TCF Monthly Newsletter - April 2022
Tokyo Consulting Firm Bangladesh
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Perquisite (Accounts & Taxation)
What is Perquisite?
“Perquisite” may be defined as any casual emolument or benefit attached to an office or position in addition to salary or wages. This Account head is very important to effect on the Tax Assessment Return of Individual and Company both. As per ITO-1984 Perquisite means
I. Any payment made to an employee by an employer in the form of cash or in any other form excluding:
But noted that, though Incentive Bonus is part of the salary it has Tax limit. Incentive Bonus 10% on Company’s Net profit will be allowable expenditure for the company. So, Company should concern about their salary structure which they decided for their employees so that they can enjoy maximum tax benefits.
II. Any benefit, whether convertible into money or not, provided to an employee by an employer, called by whatever name, other than;
Heads of Perquisites
Following are the heads of perquisites:
Tax implications on Perquisites
For the company- if any employee’s annual perquisites exceed taka five lakh and fifty thousand and to any employee who is a person with a disability, as exceeds taka twenty-five lakh will be disallowed expenditure.
Provided that the provision of this clause shall not be applicable to an employer where perquisites were paid to an employee in pursuance of any Government decision published in the official Gazette to implement the recommendation of a Wage Board constituted by the Government.And the company will pay tax on applicable rate related to company on full amount over exceed perquisites.
Reference: U/S: 2(45), 30(e) of ITO-1984
Settlement Procedure of Industrial Dispute (Human Resources)
Industrial Dispute means any dispute or difference of opinion between employers and employers, between employers and workers or between workers and workers in respect of appointment or conditions of service or conditions of work or environment of work of any person.
Procedure of Settlement of Industrial Dispute
In any establishment or organization, the interatrial dispute may arise and, in this regard, there are some procedure to be resolved it out as:
1. If at any time an employer or a collective bargaining agent finds that an industrial dispute is likely to arise between the employer and the workers, the employer or the collective bargaining agent shall communicate his or its views in writing to the other party.
2. Within 15 (fifteen) days of the receipt of a communication under sub-section (1), the party in consultation with the other party, arrange a meeting with it for collective bargaining through discussion a view to reaching an agreement, and such meeting may be held between the representatives of the parties authorized in this behalf.
3. If the parties, after holding discussion, reach a settlement on the issues discussed, a memorandum of settlement shall be recorded in writing and signed by both the parties, and a copy thereof shall be forwarded by the employer to the Government, the Director of Labor and the Conciliator.
In case of failure of holding the Meeting for Settlement Between Parties
If the responsible party fails to arrange a meeting with the other party within the time specified or no settlement is reached through dialogue within a period of 1 (one) month from the date of the first meeting for negotiation, or, such further period as may be agreed upon in writing by the parties, any of the parties, may, within 15 (fifteen) days from the expiry of the period mentioned in sub-section (2) or, clause (b) of this sub-section, as the case may be, report the matter to a competent Conciliator mentioned may request him in writing to settle the dispute through conciliation.
1. The Conciliator shall, within 10 (ten) days of receipt of the request as aforesaid, start conciliation, and shall call a meeting between both the parties to bring about a settlement.
2. The parties to the dispute shall appear before the Conciliator in person or through the representatives nominated and authorized by them to enter into an agreement binding on both the parties on such date and at such time as the Conciliator may specify.
3. And if the settlement of the dispute is arrived through conciliation, the Conciliator shall submit a report thereon to the Government together with a memorandum of settlement signed by both the parties.
In case of failure of Settlement Between the Parties by Conciliator
Sometime the conciliator become failure to settle the issue between the parties, then the they may go ahead with the following procedure:
1. If no settlement is arrived at within 30 (thirty) days of receipt of any request for settlement of any dispute by the Conciliator, the conciliation shall fail, or the conciliation may be continued for further period agreed upon in writing by both the parties.
2. If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an Arbitrator.
(2-a) If the parties do not agree to refer the dispute to an Arbitrator, the Conciliator shall, within 3 (three) days of failure of the conciliation issue a certificate to the parties to the dispute to the effect that it has failed.
(2-b) If the parties agree to refer the dispute to an Arbitrator, they shall make a joint request in writing for settlement of the dispute to an Arbitrator agreed upon by them.
3. An Arbitrator referred in sub-section (2-b) may be a person from the panel of Arbitrators prepared by the Government in this behalf, or any other person agreed upon by the parties.
4. The Arbitrator shall give his award within 30 (thirty) days from the date of receipt of the request for arbitration or within such further period as may be agreed upon in writing by the parties.
5. When an award is given by the Arbitrator, he shall forward one copy thereof to the parties and another copy to the Government.
