FAQs on Transfer of Loan Exposure

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The RBI has consolidated the guidelines with respect to transfer of standard assets as well as stressed assets by regulated financial entities under a common regulation named Reserve Bank of India (Transfer of Loan Exposures) Directions, 2021 (“Directions”).

The Directions divided into five operative chapters- the first one specifying the scope and definitions, the second one laying down general conditions applicable on all loan transfers, the third one specifying the requirements in case of transfer of loans which are not in default, that is standard assets, the fourth one provides the additional requirement for transfer of stressed assets and the fifth chapter is on disclosure and reporting requirements.

Under the said Directions, the following entities are permitted as transferor and transferee to transfer loans-

We bring you this frequently asked questions on Transfer of Loans to assist you better understand the guidelines.

The file can be downloaded at this link: https://mailchi.mp/887939b2f979/qa32ogwo2t

We have also published FAQs on Securitisation of Standard Asset, the contents of FAQs can be accessed here and the file can be downloaded at this link.

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Summary of Scale Based Regulations

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A brief highlights of the regulations along with charts summarising classification of NBFCs can be viewed here. Our Youtube elaborating on the subject can be viewed here.

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A layered approach to NBFC Regulation:

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A summary of the regulations can be viewed here. Our Youtube elaborating on the subject can be viewed here.

Scalar regulatory framework for the NBFC sector

 

Indian Securitisation Awards, 2021

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As the securitization market in India is on an upswing, it is time to recognize performance, innovation and service. Awards are not merely a sense of accomplishment – awards are to encourage players to move to better services and consistent performance. The awards will be given by the Indian Securitisation Foundation at the 9 th Securitisation Summit 2021 on November 18, 2021 at Four Seasons Hotel, Mumbai and may be handed over to the awardees during the Securitisation Summit.

Details for 9th Indian Securitisation Summit may be accessed at this Link.

RISK MANAGEMENT POLICY– A tool of risk management

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Ridhima Jain | Executive | corplaw@vinodkothari.com

 

As in case of life, so also in business, risks are unavoidable. However, large organisations cannot afford to have a casual and pro-tem approach to risk management, as severity of some of the risks may cause significant erosion to shareholder value, even to the extent of affecting the solvency and liquidity of companies. Therefore, every company has to methodically identify, analyse, grade, mitigate and manage risks comprehensively. As size and complexity of organisations have increased, so also the need for proper risk management.

Risk management policy may be taken as a perfunctory compliance, and therefore, may be just a document that sits on the website of the company. On the other hand, a proper approach may be to use the risk management policy as the contextual document which assimilates the company’s approach to risk management, and may continuously act as the guide to the executive management.

Risk refers to the uncertainty in transactions undertaken by an organisation, which may be measured in terms of deviation from predetermined targets or probability of loss or inadequate profits. Risk often ranges from financial to non financial risks. Financial risks have an immediate bearing on finances of an organisation and may be in the form of credit risks, liquidity risks, operational risks or obsolescence risk. On the other hand, non-financial risks may be classified as strategic risks, compliance risks, fraud risks and reputation risks. Risk, by its very nature, is an inherent part of every business and its intensity only proliferates with the paced-up globalisation and digitalisation. This becomes evident from the increasing importance of the risk management function at the strategy making table of the concerned entities.

In this article, the author dwells on the importance of risk management framework for any organisation and also discusses the components of an ideal risk management policy.  What goes in a risk management policy holds a fair amount of significance as the entire risk management framework is structured on the basis of the policy formulated in this regard.

In this context, risk management refers to the process followed by an organisation to identify, understand and evaluate the risks faced by it and effectively mitigate the detected risks. It may be construed as a macro process comprising various micro processes like risk identification, risk analysis, risk assessment and risk mitigation.

The rise in importance of risk management may be attributed to the realisation that any transaction may be fruitless if the underlying risk goes unrecognised. Unrecognised risks are more dreadful than recognised risks and any risk for which the organisation is not prepared for, may become unmanageable at the later stage of the process. An efficient risk management framework also facilitates development of a robust contingency plan and helps save costs, which the organisation may have spent on firefighting the risk.

Failures arising out of poor risk management have persistently resulted in downfall of big corporates. Examples may include Nokia, which failed to determine appropriate strategy for their business and surrendered to strategic risks or Satyam Computers which failed to manage fraud risks. Certainly, regulators like the RBI have imposed monetary penalties on NBFCs and banks for their inability to effectively address compliance risks. Such actions are not limited to monetary penalties, as in case of Srei Infrastructure Finance Limited the regulator took the company to the NCLT to initiate a resolution process against it.

Approach towards risk management

It is important to approach risks in a suitable manner as it serves the spirit underlying the risk management framework. The manner of approaching risk is an organisation specific element, driven by numerous factors such as risk faced by the industry in which it operates. Even after determining risks faced by an industry, the risk approach would be influenced by the functioning model of the particular organisation. For instance, a bank’s risk mitigation strategy may be primarily focussed on credit risks whilst a trading company may focus on operational risks. However, a trading company having international operations may give equal weightage to currency and legal risks.

