Companies 251 or administrator of that estate and shall, in respect of that share be subject to the same liabilities and no more as he would have been subject to if the share had remained registered in the name of the deceased person. (2) Any trustee, executor or administrator of the estate of any deceased person who was beneficially entitled to a share in any corporation, being a share registered in a register or branch register kept in Malaysia may, with the consent of the corporation and of the registered holder of that share, become registered as the holder of that share as trustee, executor or administrator of that estate and shall, in respect of the share, be subject to the same liabilities and no more as he would have been subject to if the share had been registered in the name of the deceased person. (3) Shares in a corporation registered in a register or branch register kept in Malaysia and held by a trustee in respect of a particular trust may with the consent of the corporation, be marked in the register or branch register in such a way as to identify them as being held in respect of the trust. (4) Except as provided in this section no notice of any trust expressed, implied or constructive shall be entered on a register or branch register or be receivable by the Registrar and no liabilities shall be affected by anything done in pursuance of subsection (1), (2) or (3) or pursuant to the law of any other place which corresponds to this section and the corporation concerned shall not be affected with notice of any trust by anything so done. Branch registers 164. (1) A company having a share capital may cause to be kept in any place outside Malaysia a branch register of members which shall be deemed to be part of the company's register of members. (2) The company shall lodge with the Registrar notice of the situation of the office where any branch register is kept and of any change in its situation, and if it is discontinued of its discontinuance, and any such notice shall be lodged within one month after the opening of the office or of the change or discontinuance, as the case may be. Laws of Malaysia 252 ACT 125 (3) A branch register shall be kept in the same manner in which the principal register is by this Act required to be kept. (4) The company shall transmit to the office at which its principal register is kept a copy of every entry in its branch register as soon as may be after the entry is made, and shall cause to be kept at that office duly entered up from time to time a copy of its branch register, which shall for all purposes of this Act be deemed to be part of the principal register. (5) Subject to the provisions of this section with respect to the copy register the shares registered in a branch register shall be distinguished from the shares registered in the principal register, and no transaction with respect to any shares registered in a branch register shall during the continuance of that registration be registered in any other register. (6) A company may discontinue a branch register and thereupon all entries in that register shall be transferred to some other branch register kept by the company in the same place or to the principal register. (7) This section shall apply to all companies incorporated within Malaysia by or under any Federal or State law. (8) If by virtue of the law in force in any other country any corporation incorporated under that law keeps in Malaysia a branch register of its members, the Minister may by order declare that the provisions of this Act relating to inspection, place of keeping and r e c t i f i c a t i o n of registers of members shall, subject to any modifications specified in the order, apply to and in relation to any such branch register kept in Malaysia as they apply to and in relation to the registers of companies under this Act and thereupon those provisions shall apply accordingly. (9) If default is made in complying with this section the company and every officer of the company who is in default and every person who, pursuant to section 159 has arranged to make up the principal register, and who is in default shall be guilty of an offence against this Act. Penalty: *One thousand ringgit. Default penalty. *NOTE--Previously "two hundred and fifty ringgit"­see Companies (Amendment) Act 1986 [Act A657]. Companies 253 DIVISION 5 ANNUAL RETURN Annual return by company having a share capital 165. (1) Every company having a share capital shall make a return containing the particulars referred to in Part l of the Eighth Schedule and accompanied by such copies of documents as are required to be included in the return in accordance with Part ll of that Schedule and such of the certificates and other particulars prescribed in that Part as are applicable to the company. (2) The return shall be in accordance with the form set out i n Part II of the Eighth Schedule or as near thereto as circumstances admit and shall be made up to the date of the annual general meeting of the company in the year or a date not later than the fourteenth day after the date of the annual general meeting. (3) In the case of a company keeping a branch register the particulars of the entries in that register shall, so far as they relate to matters which are required to be stated in the return, be included in the return made next after copies of those entries are received at the registered office of the company. (4) The annual return signed by a director or by the manager or secretary of the company shall be lodged with the Registrar within one month or in the case of a company keeping pursuant to its articles a branch register in any place outside Malaysia within two months after the annual general meeting. Annual return by company not having a share capital (5) A company not having a share capital shall, within one month after each annual general meeting of the company, lodge with the Registrar a return in the prescribed form containing the particulars referred to in subsection (6) and made up to the date of the annual general meeting or a date not later than the fourteenth day after the date of the annual general meeting. Laws of Malaysia 254 ACT 125 (6) The return of a company not having a share capital shall contain--- (a) the address of the registered office of the company; (b) in a case in which the register of members is, under this Act, kept