Different aspects of companies and penalties

8/8/2019 Different aspects of companies and penalties

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Introductio

nDifferent aspects of companies and penalties

Preparation of Prospectus:

Generally, the public issues of companies are handled by Merchant

Bankers who are responsible for getting the project appraised, finalizing the

cost of the project, profitability estimates and for preparing of Prospectus.

The Prospectus is submitted to SEBP for its approval.

For example: - Abridged Prospectus is a shorter version of the Prospectus

and contains all the salient features of a Prospectus. It accompanies the

application form of public issues.

A large number of new companies float public issues. While a large number

of these companies are genuine, quite a few may want to exploit the

investors. Therefore, it is very important that an investor before applying for

any issue identifies future potential of a company A part of the guidelines

issued by SEBP (Securities and Exchange Board of Pakistan) is the

disclosure of information to the public. This disclosure includes information

like the reason for raising the money, the way money is proposed to be

spent, the return expected on the money etc. This information is in the form

of Prospectus which also includes information regarding the size of the

issue, the current status of the company, its equity capital, its current and

past performance, the promoters, the project, cost of the project, means of

financing, product and capacity etc. It also contains lot of mandatory

information regarding underwriting and statutory compliances. This helps

investors to evaluate short term and long term prospects of the company.

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Section56. Penalty and Interpretation.-

(1) If any prospectus is issued, in contravention of section 54 or

55, the company, and every person who is knowingly a party

to the issue thereof, shall be punishable with fine notexceeding five thousand rupees.

(2) In section 54 and 55, the expression "expert" includes an

engineer, a valuer, an accountant and every other person whose profession

gives authority to a statement made by him.

Section66. Penalty for fraudulently inducing persons to investmoney. -

Any person who, either by knowingly or recklessly making anystatement, promise or forecast which is false, deceptive or

misleading, or by any dishonest concealment of material facts,

induces or attempts to induce another person to enter into, or to

offer to enter into,-

(a) any agreement for, or with a view to, acquiring, disposing

of, subscribing for, or underwriting shares or debentures; or

(b) any agreement the purpose or pretended purpose of which is tosecure a profit to any of the parties from the yield of shares or debentures,

or by reference to fluctuations in the value of shares or debentures; shall

be punishable with imprisonment of either description for a term which

may extend to three years, or with fine which may extend to twenty

thousand rupees, or with both.

shareholders of a company:

A mutual shareholder or stockholder is an individual or company(including a corporation) that legally owns one or more shares ofstockin a

joint stock company. A company's shareholders collectively own that

company and are the members of the company by signing the memorandum

of association . Thus, the typical goal of such companies is to enhance

shareholder value.

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Stockholders are granted special privileges depending on the class of stock.

These rights may include:

The right to vote on matters such as elections to theboard of directors.

Usually, stockholders have one vote per share owned, but sometimes

this is not the case.

The right to propose shareholder resolutions.

The right to share in distributions of the company's income.

The right to purchase new shares issued by the company.

The right to a company's assets during a liquidation of the company.

However, stockholder's rights to a company's assets are subordinate to the

rights of the company's creditors. This means that stockholders typically

receive nothing if a company is liquidated afterbankruptcy (if the company

had had enough to pay its creditors, it would not have entered bankruptcy,although a stock may have value after a bankruptcy if there is the possibility

that the debts of the company will be restructured).

Section105. Penalty on concealment of name of creditor. -

If any officer of the company willfully conceals the name of any

creditor entitled to object to the reduction, or willfully

misrepresents the nature or amount of the debt or claim of any

creditor, or if any officer of the company abets any such

concealment or misrepresentation as aforesaid, every such officershall be punishable with imprisonment for a term which may

extend to one year, or with fine, or with both.

Management of a companies

Management in all business areas and human organization activity is the act

of getting people together to accomplish desired goals and objectives.

Management comprisesplanning, organizing, staffing, leading or directing,

and controlling an organization (a group of one or more people or entities) or

effort for the purpose of accomplishing a goal. Resourcing encompasses the

deployment and manipulation of human resources, financial resources,

technological resources, and natural resources.

Because organizations can be viewed as systems, management can also be

defined as human action, including design, to facilitate the production of

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chief executive of a company for a period not exceeding three

years.

Section229. Penalty for contravention of section 226, 227 or 228.-

Whoever contravenes or authorizes or permits the contravention

of any of the provisions of section 226 or section 227 or section

228 shall be punished with a fine which may extend to five

thousand rupees and shall also liable to pay the loss suffered by

the depositor of security or the employee on account of such

contravention.

