Author Name:   chitvanbakshi

All the aspects of Director’s Remuneration ranging from the meaning, limit determination etc. To understand the practical facets of director’s remuneration relevant provisions like section 198,309,310 and 311 read with schedule XIII of the Companies Act,1965 is analysed.It also talks about the guarantee commission paid to directors, remuneration of executive directors, fees for meetings of Board and committees, Perquisites and their valuation...

Director’s Remuneration

The provisions contained in the Companies Act, 1956 relating to the remuneration of managerial personnel are not applicable to an independent private company. However, an independent private company can appoint them in accordance with the provisions contained in the Articles of Association (AOA).Compensation paid to the director’ provided by for services provided by them to the company is called remuneration. It is defined in explanation appended to section 198 of company’s act 1956 (herein after referred to as the “Act”).

Compensation paid to directors for services provided by them to the company is called ‘remuneration’. It is inclusively defined in explanation appended section 198 of the Act.

It includes
(a) any expenditure incurred by the company in providing any rent-free accommodation, or any other benefit or amenity in respect of accommodation free of charge, to any of the persons specified in sub-section (1);
(b) any expenditure incurred by the company in providing any other benefit or amenity free of charge or at a concessional rate to any of the persons aforesaid;
(c) any expenditure incurred by the company in respect of any obligation or service which, but for such expenditure by the company, would have been incurred by any of the persons aforesaid;
(d) any expenditure incurred by the company to effect any insurance on the life of, or to provide any pension, annuity or gratuity for, any of the persons aforesaid or his spouse or child.]

Any payment made by a company to its directors by whatever name called and whether in cash kind or money’s worth, or by way of perquisite, amenity or benefit or by discharging an obligation, amounts to ‘remuneration under the act. The definition is inclusive one. Hence a receipt by a director of some benefit, facility amenity or fringe benefit from the company for his personal use or for use of his spouse or family can still be remuneration even it is not covered by the parameters laid down by this act.

In all the four clauses of the definition the word “expenditure incurred” is used. The emphasis of the definition is on expenditure incurred by the company in providing any benefit to the director.

The word expenditure is defined as the “act of expending something, especially funds; disbursement; something that is expended; expense’’

The word ‘incur’ means to become ‘liable or subject to’. If you incur costs you have to pay them. The expression ‘expenditure incurred’ contemplates the idea of spending money (either by paying out or becoming liable to pay).

In Indian Molasses Co ltd v. CIT, the Supreme Court held that Expenditure' is equal to expense' and 'expense' is money laid out by calculation and intention. The idea of spending' in the sense of paying out or away' money is the primary meaning and. Expenditure' is thus what is 'paid out or given away' and is some- thing which is gone irretrievably

In Madras Industrial Investment Corporation v.CIT, the Supreme Court held that ‘expenditure’ is not necessarily confined to money which has been actually paid out; it covers a liability which has accrued or which has been incurred although it may have to discharge at a future date. However, a contingent liability which needs to be performed in future cannot be considered as expenditure

Remuneration to be computed in reference to a financial year
Section 198 and 309 of the Act contain provisions about managerial services or remuneration and specify certain limits which are expressed in percentage terms .it is relatable to ‘financial year since the limits specified in section 198 or 309 are in relation to or for a financial year.

Maximum Remuneration to Directors
Total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company, to its directors and its manager in respect of any financial year shall not exceed eleven per cent of the net profits of that company for that financial year

Section 309(1) of the act provides that the remuneration payable to directors including any managing or whole time director shall be determined in accordance with and subject to the provisions of section 198 and this section i.e. section 309 either by Articles of company, or by resolution ,or if the articles so require by a special resolution passed by the company in the general meeting and the remuneration payable to such director as aforesaid shall be inclusive of the remuneration payable to such director for services rendered by him in any other capacity.

