RBI’s endeavour to tackle stressed assets continues

By Abhirup Ghosh, (abhirup@vinodkothari.com),(finserv@vinodkothari.com)

The Reserve Bank of India (RBI), on 12th February, 2018[1], notified the “Resolution of Stressed Assets – Revised Framework” (Revised Framework). This aims to replace the four year old, “Framework for Revitalised Distressed Assets in the Economy”[2] (Framework) read with association circulars, guidelines and directions issued from time to time. To be precise the following instructions/ mechanisms have been withdrawn to make way for this Revised Framework: Read more

Help in the hour of need: RBI relaxes asset classification norms for MSME accounts

By Abhirup Ghosh(finserv@vinodkothari.com)

The Reserve Bank of India (RBI), on 7th February, 2018[1], has come out with a notification to grant relaxation to banks and NBFCs with respect to asset classification in case of MSME accounts. The notification has been released on the pretext that the due to the implementation of Goods and Services Tax, the cashflows of small enterprises have been impacted severely, thereby hampering their ability to honour their financial obligations.

In this write up we have tried to cover the impact of the notification.

Read more

Cracking the ‘Bitcoin’ nut this Budget Session

Vallari Dubey & Saloni Mathur

finserv@vinodkothari.com
corplaw@vinodkothari.com

Introduction

In the words of Mr. Nassim Nicolas Talib, “Bitcoin is the beginning of something great, a currency without a government, something necessary and imperative.” Read more

Fresh set of conditions for strategic investments in REITs and InvITs

By Saloni Mathur , (finserv@vinodkothari.com)

The SEBI vide its circular dated 18th January 2018[1](‘Circular’) issued guidelines on participation by the strategic investors in InVIT’s and REIT’s. These guidelines have been issued in pursuance to the powers conferred on SEBI as per the provisions of the section 11(1) of the Securities and Exchange Board of India Act, 1992(‘SEBI Act’) read with regulation 33 of the Securities and Exchange Board of India (Real Estate Investment trusts) and (Infrastructure Investment trusts) regulations, 2014.[2]

This circular seeks to give clarifications on the participation by the ‘strategic investors’ in the public issue of the REITs and the InVITs. The board through the implementation of the ‘circular’ seeks to regulate and promote the interests of the ‘strategic investors’.

Strategic investor’ has been defined in Regulation 2 sub regulation 1 clause (zza) which means:

  1. an infrastructure finance company registered with Reserve Bank of India as a Non-Banking Financial Company;
  2. a Scheduled Commercial Bank;
  3. an international multilateral financial institution;
  4. a systemically important Non-Banking Financial Companies registered with Reserve Bank of India;
  5. a foreign portfolio investors, who invest either jointly or severallynot less than five per cent. of the total offer size of the InvIT or such amount as may be specified by the Board from time to time subject  to  the  compliance  with  the applicable  provisions, if any, of the Foreign Exchange Management Act, 1999 and the  rules or regulations or guidelines made thereunder.

Here in this write up we intend to cover the contents of this circular at length.

  • Holding requirements:

The circular states that the strategic investor(s) shall, either jointly or severally, invest not less than 5% and not more than 25% of the total offer size.

The principal regulations earlier provided for only the minimum holding requirements but this circular has gone one step ahead and prescribed the upper limit as well. The idea is to encourage retail investments in the infrastructure sector.

Therefore, the situation with respect to holding of units stands as:

  1. Holding by strategic investors – Minimum 5%, maximum 25%.
  2. Holding by public, other than strategic investors and sponsors – Minimum 25%
  3. Holding by sponsor – Minimum 5%, maximum 70%
  • Issue price of the units and utilisation of funds:

In order to protect the interest of the investors, a pricing cap has been introduced. As per the circular, the price at which units are offered to the strategic investors must not be less than the price determined in the public issue.

If there is a situation where the price at which the units are subscribed turns out to be lower than the price discovered in the public issue, the investor shall have to chip in further funds within 2 working days from the date of public issue. However, if the price determined in the public issue turns out to be lower than the price at which the units are offered to the investors, the investors shall not be able to claim back the excess amount paid.

This can be illustrated with the help of the following:

Situation A
Price at which units are issued to investors – Rs. 140
Price discovered in public issue – Rs. 150
Excess amount to be brought in – Rs. 10
 
Situation B
Price at which units are issued to investors – Rs. 150
Price discovered in public issue – Rs. 140
Amount that can be claimed as refund – Nil 

Further, this circular provides that it must be ensured that the subscription amount is kept in the separate account until the public issue is opened.

  • Lock-in period

The units subscribed by strategic investors, pursuant to the unit subscription agreement, will be locked-in for a period of 180 days from the date of listing in the public issue. The intention is to avoid early exit from investment by the strategic investors, which can turnout be prejudicial to the interest of the public unit-holders.

Conclusion

It is well acknowledged that considering the huge demand in the infrastructure sector in India, REITs and InvITs have superb potential. However, since their introduction in 2014, none of them have been able to live up to the expectations. In funds like REITs and InvITs, which are new structures in the capital market, strategic investments play a very important role to gain trust of the retail investors. This move of SEBI aims to make these structures popular in India and is largely in the line with government’s focus on infrastructural development.