Even though the risk approach of an organisation differs, an ideal approach should determine key risks after considering both external and internal influencing factors. Along with, for efficient management of risk, the approach should undertake a “top-down approach” by which management philosophy is clearly communicated to the grass root level employees as well as a “bottom-up approach” by which risks detected by employees at each level are communicated to the top management. The two-way approach will lead to fostering a risk aware culture throughout the organisation.

The primary responsibility of the risk management function may be reposed on the board of directors or the risk management committee. Apart from the companies mandatorily required to formulate a risk management committee, other companies may also formulate such committee to give undivided attention to the risk management function. Also, companies may formulate sub teams whose main role may be to handle specific risks which may be significant for the company. For instance, an organisation engaged in the FMCG segment may constitute a commodity risk management team for managing volatility in commodity prices. Further, an organisation may constitute a separate policies or separate committee altogether for specific risks. For instance, an organisation may formulate business risk and assurance committees to specifically review business and strategic risks.

All in all, an organisation’s approach towards risk management is primarily influenced by the importance it gives to the risk management function and relevance of the risks to its operations. Accordingly, risk management policy of the organisation should be framed to reflect the approach adopted by  it towards the risks faced by it.

Risk Management Policy

Risk management policy may be construed as a document regulating risk management function in an organisation. Having discussed the importance of risk management, we understand that the function is imperative and flows through every department in an organisation. Every employee in the organisation should be made aware of the flow of risk management process which is ensured by a well documented risk management policy. In essence, such policy provides a comprehensive guide to the risk philosophy of the organisation. The policy lays down a foundation on which the whole enterprise risk management (‘ERM’) is built. Once the ERM has been set up, the policy facilitates integration and gives direction to efforts of all the personnel in the organisation towards achieving common risk management goals such as minimisation of adverse impacts of a project or exploring unravelling opportunities.

Contents of risk management policy

Considering the contents of risk management policy, the coverage of the policy should be broad to provide an enhanced scope towards the function. That is, the policy should provide for all the foreseeable risks that the organisation may face in its future.

Further, the policy should not  simply be a document, incorporating or rather reiterating the regulatory requirements, but it should also encompass the probable risk areas. An ideal policy would include:

Brief background of the organisation Discussion of the background of the organisation would provide an enhanced understanding about the source of risks arising in the course of the business.
Objectives and importance of the policy Whilst performing any activity, besides knowing what is to be done, it is equally important to understand why it is being done. Discussion on the objectives of the policy would give a vision to the reader and enhance the meaning to the upcoming contents of the policy.
Applicability and effective date Prior to understanding any framework it is essential to understand the operations it covers and the date from which it is applicable.
Requirements as per the statute An insight into the regulator’s expectations regarding risk management policy would significantly influence the policy of the organisation. For instance,  the Companies Act, 2013 prescribes that the audit committee of a company shall evaluate the risk management systems. Similarly, the independent directors, as well, should provide independent judgment on issues like risk management and are responsible for integrity of the risk management system.

In this regard, SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (‘SEBI (LODR) Regulations, 2015’) also vests enormous responsibilities on the board of directors of the listed entity. Apart from framing a risk management plan, the board of directors are also responsible for defining roles and responsibilities of the risk management committee.

Some of the mandatory compliances with respect to risk management policy are discussed in the forthcoming paragraphs.
Risks faced by the organisation Categories of risks faced by the organisation along with particular risks and description thereof should be clearly specified in the policy. Such specifications would acquaint the reader about the intent behind the entire risk management framework.
Hierarchy of risk management Establishment of such hierarchy is essential for an efficient risk management culture as it provides for an effective flow of risk information. Along with the structure, roles, responsibilities and accountabilities of the hierarchy elements should be clearly defined. More particularly, composition of risk management committee and particulars of appointment of the chief risk officer should be enunciated in the policy.  A broad idea of an ideal hierarchy is shown in the following diagram.
Risk reporting The policy should clearly specify as to which risks will be reported, how the risks will be reported and to whom the risks will be reported in the risk hierarchy. This may be seen as an important element of the whole framework as it is obvious that every risk arising may not have an impact on the organisation. Thus, reporting of such minor risks may waste time and effort of the personnel involved.
Treatment of different types of risks The organisation may specify treatment of risk on the basis of classifications made by it. For this purpose, risks may be broadly classified as controllable or uncontrollable risks, inherent or residual risks.
Business continuity plan The organisation should indicate development of such plans in its risk management policy. The plan should cover recovery plans after any major disruption faced by the organisation. A mention of such a plan would assure the policy users of the organisation’s preparedness of risks arising in all perceivable circumstances.
Risk management process The central element of the framework typically involves the procedure for risk management in the organisation. Ideally the risk management process should be carried out in the following manner:

