Sunday 21 December 2014

Investigation of frauds by using unconventional techniques

Use of techniques which would not ordinarily in an audit 
Each investigation is unique. Techniques fit the circumstances. The investigator may have to employ techniques which he would not ordinarily use in an audit situation. 

  • “Investigator’s Bluff”-For example, decoy customers may be used. Audit personnel of CA firm posing as customers purchase from the shop of the client and observe whether receipt/cash memo is issued etc.
  • Dimensional Analysis-When investigating  for an insurance company a claim for loss of stocks, it may be useful to ask a question like “How many TV sets can be stored in this godown even if all TV sets stored are of the smallest model?”

Case study illustrating the use of Investigator’s bluff

Facts of the case-A trading concern, dealing in chocolates and sweets and having a chain of retail outlets in all the metro cities announced an incentive scheme to induce shoppers to visit its shops again. The scheme provided that if a shopper made a purchase of more than Rs. 1,000, he would be  entitled to  a 10% discount coupon for his next visit. The guidelines framed by management required the  prominent display of  a placard at each of the shops to advertise the discount scheme. Appropriate internal controls in the form of pre-numbered receipt books and discount coupons were also introduced. As a result of  the scheme, sales of all the metros increased  as expected, except in one city. In that city,  even after the introduction of the discount scheme, the sales had not increased, though large values of discounts had been availed of. The management was intrigued by this and appointed an investigator to look into the matter.

Investigator’s routine examination-use of audit procedures-The investigator’s routine examination of Sales, purchases, cash and bank transactions, salaries, journal entries, other  books of account did not reveal anything untoward. The serial numbers controls, cash totals and cash registers appeared to be satisfactory. So, the investigator decided to personally visit the shop.

Investigator’s personal visit to the shop-On  personal visit, the first thing he noticed was that the placard regarding the scheme was not displayed. Therefore, shoppers would not  know that the discount  scheme was in force unless the cashier was, as a matter of routine, informed shoppers purchasing chocolates worth Rs. 1,000 or more, of the discount entitlement and furnishing discount coupons. He went through all the past discount coupons encashed by customers. The investigator observed the unusual trend that  a lot of shoppers had visited the shop again on the same or the very next day to purchase chocolates. This led the investigator to believe that the discounts claimed were not genuine. However, since the names and addresses of the shoppers were not available, it was not possible to confirm directly with the shoppers and  proving any foul play was difficult.

Use of Investigator’s bluff-The investigator adopted the  “Investigator’s bluff’ technique. He  sent  a decoy customer who purchased chocolates worth Rs. 2,500. As expected, the customer did not get the discount coupon. He was given a receipt of Rs. 2,500, numbered 20026. The spaces relating to information of discount coupon as well as the net payment amount were left blank in the receipt. At the end of the day, the cashier reported his total cash sales for the day and a statement of account coupons issued, which showed that discount coupon number 2113 had been issued against the receipt 20026. The investigator confronted the cashier about the discount coupon, who confessed that he had fraudulently retained the discount coupon himself.

Investigator’s findings-The cashier explained how he went about encashing such discount coupons, as follows:

Step 1: Receipt say 2XX1 was issued to ABC for Rs. 2,000/-
Step 2: Daily Cash Receipt and Discount Coupons Statement would disclose: A discount coupon say 2XX1 issued to the shopper ABC against Receipt 2XX1, though the discount coupon 2XX1 was actually in possession of the cashier himself.
Step 3: When another customer making a purchase of Rs. 1,200/- did not ask for a cash receipt, the cashier would make out a receipt for Rs. 1,200/ with Rs. 120/- entered in the discount column, and attach coupon 2XX1 to that receipt as if that customer was ABC who had returned to purchase chocolates again with the discount receipt 2XX1.
Step 4: The cashier would pocket Rs. 120/- and put Rs. 1,080/- In the cash box.
In this manner, he had siphoned off an average of almost Rs. 20,000 per week. Thus, the discount scheme, in fact, had never been in operation at all. This explained why the sales at the concerned metro had not increased even after the introduction of the scheme.