In 1965 to make the provisions clear sub section 309(1) was amended, the percentage limits stipulated in section 309(4),therefore apply to all remuneration payable to part time directors in any capacity except the remuneration of professional nature if the requirements of the proviso to section 309(1) are complied with .The limits, however, do not seem to exclude the fees paid to directors for attending for attending meetings of board as there is no provision in section unlike section 198(2) as mentioned in Canara workshops Ltd. v. Union of India

Commission paid to non executive Director
Section 309(4) and section 309(7) deal with remuneration payable non-executive directors that is to say the directors other a managing than and whole-time Director within the overall limit specified in section 198(1) and further limit specified in section 309(4) itself, which authorizes payment of remuneration to part-time directors in two optional ways:

· With the approval of central government by way of monthly annually or quarterly payment
· Without the approval of central government but with the approval of shareholders by special resolution

As per section 309(4) (b) a company may pay to its non executive directors or part-time directors, remuneration by way commission on net profits without the approval of central government, in case the company has authorized by special resolution payment of such remuneration or the amount of such remuneration does not exceed1% of net profit (if the company has one managing or whole time director) and 3% of net profits (if the company has two or more managing and /or whole time directors).

Any increase from the above mentioned limit attracts the provisions of section 310 of the Act. Under this section any increase in the remuneration of any director (including a whole time or managing Director) requires either compliance with schedule XIII or an approval of central Government.

As per the circular of Ministry of Corporate Affairs (herein after referred to as the MCA) “sitting fees are paid only for attending meetings of the board and committees and such fees ought to be treated as completely outside the scope of section 198(and consequently section 309 and 310), they need not to be considered ‘remuneration’, when commission is allowed to be paid only with the approval of the company by special resolution passed at general meeting.”

The Proviso to section 309(1) excludes any remuneration paid to directors for professional services rendered by them to the company, provided that central government has expressed an opinion that the director possesses requisite professional qualification. The benefit of this exception shall be available only in respect of that director who possesses requisite qualification for practicing the profession in respect of which they render special service.There is nothing in section 309 of the act which empowers the central government to restrict the remuneration payable to a director for services rendered by him in professional capacity. In the opinion of the honorable court in Sri Ganjana Motor Transport Co. Ltd. v. Union of India , Central government is not permitted to put any restriction on the remuneration payable to director by the company once it is satisfied that the director possessed requisite qualification to render professional services.

Fees for meetings of Board and committees
A director who is not a managing or whole time director may be paid fees for attending meetings of board or of committees .(popularly called sitting fees).These fees are outside the limit specified in 198(1) of the Act.

As per section 309(2) a director may receive remuneration by way of fees for each meeting of the board, or a committee, attended by him .This provision indicates that sitting fees is a species of species of a remuneration under this act, though it is not be considered for the purposes of overall limit of 11% mentioned under section 198(1) of the Act. Sitting fees is not kept out from concept of the remuneration, but it is excluded for the purpose of limit.

According to the proviso to section 310(1) of the Act no approval of the Central Government under that section will be necessary for an increase in amount of sitting fees so long as such increase is within the prescribed limit. The limit does not apply to a private company which is not a subsidiary of private company. In rule 10B of Companies (Central Government’s) General rules and Forms, 1956:

(a) Companies with a paid-up share capital and free reserve of Rs 10 crore and above or turnover of Rs 50 crore and above has a limit of sitting fees i.e. a sum of twenty thousand rupees.
(b) For other companies Sitting fee not to exceed the sum of ten thousand rupees.

If Articles of a company prescribes a lesser amount sitting fees can be paid at higher amount by amending the articles but not exceeding the above mentioned limits

Sitting Fees, etc., to Executive Director
A managing director or whole-time director may be paid sitting fees. If the remuneration is governed by section I of part I of schedule XIII (adequate profit situation), the sitting fees are to be excluded from the total managerial remuneration.