Preparation of Annual Accounts

Annual Accounts

All limited and unlimited companies, whether or not they are trading,

must keep accounting records. Certain information may be omitted from

the accounts of medium-sized and small companies.

All limited companies whether or not they are trading, must keep accounting

records and file accounts with the registrar each accounting period.

Accounts must be produced to a standard that can be scanned and

reproduced electronically and made available to the public. The amount

of financial information available depends on the size of the company.See Company filing Requirements for more information.

Unless the subject company is claiming exemption as a medium sized,

small, audit-exempt ordormant company, the accounts will include:

Directors report - containing a business review (unless a small

company) signed by a director or company secretary

Balance sheet - signed by a director

Profit and loss account - income and expenditure if the company is not

trading for profit Auditors' report - signed by the auditor

Notes to the accounts

Group accounts (if applicable)

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Section244. Penalty for improper issue, circulation or publicationof balance-sheet or profit and loss account. -

If any copy of a balance-sheet is issued, circulated or published

without there being annexed or attached there to, as the case maybe, a copy each of (i) the profit and loss account or income and

expenditure account, (ii) any accounts, reports, notes or

statements referred therein, (iii) the auditor's report, and (iv) the

directors' report, the company, and every officer of the company

who is knowingly and willfully in default shall be punishable with

fine which may extend to five thousand rupees.

Section 282 K. Penalty for making false statement, etc.__

(1) Notwithstanding anything contained in any other provision

of this Ordinance, if any person, being the chairman,

director, chief executive, by whatever name called or official

liquidator or any officer of a NBFC in any document,

prospectus, report, return, accounts, information or

explanation required to be furnished in pursuance of this

Ordinance or the rules made thereunder, willfully makes a

statement which is false in any material particular knowing

it to be false, or willfully omits to make a material statement,mismanages the affairs of the NBFC or misuses his position

for gaining direct or indirect benefit for himself or any of his

family members, he shall be punishable with imprisonment

for a term which may extend to three years and shall also be

liable to fine which shall be not less than one hundred

thousand rupees, and shall be ordered by the Court trying the

offence, to deliver up or refund within a time to be fixed by

the Court any property acquired or gained by him in his own

name or in the name of his family members by so

mismanaging the affairs of the NBFC or misusing hisposition or, in default, to suffer imprisonment for a term

which may extend to three years.

(2) Any officer, director or chief executive of a NBFC who is

either directly or indirectly owned, controlled or managed by

the Federal Government or a Provincial Government who

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extends, or aides in extending, a loan, advance, or any

financial facility to a borrower or customer on the verbal

instruction of a holder of a public officer without reducing

the terms of the instructions into writing and drawing them

to the attention of his superior officer, or the board of

directors, shall be guilty of an offence punishable with

imprisonment of either description which may extend to one

year, or with fine, or with both, in addition to such other

action which may be taken against him in accordance with

law.

(3) If any company which is not a NBFC, or a company which

does not hold a license under section 282 C or the licence

granted to which has been cancelled, or any individual or

association or body of individuals, transacts the businessspecified in 282 A, the chief executive, by whatever name

called, of the company and every director, manager, and

other officer of the company, and the individual and every

member of the association or body of individuals, shall be

deemed to be guilty of such contravention and shall be

punishable with imprisonment of either description for a

term which may extend to seven years and with fine the

amount of which shall not exceed one million and shall be

ordered by the Court trying the offence to pay the fine

within a time to be fixed by the Court or in default to suffer

further imprisonment for a term which may extend to five

years.

Explanation:- For the purposes of this section (282(K)) a

director or chief executive or other officer shall be deemed

to have acted knowingly if he has departed from established

NBFC business practices and procedures or circumvented

the regulations or directions/ restrictions laid down by the

Commission from time to time.

Section492. Penalty for false statement.-

Whoever in any return, report, certificate, balance sheet, profit

and loss account, income and expenditure account, prospectus,

offer of shares, books of accounts, application, information or

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explanation required by or for the purposes of any of the

provisions of this Ordinance or pursuant to an order or direction

given under this Ordinance makes a statement which is false or

incorrect in any material particular, or omits any material fact

knowing it to be material, shall be punishable with fine not

exceeding one hundred thousand rupees

The Auditor of Limited Company

Auditor

An auditor is a person who makes an independent report to a company'smembers as to whether the company has prepared its financial statements

in accordance with company law and the applicable financial reporting

framework. The report must also state whether a company's accounts give

a true and fair view of its affairs at the end of the year.

How do I appoint an auditor?