Lessons to be learnt-Very often the conventional procedures(routine audit tests)  do disclose weaknesses in controls and anomalies in findings. However, these procedures may, at times, fail to discover or bring to light the actual damage done and the nature of deceit or trickery. It is, therefore, essential for an investigator to adopt effective fact-finding techniques to determine whether all policies and control procedures are being implemented or not. That is also why personal inspection, visits and ‘walk-through tests’ are very meaningful, and where situation so demands, an “investigator’s bluff”, as shown above, can be used.

Investigation on behalf of an incoming partner

Nature of investigation
An incoming partner of a firm/ Limited Liability Partnership (LLP) may approach a CA to investigate the books of the firm/LLP.

Purpose of investigation
The purpose of such investigation is that the  incoming partner would be interested to know:
  • whether the terms offered to him are reasonable having regard to 
    • the nature of the business, 
    • profit records, 
    • capital distribution, 
    • personal capability of the existing partners, 
    • socio-economic setting, etc., and
  • whether he would be capable of deriving continuing benefit in the shape of return on capital to be contributed and remuneration for services to be rendered .
  • whether the capital to be contributed by him would be safe and applied usefully. 
Understanding between incoming partner and firm/LLP 
In this investigation, the problem is that the CA would investigate the books and records of a firm/LLP. However, he is appointed not by the firm/LLP but by a third party(a person who has been offered partnership by the firm/LLP). Therefore, it would be very useful if the firm/LLP and the incoming partner have a clear understanding that the CA appointed by the latter would be extended full co-operation and assistance by the firm/LLP in terms of access to records, personnel etc.

Steps involved in the investigation
Broadly, the steps involved in the investigation are:
(a)Ascertain the history of the inception and growth of the firm/LLP
(b)Study the provisions of the deed of partnership/LLP agreement , particularly for composition of partners, their capital contribution, drawing rights, retirement benefits, job allocation, financial management, goodwill, etc
(c)Scrutinise the record of profitability of the firm’s business over a suitable number of years, with usual adjustments that are necessary in ascertaining the true record of business profits. 
Pay particular attention to the nature of partners’ remuneration, which may be excessive or inadequate in relation to the nature and profitability of the business, qualification and expertise of the partners and such other factors as may be relevant.
(d)Examine  the asset and liability position to determine the tangible asset backing for the partner’s investment, appraisal of the value of intangibles like goodwill, know how, patents, etc. impending liabilities including contingent liabilities and those for pending tax assessment. In case of firms rendering services, the question of tangible asset backing usually is not important, provided the firm’s profit record, business coverage and standing of the partners are of the acceptable order.
(e)Examine position of orders at hand and the range and quality of clientele which the firm is presently operating.
(f)Carefully scrutinise position and terms of loan finance to assess its usefulness and implication for the overall financial position; reason for its absence should be studied.
(g)Study the composition and quality of key personnel employed by the firm/LLP and any likelihood of their leaving the organisation in the near future by retirement etc.
(h)Ascertain various important contractual and legal obligations and study their nature.It may be the case that the firm/LLP has standing agreement with the employees as regards salary and wages, bonus, gratuity and other incidental benefits. Full import of such standing agreements would be gauged before a final decision is reached.
(i)Ascertain Reasons for the offer of admission to a new partner.Determine whether the same synchronises with the retirement of any senior partner whose association may have had considerable bearing on the firm’s/LLP’s success.
(j)Appraisal of the record of capital employed and the rate of return. It is necessary to have a comparison with alternative business avenues for investments and evaluation of possible results on a changed capital and organisation structure, if any, envisaged along with the admission of the partner.
(k)Manner of computation of goodwill on admission as also on retirement, if any, should be ascertained
(l)Whether any special clause exists in the deed of partnership/LLP agreement to allow admission in future of a new partner, who may be specified, on concessional terms
(m)Whether the incomplete contracts which will be transferred to the reconstituted firm will be a liability or a loss.



Can bonus shares be issued by capitalising revaluation reserves?

