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Chap 1 Co Act

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Chap 1 Co Act

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Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

SRINATH GUPTA LAW AND AUDIT CLASSES


For CA (FOUNDATION, INTER AND FINAL)

CA INTER – QUESTIONS & ANSWERS


HYDERABAD
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By Srinath Gupta Law and Audit classes

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First edition – 2014

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Disclaimer:

While every efforts is taken to avoid errors or omissions in this publication, any mistake or
omission that may have crept in, is not intentional. It may be taken note of that neither publisher,
nor the author, will be responsible for any damage or loss of any kind arising to any one in any
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PREFACE TO FOURTH EDITION

It gives me immense pleasure to introduce the 4TH edition of this


book in the hands of its readers. This book is prepared keeping in
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efforts, rigorous hard work, concentrated and consistent work to taste
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WITH BEST WISHES,

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Previous year’s questions and answers


Chapter1. Features of companies
1. Explain clearly the concept of ‘perpetual succession’ and ’common seal’ in relation to a
company incorporated under the companies Act, 2013. {May2004, May2011}

The concept of Perpetual Succession

a) Perpetual succession is one of the features of company defined under section 9.


b) Life of the company does not depend on the life of members.
c) Members may come members may go but company remains same.
d) Company takes his birth by process of law.
e) To dissolve the company also procedure prescribed under company’s Act should be
followed.
f) Even death of the all members will not affect life of the company.

The concept of common seal

a) As a company is an artificial person, it cannot sign on its documents directly.


b) Hence, a company should have its own signature in the form of common seal, which is
required to be affixed the specified documents under the Act. Like share certificate etc
c) It is the official signature of a company.
d) A document on which common seal is affixed, it is deemed to be signed by the company
itself.
e) It should be accompanied by signature of secretary and 2 directors.
f) But ,as per company’s (Amendment) Act 2015 common seal is not mandatory

Example: - It is affixed a share certificates, debentures and negotiable instruments etc.

2. Explain the concept of separate legal entity , along with respective case laws (May 1994 ,nov
2000)

i.A company is separate from the members or promoters who constituted it.

ii.Company is a separate person having its own rights and obligations

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iii.All the assets of the company are held in the name of the company.

iv.All the liabilities are incurred by the company in its own name.

v.The members are not liable for the acts of the Company i.e. members are not punishable
for the faults of the company. (ex: company fails to pay income tax , so company has to
pay fine but not members)

vi.A company can enter into a contract on its own name with any person including with the
members.

vii.The company can sue and be sued in its own name

This can be explained with a famous case Salomon Vs. Salomon & Co. Ltd 1897 by Lord
MacNaghten

Facts of the case

a) Salomon was a boot manufacturing sole proprietor in white chapel road in London UK

b) He incorporated the company named Salomon & Co. Ltd he himself , his wife , 4 sons
and one daughter as the members of the company (total 7 members),

c) Transferred the whole business to Salomon & Co. Ltd. For ₤ 38,782 .

d) Salomon & Co gave the consideration as fallows

 20,000 shares, each share @ ₤ 1.

 ₤10,000 as secured debentures with charge on companies assets.

 ₤8782 in cash

e) The Company was wound up on which date the assets realized 6,000 pounds and
liabilities were 17,000 pounds (including 10,000 pounds secured debentures held by ‘S’
i.e. outside unsecured creditors were 7000 pounds )

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f) Contention of the outside creditors was one cannot owe money to himself

Decision

g) Court held that company is a real company by fulfilling all legal formalities and company
is different from promoter (Salomon), so secured debentures should be paid priority over
unsecured creditors.

In Lee v. Lee Air Farming pvt Limited (1960):

Facts of the case

a. Lee, a qualified pilot held all but one of the shares in the company and by the articles was
appointed director of the company and the chief pilot.
b. The life of the employees of the company was insured by an insurer.
c. Lee died while piloting the company’s aircraft and his widow claimed compensation or his
death, in the course of his employment.
d. Insurers challenged the claim on the ground that no compensation was due to Lee, as Lee
and Lee Air Farming Limited was one and the same person.

