Section 140: Removal, resignation of auditor and giving of special notice
This section is for the removal, resignation, and replacement of auditors, including the procedures and consequences for such actions.
Penalty
(3) If the auditor does not comply with the provisions of sub-section (2), he or it shall be liable to a penalty of fifty thousand rupees or an amount equal to the remuneration of the auditor, whichever is less, and in case of continuing failure, with a further penalty of five hundred rupees for each day after the first during which such failure continues, subject to a maximum of 1[two lakh rupees].]
The section, clause by clause
What the section says
In plain terms
(1)The auditor appointed under section 139 may be removed from his office before the expiry of his term only by a special resolution of the company, after obtaining the previous approval of the Central Government in that behalf in the prescribed manner:
A company can remove its auditor before their term ends only by a special resolution, after getting approval from the Central Government, and the auditor must be given a chance to be heard.
provisoProvided that before taking any action under this sub-section, the auditor concerned shall be given a reasonable opportunity of being heard.
(2)The auditor who has resigned from the company shall file within a period of thirty days from the date of resignation, a statement in the prescribed form with the company and the Registrar, and in case of companies referred to in sub-section (5) of section 139, the auditor shall also file such statement with the Comptroller and Auditor-General of India, indicating the reasons and other facts as may be relevant with regard to his resignation.
An auditor who resigns must file a statement with the company and the Registrar within 30 days, explaining why they resigned.
(3)If the auditor does not comply with the provisions of sub-section (2), he or it shall be liable to a penalty of fifty thousand rupees or an amount equal to the remuneration of the auditor, whichever is less, and in case of continuing failure, with a further penalty of five hundred rupees for each day after the first during which such failure continues, subject to a maximum of 1[two lakh rupees].]
(4)(i) Special notice shall be required for a resolution at an annual general meeting appointing as auditor a person other than a retiring auditor, or providing expressly that a retiring auditor shall not be re-appointed, except where the retiring auditor has completed a consecutive tenure of five years or, as the case may be, ten years, as provided under sub-section (2) of section 139.
A special notice is required to appoint a new auditor or to not re-appoint the current auditor at an annual general meeting, unless the current auditor has already served 5 or 10 consecutive years.
(4)(ii)On receipt of notice of such a resolution, the company shall forthwith send a copy thereof to the retiring auditor.
(4)(iii)Where notice is given of such a resolution and the retiring auditor makes with respect thereto representation in writing to the company (not exceeding a reasonable length) and requests its notification to members of the company, the company shall, unless the representation is received by it too late for it to do so,—
(4)(a)in any notice of the resolution given to members of the company, state the fact of the representation having been made; and
(4)(b)send a copy of the representation to every member of the company to whom notice of the meeting is sent, whether before or after the receipt of the representation by the company, and if a copy of the representation is not sent as aforesaid because it was received too late or because of the company’s default, the auditor may (without prejudice to his right to be heard orally) require that the representation shall be read out at the meeting:
provisoProvided that if a copy of representation is not sent as aforesaid, a copy thereof shall be filed with the Registrar:
provisoProvided further that if the Tribunal is satisfied on an application either of the company or of any other aggrieved person that the rights conferred by this sub-section are being abused by the auditor, then, the copy of the representation may not be sent and the representation need not be read out at the meeting.
(5)Without prejudice to any action under the provisions of this Act or any other law for the time being in force, the Tribunal either suo motu or on an application made to it by the Central Government or by any person concerned, if it is satisfied that the auditor of a company has, whether directly or in directly, acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, the company or its directors or officers, it may, by order, direct the company to change its auditors:
The Tribunal can order a company to change its auditor if it finds that the auditor has acted in a fraudulent manner, and the auditor may be banned from being appointed as an auditor of any company for 5 years.
provisoProvided that if the application is made by the Central Government and the Tribunal is satisfied that any change of the auditor is required, it shall within fifteen days of receipt of such application, make an order that he shall not function as an auditor and the Central Government may appoint another auditor in his place:
provisoProvided further that an auditor, whether individual or firm, against whom final order has been passed by the Tribunal under this section shall not be eligible to be appointed as an auditor of any company for a period of five years from the date of passing of the order and the auditor shall also be liable for action under section 447.
explanationExplanation I.—It is hereby clarified that the case of a firm, the liability shall be of the firm and that of every partner or partners who acted in a fraudulent manner or abetted or colluded in any fraud by, or in relation to, the company or its director or officers.
explanationExplanation II.—For the purposes of this Chapter the word “auditor” includes a firm of auditors.
The right-hand column is written from the section text, not quoted from it, and it has no legal force. Where the two differ, the left-hand column is the law.
Amendment notes
- 1. Subs. by Act 22 of 2019, s. 23, for sub-section (3) (w.e.f. 2-11-2018).
- 1. Subs. by Act 29 of 2020, s. 29, for “five lakh rupees” (w.e.f. 21-12-2020).
This section refers to
Referred to by
Search the whole Act, or ask it a question, in the interactive browser.
Reproduced from the official India Code print for reference. Check the current text on India Code before you rely on it, and read the section alongside its Rules. Nothing here is legal advice.