ICSI’s Golden Jubilee Release-Governance Code for Charitable Entities

By Dipanjali Nagpal (corplaw@vindokothari.com)

The Institute of Company Secretaries of India has released the Code for Charity Governance[1] at the 45th National Convention of Company Secretaries to bring about charitable entities within the ambit of good governance as envisioned by the Hon’ble Prime Minister Shri Narendra Modi for empowering the nation. Read more

Defaulting LLPs under the radar of MCA – Clean India Drive Continues!

By Smriti Wadehra, (corplaw@vinodkothari.com)

The recent massive clean-up operation of Ministry, whereby RoCs started issuing public notices in April, 2017 to strike off the name of the companies from the register of companies and to dissolve them unless a cause is shown to the contrary, within thirty days from the date of the notice, has come to centre of focus. Thereafter, on September 5, 2017 the government confirmed that names of over 2.09 lakh companies have been struck off from the Register of Companies for failing to comply with regulatory requirements and was decided that the Directors of such shell companies which have not filed returns for three or more years, will be disqualified from being appointed in any other company as Director or from being reappointed as Director in any of the companies where they had been Directors, thereby compelling them to vacate office. It has been reported that as a result of this exercise, at least two to three lakh of such disqualified Directors has been debarred and Roc wise list of directors was uploaded on MCA website along with MCA circular stating as:

 

“Pursuant to Section 164 (2) (a) of Act, 2013 the directors of the companies  which  have not filed financial statements or annual returns for any continuous period of three financial Years 2014, 2015 and 2016 have been hereby declared disqualified. Accordingly, Directors enlisted in Annexure A attached shall stand disqualified upto 31.10.2021.”

 

Further, pursuant to the action of the Ministry of Corporate Affairs of removing/striking-off and consequent cancellation of the registration of around 2,09,032 shell companies, the Department of Financial Services, Ministry of Finance has directed all the Banks to restrict operations of bank accounts of such companies by the Directors of such companies or their authorized representatives making the clean up operation a massive drive.

 

This drive was undertaken for companies but its seems that Ministry has extended its ambit to include Limited Liablility Partnerships (“LLPs”) registered under Limited Liability Act, 2008 (“Act”) under its scrutiny process. It is being noticed that the Ministry has recently started issuing notices to LLPs individually by way of a reminder notice to make the compliances w.r.t filing of necessary returns/ statements as per the Act failing which the LLP and its designated partners will be liable to prosecution apart from unlimited penalty.

As per the provisions of sections 23 and 34 of the Act read with Limited Liability Partnership (Amendment) Rules, 2017 all the Limited Liability  Partnerships is statutorily required to file:

  • the Initial Agreement constituting the LLP in Form-3 within 30 days of its incorporation;
  • a Statement of Account & Solvency has to be filed in Form-8 within 30 days from the end of six months of the financial year; and
  • Annual Return 11 has to be filed within 60 days of closure of its financial year.

Vide the aforesaid notices, the Ministry has provided a firm reminder to comply with the reporting requirements as aforesaid failure of which may lead to prosecution of defaulting LLPs along with their designated partners,  besides being liable for unlimited penalty on per diem basis.

 

 

Ready Reckoner –SEBI’s Corporate Governance Report

IMPLEMENTATION OF IFRS-16 IN VARIOUS COUNTRIES

By Aakanksha Banthia, (finserv@vinodkothari.com)

Introduction

The International Accounting Standards Board (IASB) issued International Financial Reporting Standard 16 (IFRS 16) on ‘Leases’ in January 2016 replacing the previous accounting standard on leases, IAS 17 Leases, and related Interpretations. IFRS 16 sets out the principles for the recognition, measurement, presentation and disclosure of leases for both parties to a contract, i.e. the customer (‘lessee’) and the supplier (‘lessor’). The said standard is effective from 1st January 2019. An entity can choose to apply IFRS 16 before that date provided that it also applies IFRS 15 ‘Revenue from Contracts with Customers’. IFRS 16 was another step towards completing IASB’s project to improve the financial reporting in case of leases.

While IASB has proposed to implement IFRS 16 with effect from 1st January, 2019, several countries which uses IFRS as a benchmark for preparing standards of accounting have not yet converged the existing leasing standards with IFRS 16. In this article we intend to capture the extent of implementation of IFRS 16 in various jurisdictions.