Decision :

e. Held, there was a valid contract of service between Lee and the company and Lee was
therefore, an employee.
f. Lee was a separate person from the company and so compensation was due to the
widow.
g. The magic of corporate personality enabled Lee to be the master and servant at the same
time. Mrs. Lee’s contention was upheld

3. What is the concept of Common seal? (may 1996)

The concept of common seal

a) As a company is an artificial person, it cannot sign on its documents directly.

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b) Hence, a company should have its own signature in the form of common seal, which is
required to be affixed the specified documents under the Act. Like share certificate etc
c) It is the official signature of a company.
d) A document on which common seal is affixed, it is deemed to be signed by the company.
e) It should be accompanied by signature of secretary and 2 directors.
f) But ,as per company’s (Amendment) Act 2015 common seal is not mandatory

Example: - It is affixed a share certificates, debentures and negotiable instruments etc.

4. Which of the institutions are regarded as public financial institutions’ under the companies
Act,2013?{May2004}

Public financial institutions Sec2 (72) of companies Act 2013

a) The "Life Insurance Corporation of India", established under Life insurance Corporation
Act, 1956.
b) Specified companies referred to in Unit Trust of India Act 2002.
c) Institutions notified by Central government
d) Such others Institutions as may be notified by central government in consultation with
Reserve bank of India.

Hence no institution shall be notified by the central government as public financial


institutions unless:-

a) It has been established (or) constituted under any central (or) state Act;
b) Not less than 51% of the paid-up share capital is held (or) controlled by the central
government (or) by any state government (or) governments (or)
c) Partly by the central government and partly by one (or) more of state governments.

Note: As per the definition given in the 2013 Act, IDBI, IFCI & ICICI are no more public financial
institution.

5. State whether the following statements true or false and give reasons? A company is a legal
person but not a citizen. Why? {Nov 2011}

LEGAL PERSON

a) Company is an artificial person but not a fictitious person.


b) It is the person in the eyes of law, It can do every thing what a natural person can do
c) A company is separate from its members or promoters who constituted it.
d) Company is a separate person having its own rights and obligations

THEREFORE COMPANY IS A LEGAL PERSON

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Citizenship of company

As per

a) Indian citizenship Act ,1955


b) Constitution of India
c) State trading corporation of India vs commercial tax officer, Visakhapatnam

 It was held that company is not a natural person. So, it is not a citizen
 Company cannot exercise those fundamental rights which are available for natural
person EXAMPLE: RIGHT TO VOTE
 Company can exercise those fundamental rights which are applicable for artificial
persons EXAMPLE : RIGHT TO DO ANY LEGAL BUSINESS

THEREFORE COMPANY IS NOT A CITIZEN

6. Some of the creditors of M/s Get Rich Quick Ltd. Have complained that the company was
formed by the promoters only to defraud the creditors and circumvent the compliance of legal
provisions of the companies Act,2013.In this context they seek, your advice as to the meaning
of corporate veil and when the promoters can be made personally liable for the debts of the
company.{Nov2004}

STEP1:- As per provisions of companies Act, 2013 the meaning of corporate veil is
as follows:-

Corporate veil

a) Company and the members who form it are treated as separate & different from each
other .
b) This concept of separate legal entity is known as corporate personality (or) corporate
facade

Lifting of corporate veil:-

a) As long as the company functions lawfully and legally , the concept of separate legal entity
will be respected.
b) If the corporate personality of the company is misused by the employees, members,
directors (or) any other officer then the corporate veil of the company will be disregarded by
treating the company and that fraudulent person as one and the same .
c) The individuals who are responsible for the misuse such as fraud (or) illegal activities will
be made personally liable.

FRAUDLENT TRADING:

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a) During the winding up of the company if is it is found that the purpose of the formation the
company is to defraud the creditors
b) Then the veil will be lifted between the company and promoters by treating both as one and
the same

STEP2:- Facts of the given case:-

a) Creditors, contended that M/S Get Rich Quick Ltd company was formed by the promoters
only to defraud the creditors

STEP3:- Decision

a) Since, the main purpose of formation of the company is to defraud the creditors.
b) The veil is lifted between the company and promoters of the company will be lifted by
treating both as one and the same
c) For all liabilities of the company ,promoters of the company will be personally liable

7. ABC Pvt ltd. Company is a private company having five members only. All the members of the
company were going by car to Mumbai in relation to some business. An accident took place
and all of them died. Answer with reasons , under the companies Act,2013.Whether existence
of the company has also come to the end {May 2008}

STEP1:- PROVISION OF LAW: perpetual succession- sec 9 of companies Act,2013

d) One of the features of the company is "perpetual succession".


e) This concept clearly states that the death/insanity (or) insolvency of individual members
does not in any way affect the continuity of the company.
f) Life of a company doesn’t depend upon the life of its members, members may come and go
but the company goes on forever.
g) Even death of the all members shall not affect life of the company.