elsewhere than at that office, the address of the place where it is kept; (c) particulars of the total amount of the indebtedness of the company in respect of all charges, whether required to be registered with the Registrar or not; (d) all such particulars with respect to the persons who, on the day to which the return is made up, are the directors, managers or secretaries of the company as are required to be contained in the register of directors, managers and secretaries; (e) the name and address of the auditor of the company; and (f) such other matters relating to the accounts of the company and to the unclaimed moneys held by the company as are prescribed. (7) If a company fails to comply with this section, the company and every officer of the company who is in default shall be guilty of an offence against this Act. Penalty: *Two thousand ringgit. Default penalty. Auditor's statements 165A. (1) A company that is not required by this Act to lodge accounts with the Registrar shall include in or attach to its annual return under section 165 a statement relating to the accounts of the company required to be laid before the company at its annual general meeting held on the date to which the return is made up or if an annual general meeting is not held on that date, the annual general meeting last preceding that date, signed by the auditor of the company-- (a) stating whether the company has in his opinion kept proper accounting records and other books during the period covered by those accounts; *NOTE--Previously "five hundred ringgit"­see Companies (Amendment) Act 1986 [Act A657]. Companies 255 (b) stating whether the accounts have been audited in accordance with this Act; (c) stating whether the auditor's report on the accounts was made subject to any qualification, or included any comment made under subsection 174(3), and, if so, particulars of the qualification or comment; and (d) stating whether as at the date to which the profit and loss account has been made up, the company appeared to have been able to meet its liabilities as and when they fall due. (2) If a company fails to comply with this section, the company and every officer of the company who is in default shall be guilty of an offence against this Act. Exemption from filing list of members with annual return for certain public companies 166. (1) A public company which-- (a) has more than five hundred members; and (b) provides reasonable accommodation and facilities for persons to inspect and take copies of its list of members and its particulars of shares transferred, need not comply with such of the provisions of this Division and the Eighth Schedule as relate to the inclusion in the annual return of a list of members if there is included in the annual return-- (A) a certificate by the secretary that the company is of a kind to which this subsection applies; and (B) a list showing the prescribed particulars of the twenty largest holders of each class of equity shares. (2) The Minister may, by notice published in the Gazette require any company to which subsection (1) applies to comply with all or any of the provisions of this Division or of the Eighth Schedule referred to in subsection (1). (3) If default is made in complying with the notice given under subsection (2), the company and every officer of the company who is in default shall be guilty of an offence against this Act. Penalty: *Two thousand ringgit. Default penalty. *NOTE--Previously "five hundred ringgit"­see Companies (Amendment) Act 1986 [Act A657]. Laws of Malaysia 256 ACT 125 PART VI ACCOUNTS AND AUDIT DIVISION 1 ACCOUNTS Compliance with approved accounting standards 166A. (1) In this Part unless the contrary intention appears, "approved accounting standards" shall have the meaning assigned thereto in section 2 of the Financial Reporting Act 1997 [Act 558]. (2) The approved accounting standards shall apply to the accounts of a company or the consolidated accounts of a holding company if, at the time when the accounts or consolidated accounts are made out, the approved accounting standards-- (a) apply in relation to the financial year of the company or the holding company to which the accounts or consolidated accounts relate; and (b) are relevant to those accounts or consolidated accounts. (3) Without prejudice to the generality of the provisions of this Division, the directors of a company shall ensure that the accounts of the company and, if the company is a holding company for which consolidated accounts are required, the consolidated accounts of the company, laid before the company at its annual general meeting are made out in accordance with the applicable approved accounting standards. (4) Notwithstanding subsection (3), the directors of a company or holding company shall not be required to ensure that the accounts or consolidated accounts, as the case may be, are made out in accordance with a particular approved accounting standard if they are of the opinion that making out the accounts or consolidated accounts in accordance with the approved accounting standard would not give a true and fair view of the matters required by section 169 to be dealt with in the accounts or consolidated accounts or a true and fair view of the results of the business and the state of affairs of the company and, if applicable, of all the companies the affairs of which are dealt with in the consolidated accounts. Companies 257 (5) Where the accounts or consolidated accounts of a company are not made out in accordance with a particular approved accounting standard under subsection (4), the directors of the company shall-- (a) disclose by way of a note on the accounts their reason for not making out the accounts or consolidated accounts in accordance with the approved accounting standard; and (b) give particulars in the note of the quantified financial effect on the accounts or consolidated accounts if the relevant approved accounting standard was complied with. (6) Notwithstanding subsection 169(14), where any conflict or inconsistency arises between the provisions of an applicable approved accounting standard and a provision in the Ninth Schedule in their respective applications to the accounts or consolidated accounts of a company, the provisions of the applicable approved accounting standard shall prevail. Accounts to be kept 167. (1) Every company and the