1. New Zealand

New Zealand Equivalent to International Financial Reporting Standard 16 Leases (NZ IFRS 16) was issued on 11 February 2016 by the New Zealand Accounting Standards Board of the External Reporting Board. The standard becomes effective for annual reporting periods beginning on or after 1st January, 2019 with early adoption possibility. These are applicable in ‘For Profit Entities’ which includes both Public Entities and SME’s[1].

2. South Africa

In South Africa IFRS-16 is being adopted and the same will become effective from 1st January, 2019. Here, IFRS-16 becomes applicable to both domestic public companies as well as SME’s[2].

3. Singapore

The Accounting Standards Council (ASC) issued FRS 116 Leases as the Singapore equivalent of IFRS 16. The new Singapore leases standard will be effective from 1st January 2019 and all companies are required to get ready for the adoption and implementation of FRS 116[3]     .

4. Australia

Australian Accounting Standards Board (AASB) issued AASB 16 in February, 2016 which is equivalent to IFRS 16 with extra paragraphs on Leasing Treatment for Non Profit Entities. This Standard is applicable to annual reporting periods beginning on or after 1 January 2019[4].

5. Indonesia

The Financial Accounting Standards Board of the Indonesian Institute of Accountants (DSAK IAI) has approved the Exposure Draft (DE) PSAK 73: Leases which are the result of the adoption of IFRS 16 Leases effective as of January 1, 2019. ‘DE PSAK 73: The lease’ is proposed to become effective from January 1, 2020 with an early adoption option permitted for the entity which has also applied ‘DE PSAK 72: Revenue from Contract to Customer’[5].

6. United Kingdom

The Financial Reporting Council (FRC) of United Kingdom published a feedback statement summarising respondents’ comments to its Consultation Document on updating FRS 102 for changes in IFRS. The statement also sets out the FRC’s revised approach. The FRC agrees that further evidence-gathering and analysis needs to be undertaken before any proposals to reflect the principles of IFRS 16 in FRS 102 could be made.  Therefore, the FRC will not be issuing a triennial review phase 2 exposure draft later this year. Thus, IFRS 16 is not being implemented in UK from the effective date stated by IASB.[6]

7.  Japan

The Accounting Standards Board of Japan (ASBJ) undertakes the endorsement process on the Standards and Interpretations (collectively referred to as ‘Standards’) issued by the International Accounting Standards Board (IASB) and issues Japan’s Modified International Standards (JMIS). ASBJ undertakes to endorse amendments in IFRS in JMIS Exposure Drafts. According to Exposure Draft 5, ASBJ wants to endorse the amendments in IFRS 16 individually. However, no other Exposure Draft has been drawn to take in effect the changes implemented in IFRS-16 and no timeline has been stated as to when they will they make IFRS 16 effective.[7]

8. Canada

The Accounting Standards Board’s (AcSB) due process includes ensuring that Canadian entities’ financial reporting needs are considered by the IASB and issuing the AcSB’s own exposure draft on IFRS 16, subject to the responses to the AcSB’s exposure draft on whether the IASB’s proposals are appropriate for application in Canada, the AcSB expects that the amendments will be incorporated into Canadian GAAP in accordance with the AcSB’s strategy of adopting IFRSs for publicly accountable enterprises. Draft Exposure states the effective period of implementation will be for annual periods beginning on or after January 1, 2019. However, it is still in exposure draft and final standard has not been made effective[8].

9. United States

Financial Accounting Standard Boards (FASB) which issues US GAAP is not convergent with IFRS 16. USA equivalent Standard to IFRS 16 is Topic 842, which though amended in February 2016, does not incorporate the major changes which IFRS 16 has got in the books of the lessee. Thus, FASB is not complying with IFRS.[9]

10. India

Accounting Standard Board ICAI has issued IND AS which substantially converges with IFRS. IFRS 16 has been adopted in exposure draft of IND AS 116 Leases which has not been implemented till now. Ind AS 116 is proposed to be effective from annual periods beginning on or after 1st April, 2019[10].

