By Team Vinod Kothari & Company | December 21, 2017 (firstname.lastname@example.org)
MCA vide its Notification dated September 20, 2017 notified the Companies (Restriction on Number of Layers) Rules, 2017, imposing a limit of two layers of subsidiaries which is effective from September 20, 2017. In this regard, the following FAQs discusses various questions relating to the provisions dealing with layers of subsidiaries:
- Which all sections deal with restriction on layers of subsidiaries in Companies Act, 2013 (‘CA, 2013’)?
The following are the two sections which deals with restriction on layers of companies:
- Proviso to Section 2 (87) [definition of subsidiary company or subsidiary]: As per the proviso, such class or classes of holding companies (as may be prescribed) shall not have layers of subsidiaries beyond such numbers as may be prescribed.
- Section 186 (1) [Loan and investment by company]: As per this Section, a company shall unless otherwise prescribed, make investment through not more than two layers of investment companies.
- What is meant by ‘layer’ under Section 2 (87) of the CA, 2013?
The word “layer”, referred to in Section 2(87), means subsidiary or subsidiaries of the holding company. The same word has also been used in Section 186 (1). Given the intent of the section, ‘layer’ refers to vertical limit.
- What is the reason behind limiting the number of layers?
The Joint Committee on Stock Market Scam provided that on account of layers it became difficult to link the source of fund with the actual users to which these fund were put.
The multiple layers of companies are used by the companies for syphoning of funds and for money laundering. Therefore, in order to curb such practices by the companies, the government has provided restriction on floating layers of companies.
- Is there any restriction on horizontal propagation?
The restriction in layers of subsidiaries is for vertical propagations and not for horizontal propagations. A company may have as many investments horizontally. The same can be illustrated with the following diagram:
Figure 1: Horizontal propagation of Company A
- Are there any exceptions to proviso of section 2 (87)?
In addition to the exceptions given in section 186 (1), the Companies (Restriction on number of layers) Rules, 2017 (‘Rules, 2017’) also provides exception to the following companies:
- a banking company;
- a non-banking financial company as defined in the Reserve Bank of India Act, 1934 (2 of 1934) which is registered with the Reserve Bank of India and considered as systemically important non-banking financial company by the Reserve Bank of India; (Nothing specified in relation to housing finance companies/ NBFC CICs).
- an insurance company being a company which carries on the business of insurance in accordance with provisions of Insurance Act, 1938 and Insurance Regulatory Development Authority Act, 1999;
- a Government company referred to in clause (45) of section 2 of the Act.
- Are the provisions applicable on subsidiaries incorporated outside India?
First proviso to Rule 2 of the Rules provides exemption to a Company from acquiring a company incorporated in a country outside India with subsidiaries beyond two layers as per the laws of such country.
The exemption in case of acquiring of subsidiaries incorporated outside India should have been extended equally to subsidiaries freshly incorporated outside India. There shouldn’t have been a distinction in acquisition and incorporation of subsidiary outside India. Either a company may acquire a subsidiary outside India which in turn has several layers of downstream investment or it may float a subsidiary outside India which will keep on further incorporating or acquiring subsidiaries outside India.
It will be incorrect to say that Company incorporating subsidiaries outside India will have to adhere to the restriction of layers even if the same is permitted as per law of that country.
- Are the wholly owned subsidiaries even counted in the limits of layer?
The second proviso to Rule 2 of the Rules provides:
“Provided further that for computing the number of layers under this rule, one layer which consists of one or more wholly owned subsidiary or subsidiaries shall not be taken into account.”
As per the above-mentioned provision, a layer which consists of one or more wholly owned subsidiary or subsidiaries shall not be taken into account while computing the number of layers i.e., one layer which is represented by a wholly owned subsidiary shall not be taken into account.
‘Layer’ cannot mean ‘Layers’ based on interpretation that singular includes plural. Therefore, it should not be read as any layer represented by a wholly owned subsidiary. The whole purpose will get defeated if companies are allowed to incorporate layers of wholly owned subsidiaries without any restriction. Therefore, the exemption is only in a layer which represents a wholly owned subsidiary. However, it is pertinent to note that the layer of wholly owned subsidiary has to reflect in the first layer and not thereafter in order to avail the exemption.
The permitted layers can be illustrated with the following diagram:
Figure 2: Permitted layers of subsidiaries
- Whether the Rules are prospective or retrospective?
As per Rule, after the date of commencement of the Rules, the holding companies, other than the exempted companies, which has number of layers of subsidiaries in excess of the limit of layers:
- shall not have any additional layer of subsidiaries over and above the layers existing on such date; and
- shall not, in case one or more layers are reduced by it subsequent to the commencement of these Rules, have the number of layers beyond the number of layers it has after such reduction or maximum layers allowed in sub-rule (1), whichever is more.
Therefore, companies will have to comply with these conditions prospectively.
- Whether acquisition, as mentioned in the Rules, covers intra group transactions?
Yes, acquisition here refers to any acquisition which has the result of making the entity being acquired, the subsidiary of the acquiring entity. Accordingly, intra group transactions as well as external transactions shall be covered.
- Whether it is possible to acquire a company incorporated outside India which has no subsidiary? Or has subsidiaries within two layers even if the laws of the host country permit beyond 2 layers?
|After the date of commencement of this rule, every holding company, other than a holding company belonging to a class specified in sub-rule
(2), shall have not more than two layers of subsidiaries:
|On and from the date of commencement of these rules, no company, other than a company belonging to a class specified in sub-rule (2), shall have more than two layers of subsidiaries:|
|Provided that the provisions of this sub-rule shall not affect a holding company from acquiring a subsidiary incorporated in a country outside India if such subsidiary has subsidiaries as per the laws of such country.||Provided that the provisions of this sub-rule shall not affect a company from acquiring a company incorporated outside India with subsidiaries beyond two layers as per the laws of such country:|
By virtue of Rule 2(1) a company cannot have more than two layers of subsidiaries unless the company is covered in exemption list provided in Rule 2 (2).