[1] https://www.sebi.gov.in/legal/circulars/jan-2018/participation-by-strategic-investor-s-in-invits-and-reits_37454.html

[2] https://www.sebi.gov.in/sebi_data/attachdocs/1411722678653.pdf

 

GST Council brings down the rate of GST on used cars, besides others

By Abhirup Ghosh, (abhirup@vinodkothari.com, finserv@vinodkothari.com)

The GST Council met for the 25th time on 18th January, 2018 to modify the GST law in order to tackle the difficulties being faced in the market. The Council recommended several changes to the law among and one of the change that has can cause a significant impact on the vehicle industry is reduction of rate of tax on sale or purchase of used motor vehicles.

The council suggested the following change may be incorporated in the rate schedule:

Sl No. Chapter/Heading/Sub-heading/Tariff item Description Rate of GST
1 87 Old and used motor vehicles [medium and large cars and SUVs] on the margin of the supplier, subject to the condition that no input tax credit of central excise duty/value added tax or GST paid on such vehicles has been availed by him. 18%
2 8702 Buses, for use in public transport, which exclusively run on bio-fuels. 18%
3 87 All types of old and used motors vehicles [other than medium and large cars and SUVs] on the margin of the supplier of subject to the conditions that no input tax credit of central excise duty /value added tax or GST paid on such vehicles has been availed by him. 12%

The language suggests that the rate of tax on the margin of the supplier will stand reduced from 28% to:

  1. 18% in case of old and used medium and large cars and SUVs
  2. 12% in case of other motor vehicles

provided the supplier has not claimed input of taxes paid on such vehicles. Therefore, in case the supplier avails the input tax credit, this benefit shall not be available and the supplier will have to charge GST at the rate of the 28% on the sale.

There has been a consequent modification in the rate of compensation cess as well. Currently, compensation cess is charged on the margin earned by the supplier at the rate applicable on the type of vehicle being sold. The Council has proposed to reduce the rate of compensation cess to nil on old and used motor vehicles.

Here it is important to note that for the purpose of GST law, the term “motor vehicles” include motor cycles. Therefore, this concession will be available on sale of used bikes as well.

This note is however, based on the current state of the proposed law and we will have to wait till 25th January to see if this change sustains or not.

The detailed recommendations can be viewed here:

  1. Recommendations relating to change in the GST rate on certain goods –

http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1517141

  1. Recommendations relating to change in the GST rate on certain services –

http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1517139

  1. Policy changes recommended by GST Council –

http://pib.nic.in/newsite/PrintRelease.aspx?relid=175727

An Insight on Direct Selling Guidelines, 2016 Pyramid Schemes vis-a-vis MLM

By Saloni Mathur (finserv@vinodkothari.com)

Introduction

There has been a shift in the paradigm of the performance of the direct selling agents. The role and responsibilities of the direct selling agents have witnessed a revolution, where they are required to comply with certain codes as prescribed by the government from time to time, and follow certain practises while discharging their responsibilities. The RBI’s master directions[1]on the outsourcing norms have put stringent compliances on the service providers while discharging their functions, and increased responsibility and monitoring on the part of the non-banking financial companies. The question that arises here is whether those non- banking companies complying with the outsourcing guidelines, fall under the ambit of the direct selling guidelines also and if they, then what is the nature of the applicability of these direct selling guidelines on them.

According to a report on the Indian direct selling industry published by FICCI and KPMG, the direct selling market in India has grown at a CAGR of 16 per cent over the past five years to reach INR75 billion today.[2] Due to this unprecedented rise in direct selling industry and the growth of a large distribution base, major scams have been witnessed over the years in reputed companies owing to the nature of marketing methods adopted by them.

The Government of India, Ministry of consumer affairs, food and public distribution, department of consumer affairs, vide its notification number F.No.21/18/2014-IT (vol II) dated 09th September, 2016 modelled certain guidelines on the direct selling regulating the business of direct selling and the multi-level marketing.

This article is an attempt to envisage the rationale behind these guidelines and the applicability of these guidelines on the direct selling agents and the various compliances that are required to be made by the direct selling entities and the direct sellers.[3] Further this article also takes into account the concept of Multi-level marketing and the pyramid schemes with reference to the applicability on the direct selling agents.

Rationale behind the launch of the Scheme

The direct selling industry has brought about with itself a huge reservoir of marketing, selling and distribution base for the goods and services, which has given rise to various fraudulent practises in the marketing and the distribution system. Instances can be drawn from the famous Amway and the Qnet case where entire money in the chain was earned only through the recruitment of new members and adding more participants to the channels of distribution, rather than the actual sale of the goods and services. Though the Amway was convicted of “illegal pyramid scheme” it could finally escape all criticism under the umbrella of the “the Amway safeguard rules”. However, the case has left strong marks of scepticism in the validity of the direct selling business.

The companies which were engaged in multi-level marketing were carrying out various frauds through the recruitment of large number of participants in the system. Thus, a need was felt where a robust system of direct selling guidelines was required to protect the interest of the consumers.