For instance, when considering fraud risks, firstly, lacunas in the organisational structure wherein fraud may be perpetrated are identified. The identified areas turn out to be the origin of fraud risk. Secondly, an analysis is made as to what is the probability that the risks will materialise. Any risk with high probabilities should be given due attention. Thirdly, the impact on the organisation when the risk materialises should be assessed. The output from this stage is used to prioritise risks according to their probability of occurrence and their impact. Finally, risks are mitigated by adopting a suitable risk mitigation strategy.
Risk management tools The organisation may provide a description of the tools utilised by it in the process of risk management. Common tools used by the organisations are:

–        Assessment matrix: The matrix highlights velocity of the risks faced by the organisation. It also suggests the impact of the potential risk in various functions of the department which are measured by assignment of specific scores. The criteria for assignment of scores may also be specified in the report.

 

–        Stress tests – Organisations conduct stress tests to study the impact of risks getting materialised. Stress tests are mandated for banks and NBFCs in India.

 

–        Risk registers: These are registers wherein all estimated risks and actual risks faced by the organisation are recorded along with their details such as their risk category, likelihood of occurrence, their impact and mitigation plan is suggested.

 

–        Department-wise risk summary: The organisation may, after identifying risks faced by it as a whole, further bifurcate into risks faced by individual departments.
Review of risk management tools Apart from the regular risk reporting, the results derived from risk management tools may be reviewed periodically to ensure that any risk element does not go undetected. For example, there may be provisions for submission of a report on risk register on a half yearly basis. In this regard, formats for such submissions and a calendar accommodating timelines for all submissions may be incorporated in the policy.
Risk audit Even though the risk management function is a complete function, its efficiency is enhanced when integrated with internal audit. Audit of the risk management framework provides an assurance regarding the framework and brings in light deficiencies in the framework. It also indicates the level of effectiveness of internal controls.
Periodicity of review The intervals at which the policy will be reviewed should be clearly specified as well as a schedule should be attached to describe intricacies of the amendment.
Dissemination of the policy The manner and channels used for disclosing the policy should be expressly mentioned.

 

Regulatory prescriptions regarding risk management policy

In addition to the aforesaid, it is mandatory to comply with the broad guidelines laid by the specific regulators governing an organisation which may be read as:

The Companies Act, 2013: Section 134(3)(n) of the Companies Act, 2013 prescribes that the report of the board of directors shall contain a statement regarding the risk management policy of the company. Such policy should contain all the elements of risk more particularly, elements of risk which may threaten the existence of the company.

Securities and Exchange Board of India: Regulation 17 of the SEBI (LODR) Regulations, 2015 reposes responsibility of framing and implementing the risk management plan on the board of directors of the company. Further, Schedule II of the Regulations prescribes that the risk management committee is responsible for laying down a detailed risk management policy which shall mandatorily include:

  • Framework for identification of risk particularly financial, operational, sectoral, sustainability (particularly, ESG related risks), information, cyber security risks.
  • Business continuity plan of the company.
  • Risk mitigation systems and internal control processes for mitigation of detected risks.

Also, the committee has the responsibility of overseeing implementation of risk management policy and periodic review of the same.

Reserve Bank of India: In the context of NBFCs, the regulator lays specific stress on liquidity risk management framework to be adopted by applicable For the purpose, a liquidity risk management policy is to be laid down by the board of directors of the NBFC which shall provide for:

  • Manner of maintaining liquidity at all times;
  • Entity-level liquidity risk tolerance limits;
  • Funding strategies to be adopted by the NBFC to maintain its liquidity levels;
  • Prudential limits;
  • System for periodic review of liquidity of the NBFC and assumptions used in liquidity projection;
  • Framework for stress testing;
  • Contingent funding plan;
  • Nature and frequency of management reporting;

Further, both banks as well as NBFCs are required to structure an asset liability committee to provide a balance between those two aspects of the organisation. However distinction lies in their framework as liquidity is the most stressed point in NBFCs, but in case of banks, the RBI has laid out a more comprehensive “risk appetite framework” which prescribes risks to be managed at an aggregated level and not to be restricted at a specific risk/function. Apart from other specifications, the framework requires risks to be considered from qualitative as well as the quantitative perspective. The prescribed framework aims to mitigate financial risks, more specifically, interest rate and liquidity risks.

The gravity of the framework can be derived by solely looking at the strict composition and quorum requirements of the risk management committee. In this regard, the RBI has also prescribed an “Internal Capital Adequacy Assessment Process” in line with the Basel norms, to be laid down at individual bank level as well as at the group level to analyse significant risks faced by the banks. This may be considered as the most meticulous prescription by a regulator regarding the risk management framework, the reason being obvious, that the banks play a pivotal role in the capital flow of the economy.

Insurance Regulatory and Development Authority of India: The regulator, vide its corporate governance guidelines for insurers, reposed the responsibility of laying down a risk management framework and a risk policy by the risk management committee of the insurer. Specific stress has been laid down on fraud risk management faced by the insurer.

