Composition of the NFRA
The Companies Act requires the NFRA to have a chairperson who will be appointed by the Central Government and a maximum of 15 members. The appointment of such chairperson and members are subject to the following qualifications:
- They should be having an expertise in accountancy, auditing, finance or law.
- They are required to make a declaration to the Central Government that there is no conflict of interest or lack of independence in their appointment.
- All the members including the chairperson who are in full-time employment should not be associated with any audit firm (including related consultancy firms) during their term of office and 2 years after their term.
The terms and conditions relating to the appointment of the chairperson and members have not yet been prescribed. However, the draft NFRA rules outline the following composition of the authority:
- Chairperson is a Chartered Accountant and a person of eminence having expertise in accountancy, auditing, finance or law;
- Member – Accounting;
- Member – Auditing;
- Member – Enforcement;
- One representative of the MCA not below the rank of Joint Secretary or equivalent (ex-officio)
- One representative of RBI, being a member of the RBI Board is to be nominated by the RBI;
- One representative of SEBI, being the Chairman of SEBI or whole-time member of SEBI is to be nominated by SEBI;
- A retired chief justice of high court or a person who has been the judge of a high court for more than 5 years is to be nominated by the Central Government,
- President of the Institute of Chartered Accountants of India (ex-officio)
The Chairman may also invite any other person to the meeting to give their expert opinion.
Role of the NFRA
The NFRA has the following responsibilities:
- Make recommendations on the foundation and laying down of accounting and auditing policies and standards;
- Monitor and enforce the compliance of the accounting standards and auditing standards:
- Oversee the quality of service of the professionals (such as auditors, CFOs, etc) and suggest measures required for improvement in the quality of service;
- Perform such other functions related to the above.
Prior to the constitution of this authority, the Central Government would prescribe accounting standards on the recommendation of ICAI. The ICAI would prescribe the same only after consulting with the National Advisory Committee on Accounting Standards who will provide their recommendations. The ICAI will now have to consult with the NFRA and examine its recommendations in this regard. Thus the National Advisory Committee on Accounting Standards is effectively replaced by the NFRA.
Powers of the NFRA
The NFRA shall have the following powers:
- To investigate the matters of professional or other misconduct committed by a prescribed class of CA firms or CAs. No other authority can initiate or continue proceedings where the NFRA has initiated an investigation. Such an investigation can be initiated either suo moto (by itself) or on a reference made by the Central Government.
- The same powers as a Civil Court under the Code of Criminal Procedure, 1908, in respect of a suit involving the following matters.
- Discovery and production of books of account and other documents, at such place and time as may be specified by the NFRA
- Summoning and enforcing the attendance of persons and examining them under oath
- Inspection of any books, registers, and other documents of any person at any place
- Issuing commissions for the examination of witnesses or documents
- Where professional or other misconduct is proved, it shall have the power to impose the following punishment:
- For individuals a fine between Rs. 1,00,000 to 5 times the fees received;
- For firms a fine Between Rs. 5,00,000 to 10 times the fees received;
- Debarring the member/firm from practice as a member of ICAI between 6 months to 10 years as may be decided
Any person who is not satisfied with the order of the NFRA can then make an appeal to the Appellate Authority.
Scope of the NFRA
As discussed earlier, the NFRA has the power to investigate and also conduct quality reviews for a certain prescribed class of companies. While the draft NFRA Rules have not been prescribed yet, they would include the following class of companies if implemented as it is:
- Companies listed in India
- Unlisted Companies whose:
- Net worth ≥ Rs. 500 crore; or
- Paid up Capital ≥ Rs. 500 crore; or
- Annual turnover ≥ Rs. 1000 crore (As on 31st March of the preceding financial year); OR
- Companies whose securities are listed outside India
The NFRA also holds the power of investigation of a certain class of bodies corporate or persons (auditors) in relation to matters of professional or other misconduct by a member or firm of Chartered Accountants or auditors. In this regard, as per the draft NFRA rules, the auditors or audit firms which conduct the audit of the following category of companies or their branches (including through the network/brand to which it belongs) whether directly or indirectly, are covered:
- Audit of ≥ 200 companies in a year;
- Audit of ≥ 20 listed companies;
- Company or companies (whether listed or not), having:
- Net Worth ≥ Rs. 500 crores; or
- Paid up Capital ≥ Rs. 500 crores; or
- Annual turnover ≥ Rs. 1000 crores;(As on 31st March of the immediately preceding financial year); OR
- Company or Companies listed outside India
Note: The above restriction of companies will not apply where :
- A reference is made by the Central Government or any regulator to the NFRA to conduct such an investigation; or
- The NFRA by itself decides to conduct an investigation in public interest.
Thus it can be concluded that the ICAI will continue to retain its regulatory powers in respect of private companies and unlisted public companies below the above-prescribed threshold.
The Quality Review Board will also continue conducting quality audits in respect of private limited companies, unlisted public companies and such other audit of companies that are delegated by the NFRA.
As per news reports, the president of the Institute of Chartered Accountants of India (ICAI), CA Naveen Gupta, in a statement to the media mentioned that the new regulatory for auditors, i.e, the National Financial Reporting Authority ( NFRA ) is not legally valid.