An auditor must be appointed for each financial year, unless the directors

reasonably resolve otherwise on the ground that audited accounts are

unlikely to be required. The rules are different for public and private

companies.

For public companies, the directors appoint the first auditor of the company.

The auditor then holds office until the end of the first meeting of the

company at which the directors lay its accounts before the members. At that

meeting, the members of the company can re-appoint the auditor, or appoint

a different auditor, to hold office from the end of that meeting until the end

of the next meeting at which the directors lay accounts.

For private companies, the directors appoint the first auditor of the company.

The members may then appoint or re-appoint an auditor each year at a

meeting of the company's members, or by written resolution, within 28 days

of the directors sending the accounts to the members. If they do not do so for

a particular year, however, the appointed auditor remains in office until the

members pass a resolution to reappoint him or to remove him as auditor (5%

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of members, or fewer if the articles say so, can force the consideration of a

resolution to remove an auditor). This provision about remaining in office,

however, does not apply if the auditors most recent appointment was by the

directors or the companys articles require annual appointment.

Section259. Penalty for non-compliance with provisions by

companies.-

If default is made by a company in complying with any of the

provisions of sections 252 to 254 or 256 to 258, the company and

every officer of the company who is knowingly and wilfully a

party to the default shall be punishable with fine which may

extend to fifty thousand rupees and in the case of continuing

default to a further fine which may extend to two thousand rupees

for every day after the first during which the default continues.

Section260. Penalty for non-compliance with provisions byauditors. -

(1) If any auditor's report is made, or any document of the

company is signed or authenticated otherwise than in

conformity with the requirements of section 157, section 255

or section 257 or is otherwise untrue or fails to bring out

material facts about the affairs of the company or matter towhich it purports to relate, the auditor concerned and the

person, if any, other than the auditor who signs the report or

sign or authenticates the document, and in the case of a firm

all partners of the firm, shall, if the default is willful, be

punishable with fine which may extend to one hundred

thousand rupees.

(2) If the auditor's report to which sub-section (1) applies is made

with the intent to profit such auditor or any other person or to put another person to a disadvantage or loss or for a material consideration, the

auditor shall, in addition to the penalty provided by that sub-section, be

punishable with imprisonment for a term which may extend to one year

and with fine which may extend to one hundred thousand rupees.

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Non-Banking Finance Companies

Non-banking financial companies, or NBFCs, are financial institutions

that provide banking services, but do not hold a banking license. These

institutions are not allowed to take deposits from the public. Nonetheless,all operations of these institutions are still covered under banking

regulations. NBFCs do offer all sorts of banking services, such as loans

and credit facilities, retirement planning, money markets, underwriting,

and merger activates. The number of non-banking financial

companies has expanded greatly in the last several years as venture

capital companies, retail and industrial companies have entered the

lending business.

Section 282 M. Punishment and adjudication of fine or penalty.__(1) Where a penalty or fine other than fine in addition to, or in

lieu of, imprisonment is provided for any offence,

contravention of, or default in complying with, any

provision of this Part or rules made there under or a directive

or order of the Commission or other officer or authority

empowered to issue a directive under any provision of this

Ordinance, the same shall be adjudged and imposed by the

Commission or any officer of the Commission empowered,

in writing, to exercise the said powers in respect of any caseor class of cases, either to the exclusion of, or concurrently

with, any other officer of the Commission:

Provided that the fine or penalty as aforesaid shall be

imposed after giving the person concerned an opportunity to

show cause why he should not be punished for the alleged

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2. For the purposes of jurisdiction to wind up companies, the expression

registered office means the. place which has longest been the registered

office of the company during the six months immediately preceding the

presentation of the petition for winding up. .

3. Nothing in this section shall invalidate a proceeding by reason of its

being taken in a court other than the High Court or a Court empowered

under sub-section (1).

CONSTITUTION OF COMPANY BENCHES

There shall in each High Court be one or more benches, each to be known

as the Company Bench, to be constituted by the Chief Justice of the High

Court to exercise the jurisdiction vested in the High Court under Section

7.

PROCEDURE OF THE COURT

1. Notwithstanding anything contained in any other law, all matters

coming before the Court under this Ordinance shall be disposed of, and

the judgment pronounced, as expeditiously as possible but not later than

ninety days from the date of presentation of the petition or application to

the Court and, except in extraordinary circumstances and on grounds to be

recorded, the Court shall hear the case from day to day.

Explanation: In this sub-section, 11judgement means a final judgment

recorded in writing.