directors and managers thereof shall cause to be kept such accounting and other records as will sufficiently explain the transactions and financial position of the company and enable true and fair profit and loss accounts and balance sheets and any documents required to be attached thereto to be prepared from time to time, and shall cause those records to be kept in such manner as to enable them to be conveniently and properly audited. (1A) Every company and the directors and managers thereof shall cause appropriate entries to be made in the accounting and other records within sixty days of the completion of the transactions to which they relate. (2) The company shall retain the records referred to in subsection (1) for seven years after the completion of the transactions or operations to which they respectively relate. (3) The records referred to in subsection (1) shall be kept at the registered office of the company or at such other place in Malaysia as the directors think fit and shall at all times be open to inspection by the directors. Laws of Malaysia 258 ACT 125 (4) N o t w i t h s t a n d i n g the provisions in subsection (3), the accounting and other records of operations outside Malaysia may be kept by the company at a place outside Malaysia and there shall be sent to and kept at a place in Malaysia and be at all times open to inspection by the directors, such statements and returns with respect to the business dealt with in the records so kept as will enable to be prepared true and fair profit and loss accounts and balance sheets and any documents required to be attached thereto. (5) If any accounting and other records are kept at a place outside Malaysia pursuant to subsection (4), the company shall, if required by the Registrar to produce those records at a place in Malaysia, comply with the requirements. (6) The Court may in any particular case order that the accounting and other records of a company be open to inspection by an approved company auditor acting for a director, but only upon an undertaking in writing given to the Court that information acquired by the auditor during his inspection shall not be disclosed by him except to that director. (7) If default is made in complying with this section the company and every officer of the company who is in default shall be guilty of an offence against this Act. Penalty: Imprisonment of *six months or five thousand ringgit or both. As to accounting periods of companies within the same group 168. (1) Subject to subsections (11) and (12) the directors of every holding company that is not a foreign company shall take such steps as are necessary to ensure that-- (a) within two years after the commencement of this Act, the financial years of each of its subsidiaries coincide with the financial year of the holding company; and (b) within two years after any corporation becomes a subsidiary o f the holding company, the financial year of that corporation coincides with the financial year of the holding company. *NOTE--Previously "three months or five hundred ringgit"­see Companies (Amendment) Act 1985 [Act A616]. Companies 259 (2) Where the financial year of a holding company that is not a foreign company and that of each of its subsidiaries coincide, the directors of the holding company shall at all times take such steps as are necessary to ensure that without the consent of the Registrar the financial year of the holding company or any of its subsidiaries is not altered so that all such financial years do not coincide. (3) Where the directors of the holding company are of the opinion that there is good reason why the financial year of any of its subsidiaries should not coincide with the financial year of the holding company, the directors may apply in writing to the Registrar for an order authorizing any subsidiary to continue to have or to adopt (as the case requires) a financial year which does not coincide with that of the holding company. (4) The application shall be supported by a statement by the directors of the holding company of their reasons for seeking the order. (5) The Registrar may require the directors who make an application under this section to supply such information relating to the operation of the holding company and of any corporation that is deemed by virtue of section 6 to be related to the holding company as he thinks necessary for the purpose of determining the application. (6) The Registrar may at the expense of the holding company of which the applicants are directors request any approved company auditor to investigate and report on the application. (7) The Registrar may rely upon any report obtained pursuant to subsection (6) from the approved company auditor. (8) The Registrar may make on order granting or refusing the application or granting the application subject to such limitations, terms or conditions as he thinks fit and shall serve the order on the holding company. (9) Where the applicants are aggrieved by any order made by the Registrar, the applicants may, within two months after the service of the order upon the holding company, appeal against the order to the Minister. Laws of Malaysia 260 ACT 125 (10) The Minister shall determine the appeal and in determining the appeal may make any order that the Registrar had power to make on the original application and may exercise any of the powers that the Registrar might have exercised in relation to the original application. (11) Where the directors of a holding company have applied to the Registrar for an order authorizing any subsidiary to continue to have a financial year which does not coincide with that of the holding company, the operation of subsection (1) shall be suspended in relation to that subsidiary until the determination of the application and of any appeal arising out of the application. (12) Where an order is made authorizing any subsidiary to have a financial year which does not coincide with that of the holding company, compliance with the terms of the order of the Registrar or where there has been an appeal, compliance with the terms of any order made on the determination of the appeal shall be deemed to be a compliance with subsection (1) in relation to that subsidiary, but where an application for such an order and the appeal, if any, arising out of that application are refused the time within which the directors