Conclusion

IFRS 16 is being implemented by some developed countries, but major countries like USA is not converging with IFRS 16 and UK is also not implementing the standard on the effective date of 1st January, 2019 and it is in draft format for most of the countries mentioned above and implementation on the effective date seems difficult. Below is a table showing the effective dates of implementation of IFRS 16 for the above mentioned Jurisdictions.

Country Effective Date of Implementation of IFRS 16 Comments
New Zealand Ist January, 2019
South Africa Ist January, 2019
Singapore Ist January, 2019
Australia Ist January, 2019 AASB 16 includes paragraph on treatment for Non Profit Entities which is not mentioned in IFRS 16
Indonesia Ist January, 2020 Standard is still in exposure draft form
United Kingdom No exposure draft has been prepared by FRC
Japan No exposure draft has been prepared by ASBJ
Canada Ist January, 2019 Standard is still in exposure draft form
United States FASB is not implementing IFRS 16
India Ist January, 2019 Standard is still in exposure draft form

 

[1]https://www.xrb.govt.nz/accounting-standards/for-profit-entities/nz-ifrs-16/

[2]https://www.saica.co.za/Technical/FinancialReporting/TheNewLeasesStandard/tabid/3893/language/en-ZA/Default.aspx

http://www.ifrs.org/use-around-the-world/use-of-ifrs-standards-by-jurisdiction/south-africa/

[3] https://isca.org.sg/media/779571/isca_lease-accounting-report.pdf

[4] http://www.aasb.gov.au/admin/file/content105/c9/AASB16_02-16.pdf

 

[5]https://translate.google.co.in/translate?hl=en&sl=id&u=http://www.iaiglobal.or.id/v03/berita-kegiatan/detailberita-990%3Dpengesahan-draf-eksposur-de-psak-73-sewa&prev=search

https://assets.kpmg.com/content/dam/kpmg/id/pdf/2017/05/id-anf-may17-ed-psak73-lease.pdf

[6]https://www.frc.org.uk/getattachment/3dc51dc2-56db-4dfc-8f8c-28396ee95b8d/Feedback-consultation-triennial-review-June-2017.pdf

[7]https://www.asb.or.jp/en/ifrs/exposure_drafts/2017-1031.html

https://www.asb.or.jp/en/wp-content/uploads/exposure_20171031_01_e.pdf

[8]http://www.frascanada.ca/international-financial-reporting-standards/projects/completed/item55632.aspx

[9]http://www.fasb.org/jsp/FASB/Document_C/DocumentPage?cid=1176167901010&acceptedDisclaimer=true

http://www.fasb.org/jsp/FASB/Page/SectionPage&cid=1218220137102

 

[10] https://resource.cdn.icai.org/45885asb36137.pdf

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Transfer of shares to IEPF- Is the Wait Over ?

By Pammy Jaiswal & Megha Saraf, (corplaw@vinodkothari.com)

Introduction

It seems that the prolonged postponement for transferring shares to IEPF is over. Ministry of Corporate Affairs (“MCA”) vide its Notification dated 13th October, 2017[1] has added yet another notification on Investor Education Protection Fund (“IEPF”), to its list. The Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Second Amendment Rules, 2017 (“Second Amendment Rules”) has been made effective from 13th October, 2017. Even though the Second Amendment Rules have yet again come out with an extended time line for effecting transfer of shares, some of the operational issues are not yet clarified for effecting such transfer to IEPF.

Further, MCA has also issued a Circular dated 16th October, 2017[2] which provides for certain details on the Second Amendment Rules.

The write-up is therefore, an attempt to put before a clear snapshot of the current picture on transfer of shares to IEPF.

Main Highlights of the Second Amendment Rules

The major highlights of the Second Amendment Rules are:

  • Due Date for Transfer of shares

The Second Amendment Rules have extended the due date to transfer the shares to IEPF till 31st October, 2017 for the cases where the period of seven years has been completed or being completed during the period from 7th September, 2016 to 31st October, 2017.

Accordingly, the last date for completing all the formalities in connection with transfer shall be 30th November, 2017.

  • Transfer of shares is in the nature of transmission of shares

The Second Amendment Rules have clarified that the transfer of shares to IEPF shall take place by following the procedure for transmission of shares. Even though the documentation for such transmission has not been stated in the said rules or the circular, resolution passed by a company for transferring shares seems to a supporting document in this regard.