However if company pays minimum remuneration because of loss or inadequate profits ,the amount of sitting fees will have to be included in the total remuneration permitted under section II of part II. The MCA has clarified that payment of sitting fees will have to be included in total remuneration permitted under section II of part II .The MCA has clarified that payment of sitting fees to managing or whole-time directors is a part of managerial remuneration and in case of schedule XIII appointment, no such fees is payable in the absence of any provision therein.

Sitting Fees, etc., to non-resident Director
The Reserve Bank of India has permitted a company in or resident in India to make payment in rupees to its non whole-time directors who is resident outside India and is on visit to India for Company’s work and is entitled to payment of sitting fees or commission or remuneration or travelling expenses to and from and within India, in accordance with the provisions contained in company’s memorandum of association or articles of association or in any agreement entered into by it or in any resolution passed by the company in general meeting or by its board, provided the requirements of any law, rules, regulations, directions applicable for making such payment are duly complied with.

Director’s traveling Expenses
Where articles contain a provision identical with article 65 of Table A in schedule I to the act, the directors may be paid all travelling, hotel or other expenses properly incurred by then in attending and returning from meetings of the board or any committee thereof or general meetings of the company, or in connection with the business of the company. The quantum of expenses on travelling, etc. to be reimbursed is generally decided by the board .these expenses are not a managerial remuneration within the meaning of Explanation appended to section 198 and hence these expenses are outside the ambit of sections 198, 309,310 etc. Payment of expenses which are unreasonably excessive may make the directors liable for breach of fiduciary duty.

Sitting fees and expenses where no meeting is held
Section 309(2) Of the Act provides that a director may receive remuneration by way of fees for each meeting of the board or for a committee thereof attended by him. The usual accepted meaning of word ‘attend’ is ‘to be present at the meeting of the o board with a view to participate in its proceedings’. The emphasis is on ‘attending’ the meeting and not the ‘actual holding of the meeting’. In MCA’s view, if the meeting of the board could not be held for the want of quorum or for any other reason within the control of the director concerned that does not mean that director did not attend the meeting. In view of the above, sitting fees, traveling allowances etc., are payable to the director who was present at the meeting for participating in the meeting though no business could be transacted at that meeting for want of quorum.The limits laid down in rule 6D of Income Tax Rules should not be imposed for restricting the travelling and daily allowance which may be paid to the directors of the company or performing the journeys on the business of the company

Sitting Fees and expenses in connection with committee meetings
Section 309(2) provides that a director may receive remuneration by way of fee for each meeting of the board, or a committee thereof, attended by him. Therefore, a company may pay the directors who are members of any committee by the constituted by the board the fees for attending the committee meetings at the same rate as the fees paid for board meetings.

Determining the Remuneration
Section 309 contains provisions regarding “remuneration of Directors” including any managing or whole-time directors. Section 309(1) inter alia provides, that the remuneration payable to the directors of a company including any managing or whole –time director, shall be determined , in accordance with and subject to the provisions of section 198 of the Act and this section by-

(a) The articles of the company
(b) An ordinary resolution

If articles so require, by a special resolution
Where a case falls within the purview of schedule XIII , the appointment remuneration payable to the managing or whole time directors referred to in part I and part II respectively of the schedule shall be subject to approval by an ordinary resolution passed at a general meeting although the appointment and the remuneration is passed by board. It is subject to the articles if there are any, so far as remuneration is concerned, requiring a special resolution. In the cases falling under schedule XIII, an ordinary resolution required there under can be passed even after the expiry of 90 days from the date of Board’s resolution.

Remuneration of Executive director
Section 309(3) specifies the limit for the remuneration payable to the managing and whole-time director of a public company or a private company which is subsidiary of a public company. it provide that a director who is in whole time employment of a company or a managing director may be paid remuneration either by way of monthly payment or a specified percentage of net profits of the company or partly by one way and partly by other, provided that except with the approval of central government such remuneration shall not exceed five percent of net profits for one such director and if there is one more than one such director, ten percent for all of them together.

