As per the October 2011 circular, upon amendment to Clause 41(d) of LA, companies were supposed to file only their audited accounts within 60 days. The April 2012 circular says companies could submit their unaudited results within 45 days and there was no specified period to submit audited results. How do the companies ensure compliance of these circulars?

The Securities and Exchange Board of India (SEBI) had vide its circular on 11 April 2012 http://www.bseindia.com/downloads/whtsnew/file/Clause%2041%20Circular.pdf) over-ridden the effect of the circular dated October 05, 2011¹ (October 2011 Circular) on Clause 41 of the Listing Agreement (LA). Listed companies now have to submit their last quarter un-audited results within 45 days from the end of the quarter and thereafter the audited accounts as soon as they are approved by the board of directors (BoD).

This amendment was made after receiving numerous representations from the companies as well as auditors, to reduce the burden on the companies due to the Revised Schedule VI requirements. But there is a confusion on the applicability of both the October 2011 and April 2012 circulars.

As per the October 2011 circular, upon amendment to Clause 41(d) of LA, companies were supposed to file only their audited accounts within period of 60 days and there was no scope for filing of unaudited results. The figures of the last quarter in this case were supposed to be the balancing amount of the three quarter deducted from the annual figure.

Whilst the Clause 41(d) amended by the October 2011 Circular still exists, a new Clause 41 (eaa) was inserted by the April 2012 Circular that read as follows:

“Submit limited reviewed Q4 results within 45 days from end of the quarter and thereafter submit annual audited results as soon as they are approved by the Board.

(or)

Submit annual audited results within 60 days from the end of fourth quarter along with Q4 results which would be a balancing figure.”

The April 2012 Circular clearly stated that such provision inserted as Clause 41(eaa) was only a one-time measure and that the position will be reviewed at a later stage. The amendment was brought in concurrence with the provisions appearing even before the October 2011 Circular where the companies had the option to submit their unaudited accounts within 45 days or audited accounts within 60 days of the end of the quarter.

However, with the amendment brought vide April 2012 Circular, companies could submit their unaudited results within 45 days and thereafter there was no specified period to submit their audited results as the same was subject to time when the board approves the same. Hence, the companies were relaxed to the extent of first time hassle being caused due to implementation of Revised Schedule VI. Therefore, it appears that the aforesaid Clause 41 (eaa) was inserted as an alternative to Clause 41 (d) for FY 2-11-12.

The moot question is whether the April 2012 Circular still holds relevance? If the answer is yes, then how do companies ensure compliance of the same? In the absence of any review that was to happen at a ‘later stage’, this becomes a critical question as the companies may default in compliance with the requirement to submit accounts in due time i.e. submit audited accounts within 60 days at the end of the quarter.

Clearly, the review of the April 2012 Circular missed the attention of the regulator, as there was no sunset clause in the LA. The present LA still refers to the April 2012 Circular, which may be argued to not be in effect due to its intent of limited introduction as a “one-time measure”. In essence therefore, the April 2012 Circular is no more relevant and effective and hence there is no question of submission on un-audited accounts for the FY 2013 onwards unless the regulator brings in any further amendments to the same.

Why then is it at all important to discuss the issue? Assuming a case where a company opts to change its accounting year, say for a period of nine months ending on 31st March after elapse of such date i.e. 31^st March. In such a case assuming the April 2012 Circular was still effective, one would have submitted un-audited accounts for the quarter ended 31^st March within 45 days i.e. by 15^th May and thereafter post deciding such change in the accounting year would have published its audited results as soon as approved by the board. But, due to the inadvertence of the regulator, companies may fail to analyse that the April 2012 Circular is no more applicable and hence, in this situation what the company could possibly do is to change its accounting year and thereafter it may possibly file the audited accounts itself for the period ending 31^st March.

Interestingly, the regulator has sought to send reminders to companies for compliance of the Clause 41 (d) pursuant to October 2011 Circular but, on the other hand, has completely missed on the review of the amendment brought in vide April 2012 Circular. Well at least with this reminder mail either one can be sure of the legal position that the audited accounts have to be submitted within 60 days only. This is now a buzzing issue for several corporates but hopefully this phase of confusion will fade soon, irrespective of regulator’s correction of the slip.