Form ADT-1: When to file and why?
Form ADT-1
Section 139(1) of the Companies Act 2013 specifies that every company has to appoint a statutory auditor at its Annual General Meeting. The auditor so appointed holds office till the next 5 years subject to his fulfillment of eligibility criteria. After the said period, the company may either appoint a fresh auditor who again holds office for another 5 years or may also re-appoint the existing one. Hence, every 5 years, a company either appoints a new auditor or re-appoints the existing auditor at its AGM.
But once an auditor is appointed by a company, it is duty-bound to inform the concerned auditor of such appointment. In addition to this, the company is also mandatorily required to intimate the Registrar of Companies of such an appointment. This is to be done by filing Form ADT-1 with ROC within 15 days from the date of the meeting in which the appointment is made.
What is this form for?
Form ADT-1 is an intimation given by a company to the Registrar about the appointment of an auditor. Pursuant to Section 139(1) and Rule 4 of Companies (Audit and Auditors) Rules, 2014, whenever a company appoints an auditor, it has to duly inform the Registrar within 15 days. For instance, if the company’s AGM is held on 30th Sept 2022, then Form ADT-1 should be filed latest by 15th Oct 2022. Remember, the responsibility to file the form rests with the company and not the auditor.
Note: Filing of this form is mandatory for all companies be it listed, unlisted, private, or public.
Is the form needed in case of re-appointment?
An explanation to Section 139(1) clarifies that appointment includes re-appointment. Therefore, all the provisions concerning documentation and form filing that are applicable in case of appointment also apply to the re-appointment of auditors. As a result, Form ADT-1 must be filed in case of re-appointment too.
However, one thing that must be taken care of while re-appointment is Section 139(2) which lays down the restrictions on the rotation of auditors. Certain companies prescribed under Rule 5 of Companies (Audit and Auditors) Rules, 2014 are prohibited from appointing an auditor for more than a consecutive term of 5 years.
Is Form ADT-1 needed in the case of first auditors?
As we know, the first auditor in a company is appointed by the company’s BOD within 30 days from the date of its registration. And in the event where the Board fails to make such an appointment, it has to inform the members of the company of such failure. Thereafter, the members appoint the first auditor at an EGM (extraordinary general meeting) within 90 days of receipt of information from the Board.
Although the law has not specifically mentioned the requirement to file Form ADT-1 in the case of first auditors under Section 139(6), the literal meaning of Proviso to Section 139(1) stipulates that Form ADT-1 has to be filed within 15 days from the date of the meeting in which auditor’s appointment is made. It is often argued that had the intention of the legislature been to restrict the scope of this proviso to appointments made in AGM only, it could have used the words “15 days of AGM” instead of “15 days of meeting”. Further, in the absence of any special indication as to the applicability of this proviso, Proviso to Section 139(1) can be purported to govern the entire section rather than Sub-section (1) only. Hence, the requirement to file Form ADT-1 should be applied in case of all appointments rather than just appointments referred to in Section 139(1).
As a result, to maintain good practice, the form should be filed irrespective of whether the auditor is appointed in a general meeting or a board meeting as in the case of the first auditors.
Moreover, Section 139(6) starts with the phrase “[notwithstanding anything contained in sub-section (1)]” and it is sub-section (1) that requires the filing of Form ADT-1. But it must be understood that interpretation of this phrase has to be construed with reference to any contradictory provisions. This means that if there is a contraction between the two, Section 139(6) will prevail. However, since Section 139(6) does not speak of anything contrary to Section 139(1) as far as filing of form is concerned, thus, it will mean that this form should be filed for first auditors too.
Are government companies required to file Form ADT-1?
Many people are not sure whether Form ADT-1 is needed to be filed by a government company or not. Even though the statutory auditors in case of government companies are appointed by the C & AG within 180 days from the start of a financial year and not necessarily at the AGM, such companies are required to file Form ADT-1 too. The form must be filed within 15 days of all appointments made by the C & AG.
Is the form to be filed in case of casual vacancy?
Under Section 139(8), if there is a casual vacancy in the office of an auditor on account of his death, disqualification, etc., the same has to be filled by the Board within 30 days. On reading Section 139(8) prima facie, it seems that Form ADT-1 is not required, but since an auditor is appointed by the BOD in place of the existing auditor, the regulator (i.e., ROC) should be intimated of the same. Therefore, this form should be filed for better practice.
Contents of Form ADT-1
Some of the important information that needs to be provided in this form includes the following:
- Corporate Identification Number (CIN) of the company
- Name, address, and e-mail id of the company
- Whether the company falls under the category of provisions laid down under Section 139(2) for rotation of auditors?
- Nature of appointment of the auditor, i.e., first auditor/subsequent auditor/re-appointment/casual vacancy, etc.
- Details of joint auditors, if any
- Category of auditor (whether individual or audit firm)
- Name, address, e-mail id, and PAN of the auditor/audit firm
- Membership number of the auditor or audit firm’s registration number
- Period of appointment
- Date of the AGM in which appointment is made
- Date and reasons of a casual vacancy, if any, and membership number of vacated auditor
Attachments to the form
Form ADT-1 has to be accompanied by a few attachments. These are:
- Copy of intimation sent to the auditor by the company
- Copy of written consent given by the auditor
- Copy of resolution passed by the BOD/members for appointment
- Copy of the letter of appointment from C & AG in case of a government company
Authorization
The form has to be digitally signed and authorized by a designated director, manager, CEO/CFO, or company secretary of the company. Director identification number of the director; or DIN or PAN of the Manager/CEO/CFO; or Membership number of the Company Secretary need to be furnished alongside.
Fee for Form ADT-1
The filing fee of the form is as given below:
| Nominal Share Capital of the company | Applicable fee |
| Less than 1,00,000 | Rs. 200 per document |
| From 1,00,000 to 4,99,999 | Rs. 300 per document |
| From 5,00,000 to 24,99,999 | Rs. 400 per document |
| From 25,00,000 to 99,99,999 | Rs. 500 per document |
| From 1,00,00,000 or more | Rs. 600 per document |
| Not having a share capital | Rs. 200 per document |
Additional fee
In case of late filing of the form, an additional fee or penalty becomes applicable which is as follows:
| Period of delay in filing | Penalty |
| Up to 30 days | 2 times of Normal Fees |
| More than 30 days and up to 60 days | 4 times of Normal Fees |
| More than 60 days and up to 90 days | 6 times of Normal Fees |
| More than 90 days and up to 180 days | 10 times of Normal Fees |
| More than 180 days | 12 times of Normal Fees |
Conclusion
The above-mentioned form is required every time an auditor is appointed/re-appointed and it can easily be filed electronically on the MCA’s website. To download the form from MCA’s website, please follow this link.
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