The limits of five percent and ten percent is subjected to the overall upper limit on managerial remuneration laid down in section198 i.e. 11%.Accordingly, the total remuneration paid to all directors (executive and non –executive) must not exceed the 11% limit.

Part II of schedule XIII deals with remuneration payable to managing and whole –time directors and managers. The amended schedule XIII now divides the part II in two parts. Section I deals with the remuneration payable by a company to its managerial personnel for the financial year in which company has adequate profits and section II thereof deals with remuneration payable by the company in the financial year in which it has no profits or inadequate profits.

Section I of part II of schedule XIII to the Act provides that subject to the provisions of section 198 and 309 a company having profits in a financial year may pay any remuneration by way of salary, dearness allowance, perquisites, commission and other allowances, which shall not exceed five %of its net profits for one such managerial person, and if there is more than one such managerial person, 10% for all of them put together.

Under schedule XIII of the Act, there are no monetary limits at all for the managerial remuneration if the company has adequate profits. ‘Profits’ means net profits as computed in the manner laid down in section 349 and 350 of the act.

Minimum Remuneration
A managing or whole –time director of a company is not entitled to the substantive remuneration as fixed by the board, in a financial year in which the company has either loss or inadequate profit. Inadequate profit means profit which is not adequate to pay the substantive remuneration of the managing or the whole-time director because if it is paid it would exceed the five percent or the ten percent limit

Section 198(4) of the Act deals with the ‘minimum remuneration’ payable to the managing or the whole time directors. According to it, in the financial year of loss or in adequate profit, a company cannot pay full remuneration as fixed by the board but which is in excess of net profits in any financial year. It can pay minimum remuneration and that to with the prior approval of the central government.

Section 198(4) provides that notwithstanding anything contained in section198 (1) to198 (3) subject to the provisions of section 269, read with Schedule XIII, if, in any financial year, a company has no profits or its profits are inadequate, the company shall not pay to its directors, including any managing or whole-time director or manager, by way of remuneration any sum exclusive of any fees payable to directors under sub-section (2) of section 309, except with the previous approval of the Central Government.

The requirement if government approval was dispensed with it in 1988 when schedule XIII came to be incorporated in the Act, on the condition that there would be10% cut in the salary. under schedule XIII as substituted on 14 July,1993 the condition as to 10% cut in the salary was done away with ,thereby giving companies freedom to pay the full salary in the event of loss or in adequate profits.

Section 198(4) is “subject to schedule XIII” .This means that no approval of the central government for payment of minimum remuneration is necessary if such remuneration is within the limit specified in section II of part II of the schedule XIII.

Such remuneration may be paid by way of salary, dearness allowance ,other allowances and perquisites but the total remuneration shall not exceed the monetary limits laid down and conditions stipulated in subparagraphs(A), (B) and (C) of the paragraph 1 of section II.

Applicability of limits
Section II of Part II has four Divisions
· Division (A) is applicable to companies having ceiling limit not exceeding Rs.2400000 per annum .or Rs.200000 per month
· Division (B) is applicable to companies having ceiling limit not exceeding Rs.4800000 per annum or Rs.400000 per month
· Division (C) is applicable to companies where the ceiling limit of Rs.4800000 or Rs.400000 exceeds and the company is a listed company or subsidiary of a listed company.
· Division (D) applies only to the companies situated in Special Economic Zones

The limits are calculated on the scale of Effective capital Of the Company. The table in each of the four divisions in section II of part II, followed by the conditions to be complied with by the company in respect of the remuneration payable to its managing/whole time Director.

The above ceilings shall apply for each managing Director and /or whole-time Director; therefore if a company, therefore, if company has more than one managing Director and /or whole-time director the company may pay each one of them minimum remuneration within the limit as applicable to it. No commission can be paid for the financial year in which minimum remuneration is payable due to loss or inadequacy of profits.

