Companies Act Section 139 — Appointment of auditors
CHAPTER X AUDIT AND AUDITORS
Commercial / Corporate
Summary
Sub-section (1) sets the general rule for appointing auditors. Every company must appoint an individual or a firm as its auditor at the first annual general meeting. That auditor holds office from the end of that meeting until the end of the company's sixth annual general meeting, and then for every six meetings after that. The manner and procedure for members to select auditors at such meetings will be as prescribed by rules. Before the appointment is made, the company must obtain the auditor's written consent and a certificate from the auditor stating that the appointment, if made, will comply with prescribed conditions. The certificate must also indicate whether the auditor meets the criteria in section 141. The company must inform the auditor of the appointment and file a notice of the appointment with the Registrar within fifteen days of the meeting where the appointment was made. For this Chapter, the word "appointment" includes re-appointment.
Sub-section (2) places limits on how long certain companies can keep the same auditor. A listed company, or a company belonging to a prescribed class, cannot appoint or re-appoint an individual as auditor for more than one term of five consecutive years, and cannot appoint or re-appoint an audit firm for more than two terms of five consecutive years. After an individual auditor completes a five-year term, that individual cannot be re-appointed as auditor of the same company for five years from the completion of the term. Similarly, after an audit firm completes its term, that firm cannot be re-appointed as auditor of the same company for five years. Also, as of the date of appointment, no audit firm that shares a common partner with another audit firm whose tenure has expired in the company immediately preceding the financial year can be appointed as auditor of that same company for five years. A company existing before the commencement of this Act that must comply with these limits must do so no later than the date of its first annual general meeting held within the period specified under sub-section (1) of section 96, after three years from the commencement of this Act. Nothing in this sub-section affects the company's right to remove an auditor or the auditor's right to resign.
Sub-section (3) allows members of a company to pass a resolution providing for additional audit arrangements. Members may resolve that, in the audit firm appointed by the company, the auditing partner and the partner's team shall be rotated at intervals decided by the members, or that the audit shall be conducted by more than one auditor.
Sub-section (4) gives the Central Government the power to prescribe, by rules, the manner in which companies shall rotate their auditors in line with sub-section (2). For this Chapter, the word "firm" includes a limited liability partnership incorporated under the Limited Liability Partnership Act, 2008.
Sub-section (5) deals with Government companies and companies owned or controlled by the government. Despite sub-section (1), for a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, any State Government, or partly by the Central Government and partly by one or more State Governments, the Comptroller and Auditor-General of India must appoint an auditor who is duly qualified to be appointed as an auditor of companies under this Act. This appointment must be made within one hundred and eighty days from the commencement of the financial year, and the appointed auditor holds office until the conclusion of the annual general meeting.
Sub-section (6) covers the first auditor of a company that is not a Government company. Despite sub-section (1), the first auditor of such a company must be appointed by the Board of Directors within thirty days from the date of registration of the company. If the Board fails to appoint the auditor, it must inform the members of the company, who then have ninety days to appoint the auditor at an extraordinary general meeting. This auditor holds office until the conclusion of the first annual general meeting.
Sub-section (7) covers the first auditor of a Government company or a company owned or controlled by the government. Despite sub-sections (1) and (5), the first auditor of such a company must be appointed by the Comptroller and Auditor-General of India within sixty days from the date of registration of the company. If the Comptroller and Auditor-General does not appoint the auditor within that period, the Board of Directors must appoint the auditor within the next thirty days. If the Board also fails to appoint, it must inform the members, who then have sixty days to appoint the auditor at an extraordinary general meeting. This auditor holds office until the conclusion of the first annual general meeting.
Sub-section (8) addresses casual vacancies in the office of an auditor. For a company whose accounts are not subject to audit by an auditor appointed by the Comptroller and Auditor-General of India, a casual vacancy must be filled by the Board of Directors within thirty days. If the vacancy arises from the resignation of an auditor, the appointment must also be approved by the company at a general meeting convened within three months of the Board's recommendation, and the new auditor holds office until the conclusion of the next annual general meeting. For a company whose accounts are subject to audit by an auditor appointed by the Comptroller and Auditor-General of India, the vacancy must be filled by the Comptroller and Auditor-General within thirty days. If the Comptroller and Auditor-General does not fill the vacancy within that period, the Board of Directors must fill it within the next thirty days.
Sub-section (9) allows a retiring auditor to be re-appointed at an annual general meeting, subject to sub-section (1) and the rules made under it, if three conditions are met. First, the auditor is not disqualified for re-appointment. Second, the auditor has not given the company a written notice of unwillingness to be re-appointed. Third, a special resolution has not been passed at that meeting appointing some other auditor or expressly providing that the retiring auditor
Official Text
(1) Subject to the provisions of this Chapter, every company shall, at the first annual general meeting, appoint an individual or a firm as an auditor who shall hold office from the conclusion of that meeting till the conclusion of its sixth annual general meeting and thereafter till the conclusion of every sixth meeting and the manner and procedure of selection of auditors by the members of the company at such meeting shall be such as may be prescribed: 9* * * * * Provided further that before such appointment is made, the written consent of the auditor to such appointment, and a certificate from him or it that the appointment, if made, shall be in accordance with the conditions as may be prescribed, shall be obtained from the auditor:
Provided also that the certificate shall also indicate whether the auditor satisfies the criteria provided in section 141:
Provided also that the company shall inform the auditor concerned of his or its appointment, and also file a notice of such appointment with the Registrar within fifteen days of the meeting in which the auditor is appointed.