Conclusion

From the foregoing, we derive that risk management plays a crucial role in an organisation’s functioning. Thus, it is essential to have a sound risk management system. Such a system arises from a well drafted risk management policy. It is safe to say that risk management policy is the first step towards building a risk management framework. However, merely establishing a risk management policy does not assure a sound risk management framework. The execution of the plan so laid down is an equally important aspect to be looked at.

 

Our other resources can be accessed below:

  1. Risk-based Internal Prescription for Audit Function – https://vinodkothari.com/2021/03/risk-based-internal-prescription-for-audit-function/
  2. Liquidity Risk Framework: A snapshot – https://vinodkothari.com/2019/11/liquidity-risk-framework/
  3. Chief Risk Officer: Strengthening risk management practices – https://vinodkothari.com/2019/05/chief-risk-officer-cro/
  4. Clubbing of Committees – https://vinodkothari.com/wp-content/uploads/2017/03/Clubbing_of_Committees-1.pdf

 

Revised formats for limited review/ audit report for entities with listed NCS

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corplaw@vinodkothari.com

Our resources can be accessed through below links:

  1. FAQs on recent amendments under the Listing Regulations – https://vinodkothari.com/2021/08/faqs-recent-amendments-listing-regulations/
  2. Articles on fifth amendment regulations:

Links to SEBI circulars and amendments:

  1. Revised formats for limited review/audit report for issuers of non-convertible securities (dated October 14, 2021)  – https://www.sebi.gov.in/legal/circulars/oct-2021/revised-formats-for-limited-review-audit-report-for-issuers-of-non-convertible-securities_53279.html
  2. Revised formats for filing information for issuers of non-convertible securities (dated October 05, 2021) – https://www.sebi.gov.in/legal/circulars/oct-2021/revised-formats-for-filing-financial-information-for-issuers-of-non-convertible-securities_53136.html 
  3. Revised formats for financial results and implementation of Ind AS by listed entities which have listed their debt securities and/or non-cumulative redeemable preference shares (dated August 10, 2016)- https://www.sebi.gov.in/legal/circulars/aug-2016/revised-formats-for-financial-results-and-implementation-of-ind-as-by-listed-entities-which-have-listed-their-debt-securities-and-or-non-cumulative-redeemable-preference-shares_32958.html 
  4. Format for financial results for listed entitites which have listed their debt securities and/or non-cumulative redeemable preference shares (dated November 27, 2015) – https://www.sebi.gov.in/legal/circulars/nov-2015/format-for-financial-results-for-listed-entities-which-have-listed-their-debt-securities-and-or-non-cumulative-redeemable-preference-shares_31120.html
  5. SEBI(LODR)(Fifth Amendment)Regulations, 2021 (dated September 07, 2021) – https://www.sebi.gov.in/legal/regulations/sep-2021/securities-and-exchange-board-of-india-listing-obligations-and-disclosure-requirements-fifth-amendment-regulations-2021_52488.html  

FAQs on Securitisation of Standard Assets

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On September 24, 2021, the RBI released Master Direction – Reserve Bank of India Securitisation of Standard Assets) Directions, 2021. The same has been released after almost 15 months of the comment period on the draft framework issued on June 08, 2020. This culminates the process that started with Dr. Harsh Vardhan committee report in 2019.

It is said that capital markets are fast changing, and regulations aim to capture a dynamic market which quite often leads the regulation than follow it. However, the just-repealed Guidelines continued to shape and support the securitisation market in the country for a good 15 years, with the 2012 supplements mainly incorporating the response to the Global Financial Crisis. Read more →

Disclosure in financial statements: Relationship with struck off companies

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– Himanshu Dubey, Executive | corplaw@vinodkothari.com

The financial statements of a company are not merely meant to show the profit or loss and/or assets and liabilities of the company. The notes to such financial statements also disclose various nuances that the shareholders of the company shall be aware of. Such disclosures may vary from material transactions with related parties to the purpose of inter-corporate loans, guarantee or security. The financial statements are meant to be prepared in accordance with Schedule III (‘Schedule’) to the Companies Act, 2013 (‘Act’). On March 24, 2021, MCA introduced more elaborative disclosure requirements regarding financial statements of companies which are effective from April 1, 2021 i.e. for financial statements prepared for FY 2021-22. One such requirement is disclosure of transactions with companies struck off by Registrar of Companies (‘RoC’) under section 248 of the Act, or under section 560 of the Companies Act, 1956. The following particulars are to be disclosed in such case:

  • Name of the struck off company
  • Nature of transactions with company
  • Balance outstanding and relationship with the struck off the company.

The transaction can be in the nature of investment in securities, receivables, payables, shareholding of the struck-off company in the company and any other outstanding balances.

Before digging deep on the disclosure requirements, it is imperative to understand the provisions for striking off a company by RoC both under the Act as well as the Companies Act, 1956.