Exempted perquisites
The remuneration shown in division (A), (B), (C) and (D) will be an all-inclusive remuneration except the exempted prerequisites which will not be included in the minimum remuneration, in the case of every managing or whole-time director. In other words they will be entitled to these additional perquisites over and above the minimum remuneration stated above.

Contribution to provident fund, superannuation fund or annuity fund to the extent these either singly or put together are not taxable under the I.T. Act, 1961,
Gratuity payable at a rate not exceeding half month’s salary for each completed year of service, and
Encashment of leave at the end of the tenure.
An expatriate managerial person (including a non-resident Indian) shall be eligible to the certain perquisites which shall not be included in the computation of the ceiling on remuneration specified in Paragraph 1of this section of part II of schedule XIII to the Act Like Children’s education allowance, Holiday passage for children studying outside India / family staying abroad and Leave Travel Concession

Explanation I in Schedule XIII defines the expression ‘effective Capital’
For purposes of Section II of this Part, "effective capital" means aggregate of the paid-up share capital (excluding share application money or advances against shares); amount, if any, for the time being standing to the credit of share premium account; reserves and surplus (excluding revaluation reserve); long-term loans and deposits repayable after one year (excluding working capital loans, overdrafts, interest due on loans unless funded, bank guarantee, etc. and other short-term arrangements) as reduced by the aggregate of any investments (except in the case investment by an investment company whose principal business is acquisition of shares, stock debentures or other securities) accumulated losses and preliminary expenses not written off.’’

According to the newly added Explanation II, Where the appointment of the managerial person is made in the year in which the company has been incorporated, the effective capital shall be calculated as on the date of such appointment. In any other case, the effective capital shall be calculated as on the last date of the financial year preceding the financial year in which the appointment of the managerial person is made. The remuneration as per above slabs will be determined after the effective capital of the company is computed.

Perquisites
Perquisite is an incidental payment, benefit, privilege, or advantage over and above regular income, salary or wages. It is benefit given to an employee in addition to his normal pay.

Section 17(2) of income tax act 1961 gives an inclusive definition of term Perquisite and also excludes from the scope of that definition certain limits perquisites either in full or to specified limit.

Section I of part II of the new schedule XIII does not specify any perquisite, nor does it stipulate any limit for perquisites. It merely says that the managerial remuneration (inclusive of perquisites) shall not exceed the percentage limits laid down I section 198 and 309.As such , a company and a managerial person are free to negotiate any perquisites and limits on the monetary value of perquisites.

Hence none of the perquisite (including the three perquisites exempted under section II of part II) is to be excluded from the computation of total remuneration. That exemption is available only in case of payment of ‘minimum remuneration’ under section II of part II of the schedule XIII to the Act.

Reimbursement of medical expenses in excess of limit specified in schedule XIII
Reimbursement of Medical expenses is a species of remuneration as defined in explanation as appended to section 198, and any reimbursement of medical expenses in our outside India incurred in excess of limit laid down in schedule XIII will therefore require approval of central government under section 310 in as much as such reimbursement will have the effect of increasing the amount of remuneration. The approval of the central government may be applied post facto, but before making an application an ordinary resolution (or if articles so require, a special resolution) in which consent to such reimbursement will have to be passed

Reimbursement of expenses to managing director, etc. for defending criminal cases
Section 201 of the Act provides that Save as provided in this section, any provision, whether contained in the articles of a company or in an agreement with a company or in any other instrument, for exempting any officer of the company or any person employed by the company as auditor from, or indemnifying him against, any liability which, by virtue of any rule of law, would otherwise attach to him in respect of any negligence, default, misfeasance, breach of duty or breach of trust of which he may be guilty in relation to the company, shall be void, Provided that a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or discharged or in connection with any application under section 633 in which relief is granted to him by the Court.