Explanation.—For the purposes of this Chapter, “appointment” includes re-appointment.
(2) No listed company or a company belonging to such class or classes of companies as may be prescribed, shall appoint or re-appoint—
(a) an individual as auditor for more than one term of five consecutive years; and
(b) an audit firm as auditor for more than two terms of five consecutive years:
Provided that—
(i) an individual auditor who has completed his term under clause (a) shall not be eligible for re-appointment as auditor in the same company for five years from the completion of his term;
(ii) an audit firm which has completed its term under clause (b), shall not be eligible for re-appointment as auditor in the same company for five years from the completion of such term:
Provided further that as on the date of appointment no audit firm having a common partner or partners to the other audit firm, whose tenure has expired in a company immediately preceding the financial year, shall be appointed as auditor of the same company for a period of five years: 1[Provided also that every company, existing on or before the commencement of this Act which is required to comply with the provisions of this sub-section, shall comply with requirement of this sub-section within a period which shall not be later than the date of the first annual general meeting of the company held, within the period specified under sub-section (1) of section 96, after three years from the date of commencement of this Act:] Provided also that, nothing contained in this sub-section shall prejudice the right of the company to remove an auditor or the right of the auditor to resign from such office of the company.
(3) Subject to the provisions of this Act, members of a company may resolve to provide that—
(a) in the audit firm appointed by it, the auditing partner and his team shall be rotated at such intervals as may be resolved by members; or
(b) the audit shall be conducted by more than one auditor.
(4) The Central Government may, by rules, prescribe the manner in which the companies shall rotate their auditors in pursuance of sub-section (2).
Explanation.—For the purposes of this Chapter, the word “firm” shall include a limited liability partnership incorporated under the Limited Liability Partnership Act, 2008 (6 of 2009).
(5) Notwithstanding anything contained in sub-section (1), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments, the Comptroller and Auditor-General of India shall, in respect of a financial year, appoint an auditor duly qualified to be appointed as an auditor of companies under this Act, within a period of one hundred and eighty days from the commencement of the financial year, who shall hold office till the conclusion of the annual general meeting.
(6) Notwithstanding anything contained in sub-section (1), the first auditor of a company, other than a Government company, shall be appointed by the Board of Directors within thirty days from the date of registration of the company and in the case of failure of the Board to appoint such auditor, it shall inform the members of the company, who shall within ninety days at an extraordinary general meeting appoint such auditor and such auditor shall hold office till the conclusion of the first annual general meeting.
(7) Notwithstanding anything contained in sub-section (1) or sub-section (5), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government, or Governments, or partly by the Central Government and partly by one or more State Governments, the first auditor shall be appointed by the Comptroller and Auditor-General of India within sixty days from the date of registration of the company and in case the Comptroller and Auditor-General of India does not appoint such auditor within the said period, the Board of Directors of the company shall appoint such auditor within the next thirty days; and in the case of failure of the Board to appoint such auditor within the next thirty days, it shall inform the members of the company who shall appoint such auditor within the sixty days at an extraordinary general meeting, who shall hold office till the conclusion of the first annual general meeting.
(8) Any casual vacancy in the office of an auditor shall—
(i) in the case of a company other than a company whose accounts are subject to audit by an auditor appointed by the Comptroller and Auditor-General of India, be filled by the Board of Directors within thirty days, but if such casual vacancy is as a result of the resignation of an auditor, such appointment shall also be approved by the company at a general meeting convened within three months of the recommendation of the Board and he shall hold the office till the conclusion of the next annual general meeting;
(ii) in the case of a company whose accounts are subject to audit by an auditor appointed by the Comptroller and Auditor-General of India, be filled by the Comptroller and Auditor-General of India within thirty days:
Provided that in case the Comptroller and Auditor-General of India does not fill the vacancy within the said period, the Board of Directors shall fill the vacancy within next thirty days.
(9) Subject to the provisions of sub-section (1) and the rules made thereunder, are tiring auditor may be re-appointed at an annual general meeting, if—
(a) he is not disqualified for re-appointment;
(b) he has not given the company a notice in writing of his unwillingness to be re-appointed; and
(c) a special resolution has not been passed at that meeting appointing some other auditor or providing expressly that he shall not be re-appointed.
(10) Where at any annual general meeting, no auditor is appointed or re-appointed, the existing auditor shall continue to be the auditor of the company.
(11) Where a company is required to constitute an Audit Committee under section 177, all appointments, including the filling of a casual vacancy of an auditor under this section shall be made after taking into account the recommendations of such committee.