of the holding company are required to comply with subsection (1) in relation to that subsidiary shall be deemed to be the period of twelwe months after the date upon which the order of the Registrar is served on the holding company or the period of twelwe months after the determination of the appeal, as the case may be. (13) Where the directors of a holding company have applied to the Registrar for an order authorizing any of its subsidiaries to continue to have or to adopt a financial year which does not coincide with that of the holding company and the application and the appeal, if any, arising out of that application, have been refused, the directors of the holding company shall not make a similar application with respect to that subsidiary within three years after the refusal of the application or where there is an a p p e a l , after the determination of that appeal unless the Registrar is satisfied that there has been a substantial change in the relevant facts or circumstances since the refusal of the former application or the determination of the appeal, as the case may be. Companies 261 Profit and loss account, balance sheet and directors' report 169. (1) The directors of every company shall, at some date not later than eighteen months after the incorporation of the company and subsequently once at least in every calender year at intervals of not more than fifteen months, lay before the company at its annual general meeting a profit and loss account for the period since the preceding account (or in the case of the first account, since the incorporation of the company) made up to a date not more than six months before the date of the meeting. (2) Notwithstanding subsection (1) the Registrar on application by the company, if for any special reason he thinks fit so to do, may extend the periods of eighteen months and fifteen months referred to in that subsection and with respect to any year extend the period of six months referred to in that subsection, notwithstanding that period is so extended beyond the calender year. (3) The directors of every company shall cause to be made out, and to be laid before the company at its annual general meeting with the profit and loss account required by subsection (1) a balance sheet as at the date to which the profit and loss account is made up. (4) The profit and loss account and the balance sheet of a company shall be duly audited before they are laid before the company at its annual general meeting as required by this section. (5) The directors of a company shall cause to be attached to every balance sheet made out under subsection (3) a report made in accordance with a resolution of the directors and signed by not less than two of the directors with respect to the profit or loss of the company for the financial year and the state of the company's affairs as at the end of the financial year and if the company is a holding company also a report with respect to the state of affairs of the holding company and all its subsidiaries. (6) Each report to which subsection (5) relates shall state with appropriate details-- (a) the names of the directors in office since the date of the last report; Laws of Malaysia 262 ACT 125 (b) the principal activities of the company in the course of the financial year and any significant change in the nature of those activities during the period; (c) the net amount of the profit or loss of the company for the financial year after provision for income tax; (d) the amounts and particulars of any material transfer to or from reserves or provisions; (e) where, during the financial year, the company has issued and shares or debetures--the purposes of the issue, the classes of shares or debentures issued, the number of shares of each class and the amount of debentures of each class, and the terms of issue of the shares and debentures of each class; (f) whether at the end of that financial year-- (i) there subsist arrangements to which the company is a party, being arrangements with the object of enabling directors of the company to acquire benefits b y means of the acquisition of shares in, or debentures of, the company or any other body corporate; or (ii) there have, at any time in that year, subsisted such arrangements as aforesaid to which the company was a party, and if so the report shall contain a statement explaining the effect of the arrangements and giving the names of the persons who at any time in that year were directors of the company and held, or whose nominees held, shares or d e b e n t u r e s acquired in pursuance of the arrangements; (g) in respect of each person who, at the end of the financial year, was a director of the company-- (i) whether or not (according to the register kept by the company for the purposes of section 134 relating to the obligation of a director of a company to nofity such company of his interests in shares in, or debentures of, the company and of every other body corporate, being the company's subsidiary or holding company or a subsidiary of the company's Companies 263 holding company) he was at the end of that year, interested in shares in, or debentures of the company or any other such body corporate and , if he was so interested, the number and amount of shares in, and debentures of, each body (specifying it) in which, according to that register, he was then interested; (ii) whether or not, according to that register, he was, at the beginning of that year (or, if he was not then a director), when he became a director, interested in shares in, or debentures of, the company or any other such body corporate and, if he was so interested, the number and amount of shares in, and debentures of, each body (specifying it) in which according to that register, he was interested at the beginning of that year or, as the case may be, when he became a director; and (iii) the total number of shares in or debentures of the company or any other such corporate bought and sold by him during that financial year; (h) the amount, if any, which the directors recommended should be paid by way of dividend, and any amounts which have been paid or declared by way of dividend since the end of the previous financial year, indicating which of those amounts, if any, have been shown in a p r e v i o u s report under this subsection or under a corresponding repealed provision of this