Under the Companies Act, 1956

Under the Act

If the RoC has reasons to believe that:

A notice to the company and all the directors of the company, shall be sent by RoC articulating intention to strike off the name of the company and requesting them to send their representations within a period of thirty days from the date of the notice. At the expiry of the time, the RoC may, unless cause to the contrary is shown, strike off its name and shall publish notice thereof in the Official Gazette pursuant to which the company shall stand dissolved.

Further, a company may itself by passing a special resolution or consent of seventy-five per cent members after extinguishing all its liabilities, file an application to the RoC for removing its name on all or any of the grounds specified in the figure above.

Practical difficulties in disclosures

The disclosure requirements of transactions with companies the name of which has been struck off is too vigorous since it requires too much background work to be done on the end of companies. Further, MCA has been issuing circulars containing names of companies which have been struck off. The companies will literally have to struggle through such a cumbersome and tedious task to find out one name among the thousands as issued by MCA.

There are some more practical complications that needs to be highlighted where the name of the company, that has been struck off, as available in records of the company may not match with the one mentioned in MCA’s list:

  • Such company has merged with some other company
  • Such company has changed its name
  • Such company might have converted itself to some other kind of entity like LLP

Going further, even in terms of volumes, there are a bunch of companies with whom a company transacts in its course of business. Tracing each one of them and identifying those which has been struck off seems to be a next to impossible task for a lot of companies.

Recommendations for companies for complying with the requirements

The companies may opt for following systems and procedures depending upon the nature of transaction it has with a company the name of which has been struck off:

Nature of relationship Practical way of dealing
Debtor The company might look through debtors periodically, especially those the receivables from whom are due for too longer than the usual time.
Creditor If the payment made by the company has bounced for more than once, they may check if the aforesaid has been struck off.
Investment in securities Unless a co. is an investment company or NBFC, it will not have several investments. Therefore, it will be comparatively easy to track such companies.
Shares held by stuck off company This one might seem like a demon. There are listed companies with lakhs of shareholders. One more point to be noted in this regard is there might be cases of restructuring where a company might have merged or demerged. In such cases, the resulting company will have to carry the baggage of the transferor company (old company) as well in this regard. We might also take into account that there are certain benami shareholders in many companies for which IEPF rules are already in place.  Tracking the names of such companies which have been struck off from such a large number of shareholders and collating data is a next to impossible task.
Other outstanding balances (to be specified) This is a residuary field which requires any outstanding balance with a struck off company to be disclosed. Needless to say, this is an open-ended heading and includes in its ambit any transaction that is not covered above. Through this, the reporting company is expected to get into an exercise of identifying all transaction(s) with a struck off company with which the company has outstanding balance as on the last day of reporting period.

ICAI Guidance

Pursuant to the January 2022 edition of the ICAI Guidance Note on Division II – Ind AS Schedule III to the Companies Act, 2013 and Guidance Note on Division II – Non-Ind AS Schedule III to the Companies Act, 2013, the following guidance is provided with respect to disclosure of information regarding outstanding balances with struck off companies:

Identification of struck-off company The names of the companies are required to be searched / authenticated from public notice (STK-7) during the reporting period or any previous year(s), if balances with such companies are outstanding as on the last day of the reporting period.

Further, there should not have been any order for restoration of the name of such companies before the approval of the financial statement. It may be noted that this again is an task to track if the name of the companies have been restored vide order of any NCLT any other adjudicating authority as the orders remain scattered and at times not timely uploaded on the website.
Amount of balance outstanding (1) The gross carrying amount is required to be disclosed without netting any provision for doubtful debts or impairment loss allowance.

(2) Infact the Guidance Note states that even such transaction which might have happened during a financial year and settled/reversed/squared off, etc., during the same financial year such that the balance outstanding is NIL as at the end of the reporting period, even such transactions are required to be disclosed. This adds up to the anyway unending disclosure in this context. There may be a situation where a company is not a struck off company at the time of transaction but eventually becomes one and is a struck off company as on the last day of the reporting period. With the point (2) above, one is left to an endless thought whether the reporting company is required to review all the transactions it had during the previous year(s)? because only then it may be able to track if there is any entry which might come under point (2) above.
Relationship with the struck-off company, if any, to be disclosed In this field, the company is required to disclose its relationship, if any, with the corresponding struck-off companies as per section 2(76) of the Act, as on the balance sheet date.
Details not to be included Companies whose names were struck off during the financial year but the order had been passed by any adjudicating authority (for e.g., NCLT) name before approval of the financial statements.

Conclusion

In a nutshell, MCA is asking companies to search for the dead man but the dead man isn’t waking up. There might be cases where the name/identity of the dead man would have already been extinguished or changed during its lifetime. We understand that the intent of the Government is to read out all the struck off companies from the database of corporates. However, to effectively meet this purpose, MCA may opt to come out with a digital database of all companies which have been struck off either under the Act or the previous Act since it will facilitate companies to search data at one place. This might not be a complete way out but due to the practical hassles as discussed above in the article, MCA needs to review the requirement considering the practical issue being faced by the companies and introduce systems in place to enable compliance.