Compensation for loss of office
Section 318 provides for compensation for loss of office of managing or whole time director or manager sub section (1) provides that payment may be made by a company, except in the cases specified in sub-section (3), and subject to the limit specified in sub-section (4), to a managing director, or a director holding the office of manager or in the whole-time employment of the company, by way of compensation for loss of office, or as consideration for retirement from office, or in Connection with such loss or retirement. No such payment shall be made by the company to any other director. Any payment made to a managing or other director in pursuance of section 318 (1) shall not exceed the remuneration which he would have earned if he had been in office for the unexpired residue of his term or for three years, whichever is shorter, calculated on the basis of the average remuneration actually earned by him during a period of three years immediately preceding the date on which he ceased to hold the office, or where he held that office for a lesser period than three years, during such period ,Provided that no such payment shall be made to the director in the event of the commencement of the winding up of the company, whether before, or at any time within twelve months after, the date on which he ceased to hold office, if the assets of the company on the winding up, after deducting the expenses thereof, are not sufficient to repay to the shareholders the share capital (including the premiums, if any,) contributed by them.

In section 318 (3) clause (a) to (e) certain cases are mentioned in which no compensation would be paid .Some of them are as follows:

(a)Where the director resigns his office in view of the reconstruction of the company, or of its amalgamation with any other body corporate or bodies corporate, and is appointed as the managing director, manager or other officer of the reconstructed company or of the body corporate resulting from the amalgamation.

(b) Where the director resigns his office otherwise than on the reconstruction of the company or its amalgamation as aforesaid;

Termination of Contract would not fall within the ambit of this clause and the company may pay compensation in accordance with the provisions of the section

Other cases are mentioned in clause (c) to (e) of subsection 3 of section 318 of the act.

Managerial remuneration in Government Companies
The provisions of section 269 and 198,309,310,311,387 and 388 of the act are not applicable in case of remuneration of managing/full time director or manager of Government Company within the meaning of section 619 of the act, by virtue of exemption granted by central government by a notification issued under section 620(1) (a) of the act.

Conclusion
It can be concluded that through various provisions legislative check is exercised on director’s remuneration. By setting the limits for maximum and minimum remuneration under various conditions, it is ensured that the remuneration should be in the interest of the public. The company amendment bill 2011 introduces certain amendments to regulate director’s remuneration. Under clause 92(1) the annual return prepared by the company in the prescribed form containing the particulars as they stood on the close of the financial year regarding certain aspects like its shares, debentures and other securities and shareholding pattern, its indebtedness should also include remuneration paid to the director and its managerial personnel. Clause 197(12) proposes to empower the Central Government to prescribe details in respect of remuneration of directors to be disclosed in the Board’s Report. Through these amendments it can be ascertained that the remuneration paid is not exceeding the prescribed limit and is in conformity with the act.
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# Webster; Random house unabridged dictionary
# Oxford Advance Learner’s Dictionary, 8th edition
# AIR 1959 SC 1049
# AIR 1997 SC 2063
# (1966)36 comp cases 63 (Mys)
#  File No.6(1)/CL-V/66
# 10th annual report of DCA 1966
# 4(1992) 73 Comp Cas 348(Kar)
# letter no.3/1/90/CL-V, dated 18th July 1990
# Notification NO. FEMA/16/RB-2000, as amended by Notification NO.FEMA/29/RB-2000,dated September 26, 2000 and Notification No. FEMA/39/2001-RB, dated 27 Feb, 2001(GSR 403(E) dated3-5-2000 issued in pursuance of provisions of Section 3 of the Foreign Exchange Management Act, 1999
# Circular No.1of 1972 dated 1 February,1972
# Circular No.5 of 1975, dated1 February 1975
# Circular No.3/89/3/19/88-CL-V,dated 13 April,1989
# DCA’s Circular No.14/2/88-CL-V,dated 15 september,1989
# Companies Act,1956;Schedule XIII
# Companies Act,1956
# GSR 235 dated 31st January,1978
# Company Amendment Bill,2011
# Supra

The  author can be reached at: chitvanbakshi@legalserviceindia.com

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