Act; (i) whether the directors (before the profit and loss account and balance sheet were made out) took reasonable steps to ascertain what action had been taken in relation to the writing off of bad debts and the making of provision for doubtful debts, and satisfied themselves that all known bad debts had been written off and that adequate provision had been made for doubtful debts; (j) whether at the date of the report the directors are aware of any circumstances which would render the amount written off for bad debts or the amount of the provision for doubtful debts inadequate to any substantial extent and, if so, giving particulars of the circumstances; Laws of Malaysia 264 ACT 125 (k) whether the directors (before the profit and loss account and balance sheet were made out) have taken reasonable steps to ensure that any current assets which were unlikely to be realized in the ordinary course of business including their value as shown in the accounting records of the company have been written down to an amount which they might be expected so to realize; (l) whether at the date of the report the directors are aware of any circumstances-- (i) which would render the values attributed to current assets in the accounts misleading; and (ii) which have arisen which render adherence to the existing method of valuation of assets or liabilities of the company misleading or inappropriate; and, if so, giving particulars of the circumstances; (m) whether there exists at the date of the report-- (i) any charge on the assets of the company which has arisen since the end of the financial year which secures the liabilities of any other person and, if so, giving particulars of any such charge and, so far as practicable, of the amount secured; and (ii) any contingent liability which has arisen since the end of the financial year and, if so, stating the general nature thereof and, so far as practicable, t h e maximum amount, or an estimate of the maximum amount, for which the company could become liable in respect thereof; (n) whether any contingent or other liability has become enforceable, or likely to become enforceable, within the period of twelwe months after the end of the financial year which, in the opinion of the directors, will or may affect the liability of the company to meet its obligations when they fall due and, if so, giving particulars of any such liability; (o) whether at the date of the report the directors are aware of any circumstances not otherwise dealt with in the report or accounts which would render any amount stated in the accounts misleading and, if so, giving particulars of the circumstances; Companies 265 (p) whether the results of the company's operations during the financial year were, in the opinion of the directors, s u b s t a n t i a l l y affected by any item, transaction or event of a material and unusual nature and, if so, giving particulars of that item, transaction or event and the amount or the effect thereof, if known or reasonably ascertainable; and (q) whether there has arisen in the interval between the end of the financial year and the date report any item, transaction or event of a material and unusual nature likely, in the opinion of the directors, to affect substantially the results of the company's operations for the financial year in which the report is made and, if so, giving particulars of the item, transaction or event. (7) In subsection (6) of this section, the expression "any item, transaction or event of a material and unusual nature" includes but is not limited to-- (a) any change in accounting policies adopted since the last report; (b) any material change in the method of valuation of the whole or any part of the trading stock; (c) any material item appearing in the accounts or consolidated accounts for the first time or not usually included in the accounts or consolidated accounts; and (d) any absence from the accounts or consolidated accounts of any material item usually included in the accounts or consolidated accounts. (8) The directors of a company shall state in the report whether a director of the company has since the end of the previous financial year received or become entitled to receive a benefit (other than a benefit included in the aggregate amount of emoluments received or due and receivable by the directors shown in the accounts or the fixed salary of a full-time employee of the company) by reason of a contract made by the company or a related corporation with the director or with a firm of which he is a member, or with a company in which he has a substantial financial interest, and, if so, the general nature of the benefit. Laws of Malaysia 266 ACT 125 (9) Every statements, report or other document relating to the affairs of a company or any of its subsidiaries attached to, or included with, a report of the directors laid before the company at its general meeting or sent to the members under section 170 (not being a statements, report or document required by this Act to be laid before the company in general meeting) shall, for the purposes of section 364 be deemed to be part of that last-mentioned report. (10) Where at the end of a financial year a company is the subsidiary of another corporation, the directors of the company shall state in, or in a note as a statement annexed to, the company's accounts laid before the company at its annual general meeting the name of the corporation regarded by the directors as being the company's ultimate holding company and if known to them the country in which it is incorporated. (11) Where any option has been granted during the period covered by the profit and loss account to take up unissued shares of a company the report required by subsection (5) shall state-- (a) the name of the person to whom the option has been granted; (b) the number and class of shares in respect of which the option has been granted; (c) the date of expiration of the option; (d) the basis upon which the option may be exercised; and (e) whether the person to whom the option has been granted has any right to participate by virtue of the option in any share of any other company. (12) Each report required by subsection (5) shall specify-- (a) particulars of shares issued during the period to which the report relates by virtue of the exercise of options to take up unissued shares of the company, whether granted