STEP2:- Analysis of the given case:

a) In the given case, ABC Pvt Ltd is a private company having 5 members only.
b) All the members died while going to Mumbai on some business matter.
c) So number of members reduced to zero

STEP3:- Decision

a) Since, the life of the company does not depend on the life of the members.
b) Though all the members died in an accident, the existence of the company doesn’t come to
an end.
c) Company created by law and law alone can dissolve it.
d) Therefore, ABC Pvt Ltd Company continues to exists and still goes on.

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8. A public limited company has only seven shareholders, all the shares being fully paid-up. All
the shares of one shareholder are sold by the court in an auction and purchased by another
shareholder. The company continues to carry on business thereafter. Discuss the liabilities of
the shareholder of the company under the companies Act,2013{Nov 2008}

STEP1: provision of law : According to the sec 9 of companies Act, 2013

Corporate veil

a) Company and the members who form it are treated as separate & different from each other.
b) This concept of separate legal entity is known as corporate personality (or) corporate façade

Lifting of corporate veil:-

a) As long as the company functions lawfully and legally, the concept of separate legal entity
will be respected.
b) If the corporate personality of the company is misused by the employees, members,
directors (or) any other officer then the corporate veil of the company will be disregarded by
treating the company and that fraudulent person as one and the same.
c) The individuals who are responsible for the misuse such as fraud (or) illegal activities will
be made personally liable.

Reduction of number of members below statutory minimum

a) As per sec 3(1) of the companies Act ,2013, a public limited company can be incorporated
with voluntary association of minimum 7 persons.
b) If the number of members fall below statuary minimum ,the company has to take
necessary steps to increase the members to statuary minimum within 6months
c) If the company carries out business for more than 6 months without rise in numbers of
members to statuary minimum then all the shareholders who have the knowledge of such
default shall be personally liable for the debts of the company after the expiry of
6months.

STEP2: Analysis of the given case :-

a) In the given case, there are seven shareholders as per the statuary minimum.
b) Later, all the shares of one shareholder are sold in an auction by court to another
shareholder.
c) So number of members reduced to 6 only
d) The company continues business thereon.

STEP3:- Decision

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a) If the company continues business without increasing the members to statuary


minimum, then after the expiry of 6 months from the date of decrease in members below
statuary minimum, every member who has the knowledge of such default shall be
personally liable for debts of the company.
b) By lifting the veil between company and the members of the company.

9. F, an assesse, was a wealthy man earning huge income by way of dividend and interest. He
formed three private companies and agreed with each to hold block of investment as an
pretended loan. This way F divided his income into three part in a bid to reduce his tax
liability. Decide, for what purpose three companies were established? Whether the legal
personality of all the three companies may be disregarded?{June 2009}

STEP1:- provision of law : As per provisions of companies Act, 2013 the meaning
of corporate veil is as follows:-

Corporate veil

a) Company and the members who form it are treated as separate & different from each
other.
b) This concept of separate legal entity is known as corporate personality (or) corporate
facade

Lifting of corporate veil:-

a) As long as the company functions lawfully and legally, the concept of separate legal entity
will be respected.
b) If the corporate personality of the company is misused by the employees, members,
directors (or) any other officer then the corporate veil of the company will be disregarded by
treating the company and that fraudulent person as one and the same.
c) The individuals who are responsible for the misuse such as fraud (or) illegal activities will
be made personally liable.

Related case law: "Sir Dinshaw Manekjee Petit "(1927):

a) Dinshaw was the wealthier millionaire enjoying large profits and income in the form of
interest and dividend from its investments
b) He formed four Pvt companies along with his servants and divided the property into 4 parts
and transferred them to newly formed companies.
c) These companies do not have any business nor any assets other than the investments.
d) These Pvt companies received all the income and returned it to Dinshaw in the form of
pretended loan, Dinshaw received all the money and refused to pay the Taxes.
e) It was held that Dinshaw and all 4 companies formed by him are one and the same.