Position under the Companies Act,1956-Unlisted company could issue bonus shares by capitalising revaluation reserve in view of SC's ruling in Bhagwati Developers case
The proviso to sub-section (3) of section 205 of the 1956 Act permitted capitalization of profits or reserve of a company for the purpose of issuing fully paid up bonus shares or paying up any amount for the time being unpaid on any shares held by the members of the company. Thus, the 1956 Act specifically permitted utilization of reserve arising from revaluation of assets for purpose of issuing fully paid up bonus shares. In view of the aforesaid proviso, a company can issue bonus shares by capitalization of revaluation reserve if the Articles of Association of the company so permits.-Bhagwati Developers v. Peerless General Finance & Investment Co. [2005] 62 SCL 574 (SC). In the above case, Supreme Court was concerned with an
unlisted company. In case of listed companies, the SEBI (ICDR) Regulations, 2009 prohibits issue of bonus shares by capitalization of revaluation reserves. The SEBI (ICDR) Regulations is not applicable
to unlisted companies. Thus, under the 1956 Act, an unlisted company could use revaluation reserve for issuing bonus shares.

Section 63 of the Companies Act,2013 bars all companies from capitalising revaluation reserve to issue bonus shares
In order to overcome Supreme Court’s decision in Bhagwati Developers (supra), proviso to section 63(1) of the Companies Act,2013 provides that no issue of bonus shares shall be made by capitalizing reserves created by the revaluation of assets. This bar on issuing bonus shares out of revaluation reserves applies to all companies whether listed or unlisted.

The provisions of section 63 have been enforced with effect from 01-04-2014. Therefore, with effect from 01-04-2014, no company whether listed or unlisted can issue bonus shares by capitalising revaluation reserves

Duty of auditor where bonus shares issued by capitalising revaluation reserve
Apart from proviso to section 63(1) of the 2013 Act forbidding issue of bonus shares by capitalising revaluation reserves, ICAI's Guidance Note on Availability of Revaluation  Reserve for Issue of Bonus Shares also recommends against the same. According to the Guidance Note, revaluation reserve does not represent a realized gain. It is created as a result of a book adjustment only. It does not result from an arm’s length transaction. Since revaluation reserve does not represent a realized gain, it cannot be used for issue of bonus shares/to increase amount paid-up on equity shares. If company uses revaluation reserve for issue of bonus shares/to increase amount paid-up on equity shares , auditor will have to qualify its report. 

The statutory auditor should qualify his audit report if company issues bonus shares on or after 01-04-2014 capitalising its revaluation reserves in contravention of section 63 of the 2013 Act. An illustrative qualification is as under:
Basis for qualified opinionThe company has issued bonus shares for Rs…………(……equity shares of Rs……….each)by capitalizing its revaluation reserve. Accordingly, the Paid-Up Equity Share Capital of the company stands increased by Rs…….. and the revaluation reserve stands reduced by that amount. The issue of bonus shares as aforesaid is contrary to provisions of section 63 of the Companies Act,2013 and the recommendations of the Institute of Chartered Accountants of India. Had the company not issued bonus shares by capitalising its revaluation reserves, its paid-up equity share capital would have been lower by Rs...... and its revaluation reserves would have been higher by Rs......OpinionIn our opinion and to the best of our information and according to the explanations given to us, except for the effects of the matter described in the Basis for Qualified Opinion paragraph, the financial statements give the information required by the Act in the manner so required and give a true and fair view in conformity with the accounting principles generally accepted in India:
(a)in the case of the Balance Sheet, of the state of affairs of the Company as at March 31, 20XX;
(b)in the case of the Profit and Loss Account, of the profit/ loss for the year ended on that date;  and
(c)in the case of the Cash Flow Statement, of the cash flows for the year ended on that date.
The above is in accordance with Standard of Auditing SA 705 Modifications to the Opinion in the Independent Auditor’s Report and ICAI's Guidance Note on Availability of Revaluation  Reserve for Issue of Bonus Shares
 

Tuesday 9 December 2014

Interim Dividend

'Dividend' includes interim dividend
According to section 2(35)of the Companies Act,2013 ('the 2013 Act'), “dividend” includes any interim dividend. This means that whatever provisions apply to declaration of final dividend shall also apply to interim dividend subject, of course, to the provisions of section 123(3) and the proviso to section 123(3).

Sources from which interim dividend can be declared and paid
Section 123(3) of the Companies Act,2013  provides that the Board of Directors of a company may declare interim dividend during any financial year out of:

  • the surplus in the Profit and Loss account as well as
  • the profits for the financial year in which the interim dividend is sought to be declared. 