before or during that period; and (b) the number and class of unissued shares of the company under option as at the end of that period, the price, or method of fixing the price, of issue of those shares, the Companies 267 date of expiration of the option and the rights, if any, of the persons to whom the options have been granted to participate by virtue of the options in any share issue of any other company; (c) (Deleted by Act A616). (13) Paragraph (11)(a) shall not apply in any case where the option to take up shares of the company has been conferred generally on all the holders of a class of shares or debentures of the company. (14) Every balance sheet referred to in subsection (3) shall give a true and fair view of the state of affairs of the company as at the end of the period to which it relates and every profit and loss account referred to in subsection (1) shall give a true and fair view of the profit or loss of the company for the period of accounting as shown in the accounting and other records of the company, and without affecting the generality of the foregoing, every such balance sheet and profit and loss account shall comply with the requirements of the Ninth Schedule so far as applicable thereto. (15) The directors of a company shall cause to be attached to every balance sheet and profit and loss account laid before the company in general meeting (including any consolidated balance sheet and consolidated profit and loss account of a holding company) a statement made in accordance with a resolution of the directors and signed by at least two directors stating whether, in the opinion of the directors-- (a) the profit and loss account and, where applicable, the consolidated profit and loss account, is or are drawn up so as to give a true and fair view of the results of the business of the company and, if applicable, of all the companies the accounts of which are dealt with in the consolidated profit and loss account for the period covered by the account; (b) the balance sheet, and where applicable the consolidated balance sheet, is or are drawn up so as to give a true and fair view of the state of affairs of the company and, if applicable, of all the companies the affairs of which are dealt with in the consolidated balance sheet as at the end of that period; and Laws of Malaysia 268 ACT 125 (c) the accounts, and where applicable the consolidated accounts, have been made out in accordance with the applicable approved accounting standards. (16) Every balance sheet and profit and loss account of a company l a i d before the company in general meeting (including any consolidated balance sheet and consolidated profit and loss account annexed to the balance sheet and profit and loss account of a holding company) shall be accompanied by a statutory declaration by a director or where that director is not primarily responsible for the financial management of the company by the person so responsible setting forth his opinion as to the correctness or otherwise of the balance sheet and profit and loss account and, where applicable, the consolidated balance sheet and consolidated profit and loss account. (17) Any document (other than a balance sheet prepared in accordance with this Act) or advertisement published issued or circulated by or on behalf of a company (other than a banking corporation) shall not contain any direct or indirect representation that the company has any reserve unless the representation is accompanied-- (a) if the reserve is invested outside the business of the company--by a statement showing the manner in which and the security upon which it is invested; or (b) if the reserve is being used in the business of the company-- by a statement to the effect that the reserve is being so used. (18) To the extent that any company registered under any written law relating to insurance is required to prepare balance sheets, revenue accounts and profit and loss accounts in the form prescribed by that law, the company shall be deemed to have complied with the requirements of subsections (5) to (17) and the Ninth Schedule if its balance sheet and profit and loss account is made out in accordance with that law but if the company carries on business other than insurance business so far as that law does not require the company to deal with any matters which are required to be dealt with under the Ninth Schedule, it shall be necessary for the company to comply with this section and the Ninth Schedule. (19) The provisions of this Act relating to the form and content of the report of the directors and the annual balance sheet and profit and loss account shall apply to a banking corporation and Companies 269 a licensed finance company, a licensed discount house, a licensed money-broker, a scheduled institution in respect of which the Minister charged with responsibility for finance has made an o r d e r under subsection 24(1) of the Banking and Financial Institutions Act 1989 and a non-scheduled institution in respect of which such Minister has made an order under subsection 93(1) of that Act with such modifications and exceptions as are determined either generally or in any particular case by the Bank Negara Malaysia. Relief from requirements as to form and content of accounts and reports 169A. (1) The directors of a company may apply to the Registrar in writing for an order relieving them from any requirement of this Act relating to the form and content of accounts or consolidated accounts or to the form and content of the report required by subsection 169(6) and the Registrar may make such an order either unconditionally or on condition that the directors comply with such other requirements relating to the form and content of the accounts or consolidated accounts or report as the Registrar thinks fit to impose. (2) The Registrar may where he considers it appropriate make an order in respect of any class of companies relieving the directors of a company in that class from compliance with any specified requirements of this Act relating to the form and content of accounts or consolidated accounts or to the form and content of the report required by subsection 169(6) and the order may be made either unconditionally or on condition that the directors of the company comply with such other requirements relating to the form and content of accounts or consolidated accounts or