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STEP2: Analysis of the given case

a) F is getting the income in the form of interest and dividend from his investments .
b) F formed 3 imaginary companies and the main purpose of these 3 imaginary companies
is to divide the income and to avoid the payment of taxes

STEP3:- Decision

 Facts of the present case are similar to facts of sir dinshaw manecjk jee petit
 F and all 3 companies formed by him were one and the same because they were
formed only to enable him to avoid taxes.
 Therefore, Income earned by all these Pvt companies are treated as the income of the
assesee. (F)
 Hence, the legal personality of the 3 Pvt companies is disregarded by treating F
and those companies one and the same.

10. UMC limited has only 7 shareholders having fully paid-up shares. On 30th April, 2009, All the
shares of X (a shareholder of the company) are sold to y (another shareholder of the
company) in an auction by the order of the court. Z, (a shareholder of the company) was in
USA for a business trip from January and thus he was not aware of the developments. The
company continues to carry on its business thereafter. In December, 2009, the company
borrows a sum of rs.5lac from the unique bank. Later, the company was wound up and the
assets of the company were not sufficient for the payment of its liabilities. The Bank filed a
suit against y and z for recovery of the said loan from them. Decide the liabilities of y and z
under the provisions of companies Act, 2013. would your answer be the same, if the said loan
was taken in the month of March, 2009 {may2010}?

STEP1:- provision of law: According to provisions of companies Act,2013

Corporate veil

a) Company and the members who form it are treated as separate & different from each other.
b) This concept of separate legal entity is known as corporate personality (or) corporate façade

Lifting of corporate veil:-

a) As long as the company functions lawfully and legally, the concept of separate legal entity
will be respected.
b) If the corporate personality of the company is misused by the employees, members,
directors (or) any other officer then the corporate veil of the company will be disregarded by
treating the company and that fraudulent person as one and the same .
c) The individuals who are responsible for the misuse such as fraud (or) illegal activities will
be made personally liable.

Reduction of number of members below statutory minimum

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a) As per sec 3(1) of the companies Act ,2013, a public limited company can be incorporated
with voluntary association of minimum 7 persons.
b) If the number of members fall below statutory minimum, the company has to take necessary
steps to increase the members to statutory minimum within 6months
c) If the company carries out business for more than 6 months without rise in numbers of
members to statutory minimum then all the shareholders who have the knowledge of
such default shall be personally liable for the debts of the company after the expiry of
6months.

STEP2:- Analysis of the given case

a) In the given case UMC ltd has only 7 share holders having fully paid-up shares.
b) On 30th April ,2009 all the shares of x are sold to y in an auction by the court.
c) So number of members reduced to 6 only from 30th April , 2009
d) 'Z' was in USA trip from January and thus he was not aware of the developments. The
company continues to carry on its business thereafter.
e) In Dec 2009 the company borrows a sum of Rs 5 lakhs from unique bank.
f) Later the company filed a suit was wound up and the assets of the company were not
sufficient for payment of its liabilities.
g) The bank filed a suit against y and z for recovery of loan.

STEP3:- Decision

Case (1) If loan was taken in the month of Dec 2009

 Since in this case as UMC ltd has borrowed a sum of 5lakhs in Dec 2009 and number of
members were below statuary minimum from 30th April 2009,
 it means the company continues to carry on the business without rise in number of
members even after lapse of 6-month time so all the shareholders who have
knowledge of the default are personally liable.
 Y is personally liable for sum of 5Lakhs borrowed from Unique bank because he has
the knowledge of default.
 Z, since he has no knowledge about such developments, he isn’t liable .

Case (2) If loan was taken in the month of March 2009

 If loan was taken in the month of March 2009 , it falls before expiry of the 6months the
members are not liable ,the company itself is liable for the debt taken from bank.