Contrast section 123(3) with section 205(1A) of the Companies Act,1956 which provided that
"The Board of Directors may declare interim dividend and the amount of dividend including interim dividend shall be deposited in a separate bank account  within five days from the date of declaration of such dividend"

It can be seen that section 205(1A) of the 1956 Act did not specify the sources from which interim dividend can be declared. Section 123(3) specifies sources from which interim dividend can be declared. It appears that, under the 2013 Act, interim dividend can be paid only from 'surplus in the Profit and Loss Account' and profits of the current financial year. It seems that past profits lying in Reserves cant be used for Interim Dividend. MCA or ICAI needs to clarify this.

Article II(81) of Table F of Schedule I to the 2013 Act provides that subject to the provisions of section 123, the Board may from time to time pay to the members such interim dividends as appear to it to be
justified by the profits of the company.

Maximum rate of interim dividend that can be declared if company has incurred loss during the current financial year up to the end of the immediately preceding quarter
In case the company has incurred loss during the current financial year up to the end of the quarter immediately preceding the date of declaration of interim dividend, such interim dividend shall not be declared at a rate higher than the average dividends declared by the company during the immediately preceding three financial years. [ Proviso Section 123(3)]




Declaration and Payment of Dividend-II

Sources out of which dividend may be declared
No dividend shall be declared or paid by a company for any financial year except out of—
  • profits of the company for that year arrived at after providing for depreciation (current profits),or
  • profits of the company for any previous financial year or years arrived at after providing for depreciation and remaining undistributed (past profits remaining undistributed), or 
  • both (current profits and past profits remaining undistributed), or 
  • money provided by the Central Government or a State Government for the payment of dividend in pursuance of a guarantee given by that Government.
Depreciation has to be provided in accordance with Schedule-II to the Companies Act,2013
Entire past unabsorbed losses need to be set off before dividend is declared
The Companies Act,1956 Act  required that the company shall not declare dividend unless it has provided, in respect of each previous financial year, the loss for that year (after providing for depreciation) or the amount of depreciation provided, whichever is lower.
Example
Year
Profit/(loss) before depreciation
(Rs)
Depreciation
(Rs)
Profit/(loss) after depreciation
(Rs)
2011-12
(100)
25
(125)
2012-13
5
25
(20)
2013-14
28
30
(2)
2014-15
200
30
170
In terms of the provisions of the 1956 Act, the company can declare dividend for 2014-15 only after setting off for each past year amount of loss or depreciation whichever is less. Thus, the following amounts are to be set-off.

Year
Amount to be set-off before declaring dividends(Rs)
Remarks
2011-12
25
Depreciation is lower than the amount of loss.
2012-13
20
Loss is lower than depreciation
2013-14
2
Loss is lower than depreciation
Total
47


Thus, under the 1956 Act, the company needed to set off only Rs 47 out of the Rs147 unabsorbed losses and depreciation from its profit of 2014-15( Rs170) before declaring dividend and company’s divisible profits would be Rs 23. This is against the concept of prudence which demands that the entire unabsorbed loss and depreciation of past years of  Rs 147 be set off against profits of 2014-15 before a dividend is declared and accordingly divisible profits should be only Rs.23. There is no reason why the unabsorbed losses should be set off only to the extent of the unabsorbed depreciation and rest of the unabsorbed losses should not be set off.

The 2013 Act is silent on this issue. Section 123 of the 2013 Act does not contain provisions along the lines of clause (b) of the first proviso to section 205(1) of the 1956 Act. However, Rule 3(5) of the Companies (Declaration and Payment of Dividend) Rules, 2014 notified under the 2013 Act seeks to remedy the situation. Accordingly Rule 3(5) provides that no company shall declare dividend unless carried over previous losses and depreciation not provided in previous year or years are set off against the profit of the company for the current year. In the above example, under the 2013 Act, entire Rs 147(unabsorbed losses) will have to be set off and divisible profits will be only Rs.23.  The 2013 Act is stricter in this regard. It requires setting off of the entire amount of arrears of unabsorbed depreciation and losses (and rightly so) and not merely the lower of the loss after depreciation and depreciation


Only free reserves to be used for declaring dividends
No dividend shall be declared or paid by company from its reserves other than free reserves [Third proviso to section 123(1)].

Definition of free reserves
Section 2(43) of the 2013 Act defines ‘free reserves’ to mean such reserves which, as per the latest audited balance sheet of a company, are available for distribution as dividend.