report as the Registrar thinks fit to impose. (3) The Registrar shall not make an order under subsection (1) unless he is of the opinion that compliance with the requirements of this Act would-- (i) render the accounts or consolidated accounts or r e p o r t , as the case may be, misleading or inappropriate to the circumstances of the company; or (ii) impose unreasonable burdens on the company or any officer of the company. Laws of Malaysia 270 ACT 125 (4) The Registrar may make an order under subsection (1) which may be limited to a specific period and may from time to time either on application by the directors or without any such application (in which case the Registrar shall give to the directors an opportunity of being heard) revoke or suspend the operation of any such order. Power of Registrar to require a statement of valuation of assets 169B. (1) The Registrar may, with notice in writing, require the directors of any company to supply a statement of valuation at current value of assets and liabilities of the company within the time specified in the notice. (2) The Registrar may, on the application of the company and in his absolute discretion, extend the period of time so specified in the notice referred to in subsection (1). Members of company entitled to balance sheet, etc. 170. (1) A copy of every profit and loss account and balance sheet (including every document required by law to be attached thereto) which is to be laid before company in general meeting accompanied by a copy of the auditor's report thereon shall, not less than fourteen days before the date of the meeting, be sent to all persons entitled to receive notice of general notice of general meeting of the company: Provided that if the copies of the documents aforesaid are sent less than fourteen days before the date of the meeting, they shall, notwithstanding that fact, be deemed to have been duly sent if it is so agreed by all the members entitled to attend and vote at the meeting. (2) Any member of a company (whether he is or is not entitled to have sent to him copies of the profit and loss accounts and balance sheets) to whom copies have not been sent and any holder of a debenture shall, on a request being made by him to the company, be furnished by the company without charge with a copy of the last profit and loss account and balance sheet of the company (including every document required by this Act to be attached thereto) together with a copy of the auditor's report thereon. Companies 271 (3) If default is made in complying with subsection (1) or (2) the company and every officer of the company who is in default shall be guilty of an offence against this Act, unless it is proved that the member or holder of a debenture in question has already made a request for and been furnished for and been furnished with a copy of the document. Penalty: Two thousand five hundred ringgit. Default penalty. Penalty 171. (1) If any director of a company fails to comply or to take all reasonable steps to secure compliance by the company with the foregoing provisions of this Division or has by his own wilful act been the cause of any default by the company thereunder, he shall be guilty of an offence against this Act. Penalty: Imprisonment for *five years or thirty thousand ringgit. (2) (Deleted by Act A616). (3) A person shall not be sentenced to imprisonment for any offence under this section unless in the opinion of the Court dealing with the case the offence was committed wilfully. DIVISION 2 AUDIT Appointment and remuneration of auditors 172. (1) At any time before the first annual general meeting of a company, the directors of the company may appoint, or (if the directors do not make an appointment) the company at a general meeting may appoint, a person to be the auditor of the company, and any auditor so appointed shall, subject to this section, hold office until the conclusion of the first annual general meeting. (2) A company shall at each annual general meeting of the company appoint a person to be the auditor of the company, and any auditors so appointed shall, subject to this section, hold office until the conclusion of the next annual general meeting of the company. *NOTE--Previously "two years or five thousand ringgit"­see Companies (Amendment) Act 1986 [Act A657]. Laws of Malaysia 272 ACT 125 (3) Subject to subsections (7) and (8), the directors of a company may appoint an approved company auditor to fill any casual vacancy in the office of auditor of the company, but while such a vacancy continues the surviving or continuing auditor, if any, may act. (4) An auditor of a company may be removed from office by resolution of the company at a general meeting of which special notice has been given, but not otherwise. (5) Where special notice of a resolution to remove an auditor is received by a company-- (a) it shall forthwith send a copy of the notice to the auditor concerned and to the Registrar; and (b) the auditor may, within seven days after the receipt by him of the copy of the notice make representations in writing to the company (not exceeding a reasonable length) and request that, prior to the meeting at which the resolution is to be considered, a copy of the representations be sent by the company to every member of the company to whom notice of the meeting is sent. (6) Unless the Registrar on the application of the company otherwise orders, the company shall send a copy of the representations as so requested and the auditor may (without prejudice to his right to be heard orally) require that the representations be read out at the meeting. (7) Where an auditor of a company is removed from office in pursuance of subsection (4) at a general meeting of the company-- (a) the company may, at the meeting, by a resolution passed by a majority of not less than three-fourths of such members of the company as being entitled so to do vote in person or, where proxies are allowed, by proxy forthwith appoint another person nominated at the meeting as auditor; or (b) the meeting may be adjourned to a date not earlier than twenty days and not later than thirty days after the meeting and the company may, by ordinary resolution, appoint another person as auditor, being a person notice of whose nomination as auditor has, at least ten days before the resumption of the adjourned meeting, been received by the