[1] https://economictimes.indiatimes.com/news/economy/policy/govt-says-16527-companies-struck-off-during-april-2020-june-2021-period/articleshow/84755626.cms?from=mdr

[2] https://www.livemint.com/news/india/37000-companies-getting-struck-off-from-records-mca-11632313659564.html

[3] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1703455

Managing significant transactions & arrangements with subsidiaries

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– Decoding Regulation 24 of Listing Regulations

By Payal Agarwal and Himanshu Dubey | corplaw@vinodkothari.com

Updated as on 27th October, 2021

The seamless flow of information between a holding company and its subsidiaries is imperative for effective governance on the level of a group. Since listed companies in India often function with complex structures having a lot of subsidiaries, it is not feasible for the holding company to deliberate upon all the matters of its subsidiary. Therefore, if not all, at least the significant transaction of the subsidiaries shall be placed on the board of the holding company. Regulation 24 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (‘Listing Regulations’) provide for the same. The same though sounds commendable but is also surrounded by various practical difficulties while its implementation. Sometimes the compliance with the aforesaid provision becomes merely perfunctory. If too much is reported to the holding company, the relevance is lost while if too less is reported then the materiality is lost.

Need of fostering corporate governance requirements with respect to subsidiaries

In the normal course of business, it is very common for companies to have subsidiaries. However, the significance of such subsidiaries on the overall performance of the holding company varies. In case of listed companies, since the interest of the public at large is at stake, it becomes imperative that such stakeholders shall not only be informed about the listed company but also its subsidiaries. Ofcourse, the level and depth of information shall vary depending upon the significance of the subsidiaries as well as the significance of transactions being undertaken by such subsidiaries. Considering the aforesaid, Regulation 24 of the Listing Regulations requires the listed holding company to ensure corporate governance in its unlisted subsidiaries in certain ways. One of such ways is provided under sub-regulation (4) of Regulation 24 (Regulation) which says that the management of the unlisted subsidiary shall periodically bring to the notice of the board of directors of the listed entity, a statement of all significant transactions and arrangements entered into by the unlisted subsidiary.

The above-mentioned requirement was earlier applicable only to material unlisted subsidiaries but pursuant to amendment applicable w.e.f. April 1, 2019, the requirement has now been made applicable to all the unlisted subsidiaries of the listed holding company. However, the requirement though seems unequivocal, it comes with certain anomalies and practical difficulties. The author tries to present an analysis of the Regulation so as to answer the anomalies coming in the way of its practical implementation.

Applicability to subsidiaries

It is very common for a large corporate group to have various subsidiaries which in turn have various subsidiaries under them i.e. step down subsidiaries, from the angle of the ultimate holding company. The possibility of the holding company being listed and the subsidiaries including step down subsidiaries being unlisted is very high. This kind of a structure is very common and can be seen in most of the major corporate groups in India. Since the Regulation talks about subsidiaries, a question might pop up whether it only includes the immediate subsidiaries or the step down subsidiaries as well.

Given the purpose of the Regulation of enhancing corporate governance in the subsidiaries and also the fact that the shareholders interested in the listed company shall be aware of the business being undertaken by the subsidiaries as well. The principle behind this is that on the consolidated level, the performance of the holding company gets affected by the performance of its subsidiaries including its step down subsidiaries. Therefore it is pertinent to have some degree of supervision over them in terms of corporate governance though they are unlisted. Considering this rationale, there seems to be no purpose of excluding the step down subsidiaries from the purview of this Regulation. Hence, the Regulation will  be applicable to both immediate and step down unlisted subsidiaries. Let us understand the applicability of the Regulation under different cases enunciated below:

 

Case 1: since both the immediate subsidiary and the step down subsidiary are unlisted, the Regulation will apply to both of them and significant arrangements or transactions entered into by them will be reported to the ultimate holding company.

Case 2: since the subsidiary itself is a listed company and the Regulation clearly states that it applies to unlisted subsidiary. Therefore, the Regulation will not apply to the subsidiary. Going further, the step down subsidiary is unlisted, but the holding company just one level above is listed. Therefore, the Regulation will apply to unlisted step down subsidiary in relation to its immediate holding company. The ultimate holding company at the top will not be required to note or review the significant transactions or arrangements of the step down subsidiary under the Regulation.

Case 3: since the subsidiary is unlisted, the Regulation will have to be complied in relation to it. However, going forward to the listed step down subsidiary, since it is itself listed with the stock exchange, the Regulation will not apply as it is applicable only to unlisted subsidiaries.

Issues to address

Regulation 24(4) of the Listing Regulations reads as below –

“The management of the unlisted subsidiary shall periodically bring to the notice of the board of directors of the listed entity, a statement of all significant transactions and arrangements entered into by the unlisted subsidiary.”

