality, which is independent of, and distinct from its members. A company is a legal person. The decision of the House of Lords in Salomon v. Salomon & Co. Ltd. (1897 AC 22) is an authority on this principle:
One S incorporated a company to take over his personal business of manufacturing shoes and boots. The seven subscribers to the memorandum were all his family members, each taking only one share. The Board of Directors composed of S as managing director and his four sons. The business was transferred to the company at 40,000 pounds. S took 20,000 shares of 1 pound each n debentures worth 10,000 pounds. Within a year the company came to be wound up and the state if affairs was like this: Assets- 6,000 pounds; Liabilities- Debenture creditors-10,000 pounds, Unsecured creditors- 7,000 pounds.
It was argued on behalf of the unsecured creditors that, though the co was incorporated, it never had an independent existence. It was S himself trading under another name, but the House of Lords held Salomon & Co. Ltd. must be regarded as a separate person from S.
2.     Limited liability- limitation of liability is another major advantage of incorporation. The company, being a separate entity, leading its own business life, the members are not liable for its debts. The liability of members is limited by shares; each member is bound to pay the nominal value of shares held by them and his liability ends there.
3.     Perpetual succession- An incorporated company never dies. Members may come and go, but the company will go on forever. During the war all the members of a private company, while in general meeting, were killed by a bomb. But the company survived, not even a hydrogen bomb could have destroyed it (K/9 Meat Supplies (Guildford) Ltd., Re, 1966 (3) All E.R. 320).
4.     Common seal- Since a company has no physical existence, it must act through its agents and all such contracts entered into by such agents must be under the seal of the company. The common seal acts as the official seal of the company.

5.     Transferable shares- when joint stock companies were established the great object was that the shares should be capable of being easily transferred. Sec 82 gives expression to this principle by providing that “the shares or other interest of any member shall be movable property, transferable in the manner provided by the articles of the company.”
6.     Separate property- The property of an incorporated company is vested in the corporate body. The company is capable of holding and enjoying property in its own name. No members, not even all the members, can claim ownership of any asset of company’s assets.
7.     Capacity for suits – A company can sue and be sued in its own name. The names of managerial members need not be impleaded.
8.     Professional management- A company is capable of attracting professional managers. It is due to the fact that being attached to the management of the company gives them the status of business or executive class.

Disadvantages of incorporation

1.     Lifting of corporate veil- though for all purposes of law a company is regarded as a separate entity it is sometimes necessary to look at the persons behind the corporate veil.
a.     Determination of character- The House of Lords in Daimler Co Ltd. v. Continental Tyre and Rubber Co., held that a company though registered in England would assume an enemy character if the persons in de facto control of the company are residents of an enemy country.
b.     For benefit of revenue- The separate existence of a company may be disregarded when the only purpose for which it appears to have been formed is the evasion of taxes. – Sir Dinshaw Maneckjee, Re / Commissioner of Income Tax v. Meenakshi Mills Ltd.
c.      Fraud or improper conduct- In Gilford Motor Co v. Horne, a company was restrained from acting when its principal shareholder was bound by a restraint covenant and had incorporated a company only to escape the restraint.
d.     Agency or Trust or Government company- The separate existence of a company may be ignored when it is being used as an agent or trustee. In State of UP v. Renusagar Power Co, it was held that a power generating unit created by a company for its exclusive supply was not regarded as a separate entity for the purpose of excise.
e.     Under statutory provisions- The Act sometimes imposes personal liability on persons behind the veil in some instances like, where business is carried on beyond six months after the knowledge that the membership of company has gone below statutory minimum (sec 45), when contract is made by misdescribing the name of the company (sec 147), when business is carried on only to defraud creditors (sec 542). Advantages of incorporation
Under New companies Act2013—Statutory provisions are—
1.     for section 45 no new section is notified
2.     for section 147 new section is 12 i.e. Registered office of company—subsection (8) If any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of one thousand rupees for every day during which the default continues but not exceeding one lakh rupees.
3.     for section 542 ..new section is 339….Liability for Fraudulent conduct of business- Sub section
1.     If in the course of the winding up of a company, it appears that any business of the company has been carried on with intent to defraud creditors of the company or any other persons or for any fraudulent purpose, the Tribunal, on the application of the Official Liquidator, or the Company Liquidator or any creditor or contributory of the company, may, if it  thinks it proper so to do, declare that any person, who is or has been a director, manager, or officer of the company or any persons who were knowingly parties to the carrying on of the business in the manner a fore said shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Tribunal may direct: Provided that on the hearing of an application under this sub-section, the Official Liquidator or the Company Liquidator, as the case may be, may himself give evidence or call witnesses.
2.     Where the Tribunal makes any such declaration, it may give such further directions as it thinks proper for the purpose of giving effect to that declaration and, in particular,—
                                                              i.            make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the company held by or vested in him, or any person on his behalf, or any person claiming as assignee from or through the person liable or any person acting on his behalf;
                                                            ii.            make such further order as may be necessary for the purpose of enforcing any charge imposed under this sub-section.
4.     Formality and expense-Incorporation is a very expensive affair. It requires a number of formalities to be complied without has to the formation and administration of affairs.
5.      Company not a citizen – In State Trading Corporation of India. CTO, the SC held that a company though a legal person is not a citizen neither under the provisions of the Constitution nor under the Citizenship Act.
Question
Distinction between Company and Partnership. (M)?
Ans – The principal points of distinction between a company and a partnership are:
1.     Legal status – A company is a distinct legal person. A partnership firm is not distinct from the several members who compose it.
2.     Property-In partnership, the property of the firm is the property of the members comprising it. In a company, it belongs to the company and not to the members comprising it.

3.     Mode of creation-A company comes into existence after registration under the Companies Act, 1956, while registration is not compulsory in case of a partnership firm.

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Credits: Abhishek Garg

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