6. The award of the Arbitrator shall be final and no appeal shall lie against it.
7. An award shall be valid for such period not exceeding 2 (Two) years as may be fixed by the Arbitrator.
8. The Director of Labour may, if he deems fit in the interest of settlement of a dispute, at any time, take over any conciliation proceedings from any Conciliator and proceed to conciliate the dispute himself, or transfer such proceedings to any other Conciliator, and in such a case the other provisions of this section shall apply.
Reference: 1. Bangladesh Labor Act,2006. Section-210, Sub -1-8
Appointment and Removal of Private Limited Company Directors (Legal & Secretarial)
A company is a separate legal entity but it (artificial legal person) cannot manage or direct its own affairs to run its functions. Section 2(1) (F) of the Companies Act, 1994 defines the term ‘director’. It depends on the directors who hold the most important position relating to the administration and management of the company. Ultimately, it is the directors who determine how the company will operate on a day-to-day basis, for the benefit of the shareholders. Hence, the provisions relating to the appointment and removal of directors become a common part of company law.
The Basic Procedure of Appointment and Removal
The appointment and removal of the directors are governed generally by the provisions of sections 90-115 of the Companies Act of 1994.
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Appointment of Director
The appointment of a director is not only a crucial administrative requirement but is also a procedural requirement that has to be fulfilled by every company. Company directors are appointed by the shareholders of a limited company and must be registered and listed as a company director at Companies House. It is common for shareholders and directors to be the same people in smaller companies.
Section 91 provides that the subscribers to the memorandum of association shall be deemed to be the directors of the company until the first directors are appointed. Other directors are to be elected by the members in general meetings or in the case of a casual vacancy to be appointed by the board.
In respect of re-appointment and replacement of directors, Section 91 does not make it clear whether the appointment of directors in a general meeting can be done by an ordinary resolution.
A vote of at least 51% of those members entitled to vote is required to appoint a director by an ordinary resolution.
Generally, a corporate body, firms or associates cannot alone become a director. Only an individual can be a director of a company. The Articles of the company can also contain the policy and procedure of appointment or removal of a director.
To be appointed as a director of a company, a person must satisfy the following conditions contained in the Companies Act 1994. the person must:
It appears that all kinds of people cannot be appointed as a director of a company. Persons who are insolvent or bankrupt, fraudulent persons, persons under the age of 18 years old, persons of unsound mind, Directors that have been absent from Board of Directors meetings for a consecutive period of six months, and persons of like these characteristics, cannot be appointed as a director of a company.
As per section 110, no company should appoint or employ any individual as its managing director for a term exceeding five years at a time.
Removal of Director
Under the Companies Act 1994 of Bangladesh, a director of a company can be removed- (i) by passing a resolution, and (ii) by the order of the court.Section 106 of the Companies Act 1994 empowers the company to remove a director by extraordinary resolution before the expiry of his period of office. Where a company decides to remove one or some of its directors, whether or not they are employees of the company, the company must serve a special notice of the removal on all the Directors of the company including the Director that is proposed to be removed. “Special notice” must be given of the resolution to remove a director.
The most common method of removing a director of a company is either through voluntary resignation or by rotation.
Section 106 provides that the company may appoint a director in place of another by ordinary resolution, although the removal of his predecessor must be done by an extra-ordinary resolution.
A vote of at least three-fourths (75%) of those members entitled to vote is required to remove a director by an extraordinary resolution.
Disqualification is dealt with in more detail in Section 94. In summary, the main grounds of disqualifications are:
Vacation of The Post of Director
When a director becomes disqualified by law or by the articles from continuing to be a director, he automatically vacates under Section 108. It states that the post of a director shall become vacant if:
? He fails to obtain within the time specified in section 97 (1) or at any time thereafter ceases to hold, the qualification shares, if necessary for his appointment; or
? He is found to be of unsound mind by a competent court; or
? He is adjudged an insolvent; or
? He fails to pay calls made on him in respect of shares held by him within six months from the date of such calls being made; or
? He or any firm of which he is a partner or any private company of which he is a director, without the sanction of the company in general meeting accepts or holds any office of profit under the company other than that of a managing director or manager or a legal or technical adviser or a banker; or
? He absents himself from three consecutive meetings of the directors or from all meetings of the directors for a continuous period of three months, whichever is the longer, without leave of absence from the Board of Directors; or
? He or any firm of which he is a partner or any private company of which he is a director accepts a loan or guarantee from the company in contravention of section 103; or
? He is removed by extraordinary resolution
?makes a contract with the company without disclosing his interest in the contract.
? He is punishable with imprisonment for a term exceeding six months.
Register Book of Directors
Under the Companies Act of 1994. the companies are required to keep a register in which particulars of all such contracts or arrangements shall be entered and which shall be open to inspection by any member of the company at the registered office of the company during business hours.
Please note that this is only applicable to private limited companies. For one-person companies (OPC) and public limited companies, there are additional regulations to follow.
Reference: 1. The Companies act 1994 (Section 90 to 115)