company. Companies 273 (8) A company shall, forthwith after the removal of an auditor from office in pursuance of subsection (4), give notice in writing of the removal to the Registrar and, if the company does not appoint another auditor under subsection (7), the Registrar shall appoint an auditor. (9) An auditor appointed in pursuance of subsection (7) or (8) shall, subject to this section, hold office until the conclusion of the next annual general meeting of the company. (10) If a company does not appoint an auditor as required by this section, the Registrar may on the application in writing of any member of the company make the appointment. (11) Subject to subsection (7), a person shall not be capable of being appointed auditor of a company at an annual general unless he held office as auditor of the company immediately before the meeting or notice of his nomination as auditor was given to the company by a member of the company not less than twenty-one days before the meeting. (12) Where notice of nomination of a person as an auditor of a company is received by the company whether for appointment at an adjourned meeting under subsection (7) or at an annual general meeting, the company shall, not less than seven days before the adjourned meeting or the annual general meeting, send a copy of the notice to the person nominated, to each auditor, if any, of the company and to each person entitled to receive notice of general meetings of the company. (13) If, after notice of nomination of a person as an auditor of a company has been given to the company, the annual general meeting of the company is called for a date twenty-one days or less after the notice has been given, subsection (11) shall not apply in relation to the person and, if the annual general meeting is called for a date not more than seven days after the notice has been given and a copy of the notice is, at the time notice of the meeting is given, sent to each person to whom, under subsection (12), it is required to be sent, the company shall be deemed to have complied with that subsection in relation to the notice. Laws of Malaysia 274 ACT 125 (14) An auditor of a company may resign-- (a) if he is not the sole auditor of the company; or (b) at a general meeting of the company, but not otherwise. (15) If an auditor gives notice in writing to the directors of the company that he desires to resign, the directors shall call a general meeting of the company as soon as is practicable for the purpose of appointing an auditor in place of the auditor who desires to resign and on the appointment of another auditor the resignation shall take effect. (16) The fees and expenses of an auditor of a company-- (a) in the case of an auditor appointed by the company at a general meeting--shall be fixed by the company in general meeting or, if so authorized by the members at the last preceding annual general meeting, by the directors; and (b) in the case of an auditor appointed by the directors or by the Registrar--may be fixed by the directors or by the Registrar, as the case may be and, if not so fixed, shall be fixed as provided in paragraph (a) as if the auditor had been appointed by the company. Auditors' remuneration 173. (1) If a company is served with a notice sent by or on behalf of-- (a) at least five per centum of the total number of members of the company; or (b) the holders in aggregate of not less than five per centum in nominal value of the company's issued share capital, requiring particulars of all emoluments paid to or receivable by the auditor of the company or any person who is a partner or employer or employee of the auditor, by or from the company or any subsidiary in respect of services other than auditing services rendered to the company, the company shall forthwith-- (c) prepare or cause to be prepared a statement showing particulars of all emoluments paid to the auditor or other person and of the services in respect of which the payments have been made for the financial year immediately preceding the service of the notice; Companies 275 (d) forward a copy of the statement to all persons entitled to receive notice of general meetings of the company; and (e) lay the statement before the company in general meeting. (2) If default is made in complying with this section the company and every director of the company who is in default shall be guilty of an offence against this Act. Penalty: Two thousand five hundred ringgit. Powers and duties of auditors as to reports on accounts 174. (1) Every auditor of a company shall report to the members on the accounts required to be laid before the company in general meeting and on the company's accounting and other records relating to those accounts and if it is a holding company for which consolidated accounts are prepared shall also report to the members on the consolidated accounts. (2) An auditor shall, in a report under this section, state-- (a) whether the accounts and, if the company is a holding company for which consolidated accounts are prepared, the consolidated accounts are in his opinion property drawn up-- (i) so as to give a true and fair view of the matters required by section 169 to be dealt with in the accounts and, if there are consolidated accounts, in the consolidated accounts; (ii) in accordance with the provisions of this Act so as to give a true and fair view of the company's affairs; and (iii) i n accordance with the applicable approved accounting standards; (aa) if in his opinion the accounts, and where applicable the c o n s o l i d a t e d accounts, have not been drawn up in accordance with a particular applicable approved accounting standard-- (i) whether in his opinion the accounts or consolidated accounts, as the case may be, would, if drawn up i n accordance with the approved accounting standard, have given a true and fair view of the matters required by section 169 to be dealt with in the accounts or consolidated accounts; Laws of Malaysia 276 ACT 125 (ii) if in his opinion the accounts or consolidated accounts, as the case may be, would not, if so drawn up, have given a true and fair view of those matters, his reasons for holding that opinion; (iii) if the directors have given the particulars of the quantified financial effect under subsection 166A(5), his opinion concerning the particulars; and (iv) in a case to which neither subparagraph (ii)