The following shall not be regarded as free reserves and shall not be available for distribution as dividend :

  • unrealized gains, whether shown as reserve or otherwise 
  • notional gains, whether shown as a reserve or otherwise 
  • amount representing revaluation of assets, whether shown as reserve or otherwise.
  • any change in carrying amount of an asset or liability recognized in equity, including surplus in P&L account on measurement of assets or liability at fair value.

Transfer of amounts to reserves is optional [First Proviso to section 123(1)]
The first proviso to section 123(1) provides that a company may, before the declaration of any dividend in any financial year, transfer such percentage of its profits for that financial year as it may consider appropriate to the reserves of the company. There is no requirement along the lines of the 1956 Act to transfer specified percentage of profits before declaring dividend if dividend rate exceeds a specified percentage. The 956 Act which provided for compulsory transfer of prescribed percentage of profits to reserves before declaring dividends at a rate exceeding 10% of paid-up capital.

Declaration of dividends out of accumulated past profits transferred to reserves [Second proviso to section 123(1)].
Where, owing to inadequacy or absence of profits in any financial year, any company proposes to declare dividend out of the accumulated profits earned by it in previous years and transferred by the company to the
reserves, such declaration of dividend shall not be made except in accordance with such rules as may be prescribed in this behalf. [Second proviso to section 123(1)].
Rule 3 of the Companies (Declaration and Payment of Dividend) Rules, 2014 titled ‘Declaration of dividend out of reserves’ provides that in the event of inadequacy or absence of profits in any year, a company may
declare dividend out of free reserves subject to the fulfillment of the following conditions, namely:—
  • The rate of dividend declared shall not exceed the average of the rates at which dividend was declared by it in the three years immediately preceding that year. (The above limit on rate of dividend shall not apply to a company, which has not declared any dividend in each of the three preceding financial years).
  • The total amount to be drawn from such accumulated profits shall not exceed one-tenth of the sum of its paid-up share capital and free reserves as appearing in the latest audited financial statement.
  • The amount so drawn shall first be utilised to set off the losses incurred in the financial year in which dividend is declared before any dividend in respect of equity shares is declared. 
  • The balance of reserves after such withdrawal shall not fall below fifteen per cent of its paid up share capital as appearing in the latest audited financial statement. 
  • No company shall declare dividend unless carried over previous losses and depreciation not provided in previous year or years are set off against profit of the company of the current year.

Declaration and Payment of Dividend-I

Chapter VIII of the Companies Act,2013 titled 'Declaration and Payment of Dividend' comprises sections 123 to 127(both inclusive)as under :

  • Section 123 : Declaration of dividend
  • Section 124 : Unpaid dividend account(not yet made applicable)
  • Section 125 : Investor Education and Protection Fund(not yet made applicable)
  • Section 126 : Right to dividend, rights shares and bonus shares to be held in abeyance pending registration of transfer of shares 
  • Section 127 : Punishment for failure to distribute dividends

Comparison of the Companies Act,2013 vis a vis the Companies Act,1956
Various changes made by section 123 of the 2013 Act as regards declaration and payment of dividend are as under:

  • Transfer of profits to reserves made optional. Unlike the 1956 Act, it is not necessary to transfer specified percentage of profits to reserves where company intends to declare dividend above a specified percentage.  
  • Company will have to provide entire unabsorbed losses and depreciation of earlier years before declaring dividend. Unlike the 1956 Act, it is not sufficient to provide merely lower of loss after depreciation and depreciation.
  • Section 123 clearly provides that dividends shall not be declared out of reserves other than free reserves. Since revaluation reserves are excluded from definition of free reserves by section 2(43), declaration of dividends out of revaluation reserves is barred. There was no such express bar in the 1956 Act.
  • If company has incurred loss during the current financial year up to the end of the quarter immediately preceding the date of declaration of interim dividend, such interim dividend shall not be declared at a rate higher than the average dividends declared by the company during the immediately preceding three financial years. Such restriction was not there in the 1956 Act.
  • Sub-section (6) of section 123 provides that a company which fails to comply with sections 73 and 74 of the 2013 Act (relating to acceptance of deposits from public/members/repayment of deposits accepted before commencement of the Act) shall not, so long as such failure continues, declare any dividend on its equity shares. There was no such express bar in the 1956 Act

Thursday 4 December 2014

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