Further, MCA Circular dated 5th June, 2017[3], had already clarified that transfer of shares to IEPF is not in the nature of transfer but a transmission and hence, the requirement of issuing duplicate share certificate may be done away with.

  • Issuance of “New” share certificates instead of “Duplicate” share certificates

In case of physical shares, the Company shall issue “New” share certificates in Form SH-1 instead of “Duplicate” share certificates. Even though duplicate certificates need not be issued, however, the new certificates issued under the said rules will have the words “Issued in lieu of share certificate no….. for the purpose of transfer to IEPF”.

Further, the requirement entering the details of the certificate issued under the said rule in the register of renewed and duplicate share certificates maintained in Form No. SH-2 has been done away with.

  • Opening of Demat Account of IEPF Authority with Punjab National Bank

IEPF Authority has opened its Demat Account with Punjab National Bank (‘PNB’) and SBICAP Securities Limited (‘SBICAP’) for the purpose of making any transfer of shares.

  • Reporting of non-compliances to Central Government

Any non-compliance of the IEPF rules shall be reported by the IEPF Authority to the Central Government.

  • Appointment of a Nodal Officer

MCA has given a time period of 15 days to all the companies for nominating a Nodal Officer for coordinating with IEPF Authority and the details of such officer shall be displayed on the website of the company.

  • Rejection of claim in e-Form IEPF-5 in certain cases
  1. The current IEPF Rules provide that the company shall be required to provide a verification report to the Authority within a period of 15 days of receiving the claim. The Second Amendment Rules provides that in case the Authority does not receive requisite documents with a period of 90 days from the date of filing e-Form IEPF-5, the claim is liable to get rejected in the hands of the Authority.

However, before rejecting such claim, the Authority shall allow a further time of 30 days to furnish the requisite documents.

  1. In cases where the claim is incomplete or not approved and communication in this regard has been sent to such claimant and company, IEPF may reject such application if rectified documents are not filed within a period of 90 days. However, prior to such rejection, a time of further 30 days in this regard.

Highlights of the General Circular dated 16th October, 2017

  • PNB and SBICAP are the DPs with whom the IEPF Authority has opened demat account. These accounts will be fully digital and paperless;
  • Format of corporate action will be prescribed by NSDL and CDSL shortly;
  • Account maintenance charges will be minimal as per the MoU entered between the IEPF Authority and the NSDL and CDSL. Such MoU will be put up on the website of the of the IEPF Authority;
  • Cash benefit arising out of and in the form of the following, shall mandatorily be transferred to the bank account opened with PNB, Sansad Marg, New Delhi.
    • dividend from shares already transferred to IEPF;
    • proceeds realized on account of delisting of equity shares;
    • amount entitled on behalf of a shareholder in case of winding up of a company.
  • Amounts mentioned under section 125 (2) shall not be transferred to the aforesaid bank account. Only the amounts mentioned in the above point shall be transferred and nothing else.

Conclusion

Based on the above discussions, one can conclude that IEPF has tried all its might to join the dots and made the transfer of shares become a reality, although it has taken more than a year to fix the operational issues in this regard. Now, the only clarification to be looked out for is the format of corporate action, after which companies can actually complete all the formalities and finally the wait for transferring the shares to IEPF comes to an end.


[1] http://iepf.gov.in/IEPF/pdf/IEPFNotification_13102017.pdf

[2] http://www.mca.gov.in/Ministry/pdf/GC12TranferofShares_16102017.pdf

[3] http://iepf.gov.in/IEPF/pdf/IEPFGcircular07_05062017.pdf

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GST and CSR Expenditure

Vallari Dubey

finserv@vinodkothari.com

 

Introduction

Indian companies, especially public and listed companies are actively engaged in Corporate Social Responsibility (“CSR”) activities. Moreover, since the introduction of Companies Act, 2013, the law has mandated compulsory CSR expenditure for a specific class of companies. In the recent months, with the advent of GST, life of corporates has experienced all sorts of challenges in terms of operational flexibility and cost. One such aspect that has not been shed much light on, is the impact of GST on CSR activities and expenditure thereon by the companies. To understand this better, we take a scenario of donating water purifiers as part of a Company’s CSR policy. In this article, we try to detail out the analysis of such scenario by studying the provisions of GST and Companies Act, 2013. Read more