The following may be require to be identified –

While a plain reading entails the aforesaid questions, a deep analysis of the provisions and on consideration of the practical implications, further issues/questions may arise which have been dealt with at relevant places in this write-up.

Meaning of Transactions or Arrangements

The first question that arises while complying with the requirements of Regulation 24(4) is the identification as to what constitutes transaction or arrangement. While the term ‘transaction’ is not defined, the meaning of the same may be construed from Regulation 2(1)(zc) of the Listing Regulations and Indian Accounting Standard (Ind-AS) 24, defining the term “related party transaction” (RPT) .

The term has been defined as –

A related party transaction is a transfer of resources, services or obligations between a reporting entity and a related party, regardless of whether a price is charged.

Accordingly, the term transaction may be understood to be “a transfer of resources, services or obligations between two parties”. Similarly, arrangements shall mean a plan or programme for undertaking or understanding to undertake such transactions in future.

 

Items not considered as transaction/ arrangement

There are various line items in the financial statements which does not arise out of any transaction or arrangement but as a result of accounting entries. Such line items such as deferred tax expenditure, provisions for future liabilities, unrealised gains or losses, etc do not involve any contract, result into any transfer and does not involve two or more parties. Therefore, these fail to contain the basic features of transaction and should not require reporting.

On the other hand, there are certain off-balance sheet items such as guarantee, or derivative transactions. The component of “transfer” may not be present from the early stage but may arise in due course. Moreover, these arise out of contracts and constitute transactions. Therefore, the same should be reported at the values as recognised in the books of accounts.

Assessment of Significance

The second step that comes after identifying the transaction/arrangement is the assessment of significance. For the purpose of Regulation 24(4), a transaction or arrangement is significant if it individually exceeds or is likely to exceed ten percent of the total revenues or total expenses or total assets or total liabilities, as the case may be, of the unlisted subsidiary for the immediately preceding accounting year.

The criteria of significance as provided above requires that the threshold needs to be checked against different parameters “as the case may be”. The parameter to be checked will depend upon the nature of the transaction. Therefore, depending upon the nature of the transaction, the significance shall be assessed against the threshold determined on the basis of figures under relevant head as explained below:

 

There may be instances where the transaction does not affect any one parameter in isolation but  two or more of the parameters i.e. revenue, expenses, assets or liabilities together. In such cases, an issue may arise as to which parameter has to be considered. In such cases, all the parameters applicable to such a transaction shall be considered. 10% threshold of all such applicable parameters shall be determined and the lowest of such threshold shall be applied for assessment of significance of such transaction.

For example, S Ltd, the subsidiary of A Ltd, has entered into a transaction with Z Ltd, involving sale of goods. Such transaction involves revenue and therefore, significance of such transaction has to be assessed as a percentage keeping the total revenue of the preceding accounting period as the base for deriving such percentage. Say for example, the revenue of S Ltd is Rs. 100 crore in the preceding financial year. Therefore 10% of it will be Rs. 10 crores. Hence, if the value of the transaction being entered by  S Ltd with Z Ltd exceeds Rs. 10 crores, the same will qualify as a significant transaction for the purpose of the Regulation.

However, consider another example in which S Ltd has entered into an arrangement which impacts both the assets and expenses of the Company (creation of a new capital asset involving a huge outflow of cash). In such a case, both the assets and expenses being involved, the significance of the transaction has to be assessed for each of the bases individually and the one that hits the requirement at the lower end shall be taken for assessment of significance. Say for example, the assets and the expenses of S Ltd in the preceding financial year was Rs. 500 crores and Rs. 150 crores each. In such a case, thresholds shall be calculated based on both the figures and the lower of the two shall be the one that will determine the significance of the transaction. In the instant case, the thresholds are Rs. 50 crores and Rs. 15 crores, therefore the lower of the two i.e. Rs. 15 crores will be the one that will be considered. Hence, if the amount of transactions being undertaken exceeds Rs. 15 crores, it will qualify as a significant transaction.

 

Basis for assessment – standalone or consolidated?

Having settled with the parameter to be considered for various transactions, another question that may tweak our mind is whether the total revenues or expenses or assets or liabilities, as the case may be , has to be considered on a standalone basis or on a consolidated basis for the subsidiary. Here, one has to consider the fact that the compliance of the provision has to be ascertained by the listed holding company. Any company, which is a subsidiary of the subsidiary company, ultimately becomes the step-down subsidiary of the listed holding company thereby attracting Reg 24(4) of the Listing Regulations for reasons as discussed above and reporting its significant transactions or arrangements to the board of the listed company. In view of the same, an inference may be drawn that the aggregate figures for the preceding financial year shall be taken on a standalone basis, and not on a consolidated basis. This will also help in getting a clear picture and involving only those transactions that are actually significant for the subsidiary.