11. Define relative as per Companies Act 2013 ( may 2007 and Nov 2003)
As per Sec 2 (77) relative is with reference to any person, means any one who is related to
another, if-
i. They are members of a HUF

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ii. They are a husband and wife or


iii. One person is related to the other in such a manner as may be prescribed

LIST OF PRESCRIBED RELATIVES


1. Father including step father
2. Mother including step mother
3. Son including step son
4. Daughter including step daughter
5. Sister including step sister
6. Brother including step brother

12. What is the concept of common seal?


The concept of common seal
 As a company is an artificial person, it cannot sign on its documents directly. Hence,
a company has its own signature in the form of common seal, which is required to be
affixed the specified documents under the Act.
 It is the official signature of a company.
 A document on which common seal is affixed, it is deemed to be signed by the
company.
 It should be accompanied by signature of secretary and 2 directors.
 But, as per company’s (Amendment) Act 2015 common seal is not mandatory

13. State whether the following statements are correct or incorrect. Nov 2015
(i) A limited company can become a partner in partnership firm
1. Company is an artificial person.
2. A company is a person in eyes of law and is capable of doing everything which a
normal person can do.
3. Therefore, a limited company can become a partner in a partnership firm.

14. There are cases where company law disregards the principle of corporate personality
or the principle that the company is a legal entity distinct from its shareholders or
members. Elucidate. (6 Marks) (nov 18) CA – foundation

15. A, an assessee, had large income in the form of dividend and interest. In order to
reduce his tax liability, he formed four private limited company and transferred his
investments to them in exchange of their shares. The income earned by the
companies was taken back by him as pretended loan. Can A be regarded as
separate from the private limited company he formed?(3 Marks) nov 19 CA –
foundation

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16. Red Limited was incorporated on 1st April, 2014 is facing severe effects of
depression of the economy. Owing to its bad financial status most of the members
have started withdrawing their holding from the company. The company had 250
members on 10th January, 2019. By 15th January, 2019, 244 members had withdrawn
their holding. No new member has invested in the company after 15th February till
date. Now, Mr. A, an existing member has approached you to advise him regarding
his liabilities in such a situation. NOV 19 RTP

STEP 1: PROVISION OF LAW

According to section 3A of the Companies Act, 2013, If at any time the number of members
of a company is reduced, in the case of a public company, below seven, in the case of a
private company, below two, and the company carries on business for more than six
months while the number of members is so reduced, every person who is a member of the
company during the time that it so carries on business after those six months and is
cognisant of the fact that it is carrying on business with less than seven members or two
members, as the case may be, shall be severally liable for the payment of the whole debts
of the company contracted during that time, and may be severally sued therefor.

STEP 2: FACTS OF PRESANT CASE


Hence, in the given situation, the number of member in the said public company have fallen
below 7 [250-244=6] and these members have continued beyond the specified limit of 6
months,

STEP 3: DECISION
the reduced members of the company during the period of 1 month shall be severally liable
for the payment of the whole debts of the company contracted during that time, and may be
severally sued therefor

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Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

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Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

SRINATH GUPTA LAW


AND AUDIT CLASSES
CA–CMA- CS BUSINESS LAWS
FOUNDATION
CA–CMA- CS CORPORATE AND OTHER LAWS , AUDIT AND ASSURANC
Ph :77-99-11-09-77 previous questions and answers
Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

INTER
CA–CMA- CS CORPORATE AND ECONOMIC LAWS , ADVANCED AUDITIN
FINAL PROFESSIONAL ETHICS

ACCA (F4) CORPORATE AND BUSINESS LAWS (F4), AUDIT AND ASS
(F8)
CLAT ENTRANCE

FACEBOOK SRINATH GUPTA LAW AND AUDIT CLASSES

WHATSAPP 7799110977

INSTAGRAM SRINATHGUPTA_LAWAUDIT_CLASSES

TELEGRAM CA FOUNDATION LAW BY SRINATH GUPTA – FOUNDATIO


CA INTER LAW AND AUDIT BY SRINATH GUPTA – INTER G
CA FINAL LAW AND AUDIT BY SRINATH GUPTA – FINAL G

YOUTUBE SRINATH GUPTA LAW AND AUDIT CLASSES

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

Ph :77-99-11-09-77 previous questions and answers


Face book : srinath gupta law and audit classes for ca (foundation - inter-final)

FOR ONLINE LIVE STREAMING- GOOGLE DRIVE


– PENDRIVE –FACE TO FACE CLASSES CALL
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Ph :77-99-11-09-77 previous questions and answers

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