2. The hearing of the matters referred to in sub-section (1) shall not be

adjourned except for sufficient cause to be recorded or for more than

fourteen days at any one time or for more than thirty days in all.

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3. Nothing in this section shall invalidate a proceeding by reason of its

being taken in a court other than the High Court or a court empowered

under sub-section (1).

APPEALS AGAINST COURT ORDERS

(1) Notwithstanding anything contained in any other law, and appeal

against any order, decision or judgment of the Court under this Ordinance

shall lie to the Supreme Court where the company ordered to be wound

up has a paid-up share capital of not less than one million rupees; and,

where the company ordered to be wound up has a paid-up capital of less

than one million rupees, or has no share capital, such appeal shall lie only

if the Supreme Court grants leave to appeal.

(2) Save as provided in sub-section (1), an appeal from any order madeor decision given by the Court shall lie in the same manner in which and

subject to the same conditions under which appeals lie from any order or

decision of the Court.

(3) An appeal preferred under sub-section (2) shall be finally disposed of

by the Court hearing the appeal within ninety days of the submission of

the appeal.

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Practicalstudy

PLATINUM INSURANCE COMPANY

LIMITED

Platinum Insurance Company Limited (PICL) was incorporated as a public

limited company in 1981 to carry on all kinds of General Insurance businessand commenced its business in 1982. PICL shares are quoted on Karachi

and Lahore stock exchanges. The company is engaged in general insurance

business comprising of fire and property, marine, motor, etc through a

network of three branches in Sindh Zone, six branches in Punjab Zone and

two branches in NWFP Zone. Number of company employees at the end of

2006 was 18 (2005: 18 employees). The authorized capital of PICL is Rs 80

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million, comprising eight million shares of Rs 10 each. As on December 31,

2006 the paid up capital was Rs 80 million, which was held by 374

individuals. No other details on the company ownership have been provided.

The notice of next AGM included a proposal to raise the authorized capital

from Rs 80 million to Rs 120 million.

Penalty for false statement

The Auditors in their Report to the Members, before expressing an opinion,

make an exception for the effect of the matters referred to in the preceding

paragraphs (i) to (iv), which read: "

i) As stated in Note 11 to the financial statements, no provision for

amount due against degree in the sum of Rs 31,614, 808 has been

made in these accounts. The matter has been referred to Assistant

Session Judge, Islamabad for the execution of degree amount.

ii) As stated in Note 8 to the financial statements, no details for leased

vehicles has been provided to us. Accordingly the amount of the

leased vehicles and related liabilities could not be ascertained.

iii) The company has not carried out actuarial valuation to determine

the present value of defined benefits obligations relating togratuity, in accordance with International Accounting Standard -

19 [Employee Benefits]. Consequently we are unable to report on

the amount of Provision for Gratuity required as at December 31,

2006.

iv) The company has not adopted IAS 12 [Income Taxes] relating to

provision for deferred taxation. Accordingly we were unable to

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report on short fall if any on the provisions for deferred taxation."

According to Note 11, the Degree amount [M/s High Ways Bridge,

contractors International (Pvt) Limited] represents claim paid to

Daewoo Corporation against performance and mobilisation

advance guarantee. The company filed counter suit and got the

degree in their favour. On Staff retirement benefits, according to

Note 4.10, the company operates an unfunded retirement gratuity

scheme. Gratuity is accounted for as and when paid. The

requirement of IAS-19, Employee Benefits (revised) has not been

complied with.

Review Report

In their Review Report, the Auditors on Statement of Compliance with

Best Practices observed 101 million on December 31, 2006 compared toRs 103 million on December 31, 2005. The increases or decreases in

assets or liabilities are relatively small. Shareholders Equity on December

31, 2006 as percentage of Total Assets was 73% (2005: 71%), which

reflects PICL's financial strength. During the year ended December 31,

2006, PICL has Written Premium of Rs 8.3 million. The net premium

revenue for the year however saw 9% increase to Rs 5.002 million as

compared to Rs 4.576 million in 2005. As percentage of Net Premium

Revenue, Net Claims have dropped from 45% in the previous year to

34% in the year 2006. However, for the year under review there was big

increase in Net Commission over the previous year and consequently,

underwriting profit for the year was at Rs 2.153 million (43% of net

premium revenue) compared to Rs 2.159 million (47% of the net

premium revenue) for the previous year. PICL closed the year with Loss

after tax at Rs 0.488 million as compared to Rs 0.588 million Loss after

tax for 2005, a decrease of 17%. Performance statistics are given below.