Determination of significance: Transactions/Arrangements based on contract

It is a very general phenomenon in companies to enter into contracts with different parties. Such contracts often extend to years and give rise to transactions. A common ambiguity that may arise in such cases is on determining the amount of such transaction for the purpose of the Regulation. Let us understand this scenario with some examples.

A Ltd., a subsidiary of B Ltd., enters into a rent agreement with X Ltd. The rent agreement extends to 5 years at a total value of Rs. 30 lakhs i.e. at a monthly rent of Rs. 50,000 per month. Now what shall be considered as the value of transaction for the purpose of the Regulation, Rs. 30 lakhs or Rs. 50 thousand? In our view, the total amount attributable to that particular financial year shall be considered for the purpose of the Regulation. In the instant case, assuming that the contract is effective from October 1, 2021, the amount shall be Rs 3 lakhs (rent during the FY 2020-21). Therefore, for assessing the significance of the transaction, the amount of Rs. 3 lakhs shall be compared against the threshold.

In the same case above, even if there has been no specific tenure of the contract but it rather would have only discussed monthly payment of Rs. 50 thousand as rent, still the amount payable in total throughout that financial year shall be taken and not the monthly rent.

The underlying principle is that the total amount of that transaction attributable to that financial year shall be considered as the amount of transaction for assessing significance under the Regulation.

Reporting: decoding the meaning of management and periodicity

Meaning of management

Regulation 24(4) says that “the management of the unlisted subsidiary shall periodically bring to the notice of the board of directors of the listed entity xxxxxxxxx”. This again comes up with two questions: who constitutes management and what shall be the periodicity for bringing significant transactions or arrangements to the notice of the board of the listed holding company.

Going by the general meaning as well as the intent and purpose of this requirement, the board of directors of the subsidiary as well as the KMPs/other senior executives just a level below the Board should be taken to constitute ‘management’.

Periodicity of reporting

Coming to the question of periodicity, the same has not been specified in the Listing Regulations itself, but left to the discretion of the board. However, the intent of the Regulation is to enhance corporate governance in the subsidiaries. Hence the periodicity should be reasonable enough to capture such a purpose.

Here, one may note that Regulation 17(2) of the Listing Regulations requires the board of the listed company to meet at least four times a year. Further, under Regulation 33, financial results are placed before the board quarterly which also includes results of its subsidiaries (since the results have to be submitted on both standalone and consolidated basis). Therefore, in consonance with the same, the list of significant transactions or arrangements of the subsidiaries should also be placed before the board of the listed company, if not more frequently, at least on a quarterly basis.

De-minimis exemptions – can a leeway be created?

Regulation 24(4) of the Listing Regulations, though very significant in terms of enforcing corporate governance requirements and ensuring transparency in respect of the unlisted subsidiaries of the listed company, may sometimes prove extraneous in the spirit of law. There may be cases where the subsidiary as a whole may be too small to have any significance on the accounts of the holding company.

A classic example of the same may be in case of a company, as a listed holding company, having a paid-up capital of Rs. 50 crores or above, having a subsidiary with total asset size of Rs. 1 crore. In this case, the total assets of the subsidiary amounts to mere 2% of the total asset size of the listed company. Here, a transaction involving purchase/ sale of an asset of Rs. 10 lacs will fall within the meaning of a significant transaction for the subsidiary company, however, will have a minimal impact on the listed holding company.

In such cases, going by the letter of the law, such transactions, even though having no significant impact on the listed entity as such, will have to be placed before the board thereby creating an unnecessary compliance burden producing no meaningful results.

A possible leeway that may be created as a make-through to provide certain de minimis exemptions on the basis of certain amounts or percentages. For example, a listed company may approve through its board and audit committee, that any transaction undertaken by a subsidiary, which amounts to not greater than 2% of the turnover or the paid-up capital or the networth of the listed company, will not be required to be reported to the board of the listed company.

However, while putting such de minimis exemptions, utmost care has to be taken to ensure that the self-approved exemptions do not turn out to completely erode the intentions of the law. Further, the requisite approvals have to be obtained and properly documented so as to avoid falling into a legal moss at a later stage.

Conclusion

The requirement under Regulation 24(4) enhances corporate governance standards in subsidiaries which were otherwise unlisted and exempted from such scrutiny. It allows the listed holding company to exercise due diligence in significant transactions entered by subsidiaries. However, in certain cases, the requirement becomes redundant due to absence of any material effect of subsidiary’s transactions on the overall performance of the holding company due to minimal asset size or revenue. Therefore, the idea of exempting subsidiaries below a certain threshold in terms of asset size or revenue of the listed company can be thought upon.The market regulator may also take a step to bring this as an amendment to the law, so as to ensure reduction of extra-compliance burden as recently suggested by FM Nirmala Sitharaman in her speech on the 53rd Foundation day of ICSI.

 

Read our other article on the subject –

‘Material Subsidiary’ under LODR Regulations: Understanding the metrics of materiality:

https://vinodkothari.com/2021/05/understanding-metrics-of-materiality/

Samagrata – September 2021

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