The carve-out given in the proviso under draft rules explains that the overseas subsidiary being acquired may have any number of subsidiaries permitted as per law of host country. The final rules amended the wording to clarify that even if such subsidiaries have more than two layers of subsidiaries as per laws of such country, the holding company can acquire such subsidiary. The intent is to make it abundantly clear that if the acquiring entity is likely to breach the limit of layer of subsidiary on account of acquisition of company incorporated outside India, the rule shall not apply. There is no precondition that the company being acquired abroad should have two layers of subsidiaries.
- Is there any filing requirement for companies which has number of layers of subsidiaries in excess of the limit?
Every company, other than the companies exempted under the section, existing on or before the commencement of these rules, which has number of layers of subsidiaries in excess of the layers specified, shall file return in Form CRL-1 with the Registrar within a period of 150 days from the date of publication of these Rules in Official Gazette i.e., September 20, 2017. The form requires specifying layer number of the subsidiary and percentage of shares held by holding company. The format as prescribed in the Rules requires certifying the form, therefore, the e-form is much awaited. However, in the absence of the e-form, CRL-1 should be filed in e-form GNL-2 before the expiry of 150 days from the date of publication of these Rules.
- Is there any penal provision for contravention of these Rules?
If any company contravenes any provision of these Rules then the company and every officer of the company who is in default shall be punishable with fine which may extend to ten thousand rupees and where the contravention is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which such contravention continues.
- What is meant by ‘layers of investment companies’ under Section 186 (1) of the CA, 2013?
Section 186 (1) of the CA, 2013 puts down restriction on companies to make investments through more than two layers of investment companies. In this case, it refers to vertical layers of investments companies.
The expression ‘investment company’ means a company whose principal business is the acquisition of shares, debentures or other securities.
There is no exemption to any company from adhering to the requirement of Section 186 (1).
- Are there any exceptions to the provisions of section 186(1)?
Yes. The proviso exempts the applicability of this section to:
- Acquiring of any company incorporated outside India if that company has investment subsidiaries beyond two layers as per the laws of that country.
- Subsidiary company from having an investment subsidiary to fulfill any regulatory requirement.
- Section 2(87) postulates that a relationship of subsidiary can be established if one controls the Board of the other company. Whether such category of subsidiary falls within the purview of Section 186(1)?
Section 186(1) of CA, 2013 nowhere talks about investment through subsidiary. Hence for the purpose of section 186(1) control over the board of company will not be reason enough for attracting the provision of section 186(1).
If such subsidiaries are investment companies, section 186(1) shall be attracted.
- What is the difference between the provisions of proviso to Section 2 (87) and 186(1)?
A tabular presentation of the difference between the proviso to section 2(87) and section 186(1) of the CA, 2013 is presented below:
|Criteria||Proviso to Section 2(87)||Section 186(1)|
|Applicability||On all companies [Except few exceptions mentioned in above question]||On all companies [Except few exceptions mentioned in question no. 6]|
|Restriction on||Holding company having more than 2 layers of subsidiaries||Investing through more than 2 layers of investment subsidiaries|
|Entity at the end of the loop of the layer||Can be a body corporate||Has to be a company|
|Investment through||Can be through bodies corporate||Has to be necessarily through investment companies|
|Onus of complying with the section||Holding company||Holding company|
|Criteria of establishing relationship||Subsidiary can be either by way of control of composition of board of directors or by way of investment in total share capital of company||Holding company has to invest through investment subsidiaries. Investment can be in any security.|
Table 1: Difference between the sections 2(87) and 186(1) of the CA, 2013
- Understanding layers with the help of few illustrations:
Figure 3: Illustration 1
The above illustration shows the permitted structure.
Figure 4: Illustration 2
In the above illustration, Company B being a WOS will be exempted and hence, the permitted layer will be till Company B2.
However, coming to the other vertical investment – Company A is not the ultimate holding of Company C1. Therefore, For Company A, the permitted layer will be till Company C1 (unless falling under the exemption) and for Company C, the permitted layer will be till Company C3.
Figure 5: Illustration 3
In this illustration, C2 is not permitted because C1 is not a subsidiary of an NBFC.
Figure 6: Illustration 4
a. Can Subsidiary 4 be shifted from WOS 1 to WOS 2? This will not result in any change in the structure or total number of subsidiaries/ step-down subsidiaries; but simply change the immediate holding entity.
Shifting of subsidiary 4 will be regarded as acquisition within the group. Where the subsidiary is a company incorporated outside India, the restriction of breaching the limit of layer of subsidiary shall not apply.
b. Will the aforesaid exemption hold good even in case of acquiring a company incorporated outside India having an Indian company as its subsidiary at some level/ layer?
In that case, the company will be making an Indian company its subsidiary pursuant to said acquisition. The intent is to exempt from the requirement of acquiring overseas entity which has subsidiaries as per laws of host country. If the Indian company intended to acquire another Indian company in order to make such Indian company its subsidiary, the same would not have been permitted in view of restriction on layers of subsidiary. What cannot be done directly should not be done indirectly as well. Therefore, the aforesaid exemption shall not hold good.