Allegations

a) In the notes to the Accounts the accounting period was wrongly stated

as 31-12-07.

b)

In note No. 1 of the Accounts, it was stated that the Appellant is only

listed in Karachi Stock Exchange (KSE). The fact that Appellant

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was also listed in Lahore Stock Exchange (LSE) was not disclosed.

c) The pattern of share holding annexed to the Accounts of the Appellant

reflects that there was a shareholder, holding 3,058,200 shares

constituting 25.48% of the total shares issued. The Appellant failed todisclose separately the name of the person holding more than 10% of

total capital as required by the Code of Corporate Governance.

d) The total number of shares reported in the said pattern of shareholding

was not accurate4 The shares reflected in the detailed note were

11,951,700 which were in disagreement with the total of 12 million

shares issued. that the implementation of Code of Corporate

Governance was still in process. The Directors in their Report state

that the board of Directors remained engaged in performing their

duties as required under the code of corporate governance, which has

been adopted for compliance. Total assets of PICL decreased slightly

(by 2%) to Rs

Court Order

(a) The penalty was not imposed on just one misstatement but was

a collective penalty for all the misstatements made by theAppellant. Further, these were not just typographical errors as

the whole annual report was dubious due to the fact that

Hameed Khan and Co shown as auditors in the annual

accounts who had conducted the audit of the Appellant in fact

through their letter dated 17-9-09 informed the Respondent

that they have never audited the Accounts of year 2007 and

2008 of the Appellant. It was contended that the annual report

is false and forged, and the management of the Appellant has

defraud its stakeholders. It was further argued that therequirements of disclosing the pattern of shareholding in the

annual report and in form A are two separate requirements of

the Ordinance, and mere correction in the latter does not

exempt the Appellant from applicability of section 492 of the

Ordinance.

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(b) The Appellant has made misstatement in the Accounts and

have submitted fake audited annual accounts which is violation

of the Ordinance and not that of Code of Corporate

Governance. Section 492 of the Ordinance was invoked to

penalize the Appellant for making wrong statements in the

Accounts.

(c) The penalty imposed on the Appellant is in accordance with

the provisions of section 492 of the Ordinance. The maximum

penalty Rs. 500, 000 could have been invoked, however, a

lenient view was taken by the Respondent and a penalty of Rs.

100,000 was imposed on the Appellant.

The Data Collection

Primary Data

BOOKS

Company Law in Pakistan (khawaja Amjad Saeed)

5th Edition

Page # 179,183,187

Business Law

Web site

www.karmayog.org

www.wikipedia.org

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www.corporatewatch.org.uk

http://www.investopedia.com

Secondary Data

Organization

Platinum Insurance Company Limited

Web site

www.picl.com.pk /

http://www.csrpakistan.pk/

http://secp.gov.pk

Conclusion:

We know that business is an economic activity, which is carried out on a

regular basis to earn profit. The biggest challenge today is linking

incentives to performance both large and small organizations have madea variety of efforts to do so, with mixed results. The problems have

ranged from a lack of communication to a change in the business

environment. Another aspect is to knowing the rules of regulation which

is very primary thing to follow as we above discuss and analyze that how

companies doing irregularities and punished by the authorities.

There is the need for SECP to fix limits on insurance companies

generating premium income. According to them, the mad rush for

generating premium income be better tied to an agreed uniform method

of indexation, its net solvency margins, paid up capital and free reservesetc. Such a prudent policy adopted by SECP is deemed necessary for the

industry to grow on healthy lines which would help and guide the

insurance companies to undertake proper risk analysis, adopt risk

management techniques and rate the risk adequately. Insurance

companies with good arrangements must not waste their automatic

reinsurance capacities due to arbitrary fixation of single risk limits

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imposed by the banks. Here again there is no uniform policy adopted by

the banks and it is expected of SECP to play its due part in resolving the

issue.

Recommendations:

Companies showing wrong statements to attract new customer and

shareholder which is totally wrong thing. My recommendation is only to the

organization that they should conceder the rules and regulation which is the

essential part of business. There is nothing above from the law and its

respect is significant part of our life.

References

BOOKS

Company Law in Pakistan (khawaja Amjad Saeed)

5th Edition

Page # 179,183,187

Business Law

Web site

www.karmayog.org

www.wikipedia.org

www.corporatewatch.org.uk

http://www.investopedia.com

22
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www.picl.com.pk /

http://www.csrpakistan.pk/

http://secp.gov.pk
http://www.csrpakistan.pk/http://secp.gov.pk/http://www.csrpakistan.pk/http://secp.gov.pk/

Different aspects of companies and penalties

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