Defining the Pyramid and the MLM schemes

Defining the Pyramid Scheme

“Pyramid Scheme” as defined in the guidelines mean a multi layered network of subscribers to a scheme formed by subscribers enrolling one or more subscribers in order to receive any benefit, directly or indirectly, as a result of enrolment, action or performance of additional subscribers to the scheme. The subscribers enrolling further subscriber(s) occupy higher position and the enrolled subscriber(s) lower position, thus, with successive enrolments, they form multi-layered network of subscribers.

The key feature of the pyramid is that as the entrants in the last layer of the pyramid continue to get more and more participants who pay money. By way of this a hierarchy is created and the sponsor who holds the top most position is the recipient of the highest commission. The Amway case is the perfect example of the “illegal Pyramid scheme” where the purpose of the scheme was to make money through recruiting more distributors at various levels.

The pyramid scheme is illegal in India under the Prize chits and Money Circulation Schemes (banning) act, 1978. Hence there is a non-applicability of this scheme.

Following are some of the key constituents of the Pyramid Schemes

High registration fees

The basic quality of a pyramid scheme is that there is a high registration and entry fees upfront that the participants in the scheme have to pay. The entry fee is so high that the participants holding top position get a very high commission fees.

Goods sold at a price higher than the fair value and a higher quantity that is generally sold in the market

The goods and services under the pyramid schemes are not sold at the fair value. Fair value means the price at which the goods and services are generally available in the market. If the goods are sold to the consumers at a price higher than what is a general fair market price, it is a pyramid scheme.  Similarly, if the goods are sold at a quantity higher than what is expected to be consumed by, or sold, resold to consumers, it will constitute to be a pyramid scheme. The price of the goods and services have a higher component of commission cost rather than the actual product price. The price of the product generally has 70% commission cost and remaining 30% cost of the product.

The level of unsold inventory

Under the pyramid schemes the unsold inventories of the participants is not generally brought back by the distributor.

Emphasis on the recruitment of more members

There is a greater emphasis on the recruitment of more members rather than promoting and distributing the product. The purpose here is to fetch higher commissions for the sponsors at the top most level.

No material contract between the direct selling entity and the direct seller

There is no material agreement entered between the direct selling entity and the direct seller on buy back, refund, repurchase policy of the unsold inventory.

No cooling off period

There is no cooling off period given to the direct sellers up to which they can cancel the contract.

Defining the Multi-level Marketing (MLM) scheme

In an MLM structure, multi-level marketing or the network marketing are used to sell the products directly to the consumers in which the salesmen are compensated not only for the work done by them but also for the sales of the people who have joined the company through them.[4]

The main purpose of the MLM scheme is to ensure wide distribution of the products or services and the intent is to sell the product through a network of wide range of distributors. Thus, it is just a marketing strategy unlike a fraudulent pyramid scheme where there are tangible distribution of the goods and services.

Comparing the MLM and the ‘Pyramid’

The big difference between multilevel marketing and a pyramid scheme is in the way the business operates. The entire purpose of a pyramid scheme is to get distributors’ money and then use it to recruit other distributors. The entire purpose of MLM is to move the product and ultimately achieve the sales of the product. The theory behind MLM is that the larger the network of distributors in a chain, the more products the business will be able to sell. Therefore, whether it is a pyramid scheme or an MLM approach depends upon the legality of the schemes and the purpose behind their operation as the Pyramid scheme is illegal.

Defining key concepts under the ‘direct selling guidelines 2016’

‘Direct selling’ has been clearly defined in regulation 6 which means marketing, distribution and the sale of the goods or providing of any services as a part of network of direct selling other than under a pyramid scheme.

Thus, what constitutes to be a direct selling is based on four conditions i.e direct selling has to be marketing, distribution, and selling of the goods and services as a part of network of direct selling. Thus all the four conditions need to be qualified simultaneously for determining direct selling. Thus, a direct selling agent, if restricts its services only to marketing of products and not to selling and distribution would not be required to comply with these guidelines.

Similarly, the network is defined as an arrangement of intersecting horizontal and vertical lines. To be a network it is therefore necessary that there is a hierarchy of a direct selling agents such that there is a superior subordinate relationship at all levels of distribution

The ‘network of direct selling’ means a network of direct sellers at different levels of distribution who may recruit or sponsor further levels of the direct sellers, who they then support. “Network of direct selling” shall mean any system of distribution or marketing adopted by a direct selling entity to undertake direct selling business and shall include the multi-level marketing method of distribution.

This network of direct sellers also includes the multi-level marketing method of distribution.

Thus, network of direct selling shall be hierarchical. Single level of distribution would not constitute any network.

Comparing the network, the Pyramid and the MLM

The network may be at a horizontal level also. For example, if there is one direct selling entity selling goods and services through a single level of the direct sellers, all at the same level shall constitute a network. However, Pyramid necessarily has to be a vertical hierarchy such that there should a superior subordinate relationship. Multi-level marketing shall have to a be a legal marketing strategy and not a fraudulent scheme.

Understanding the applicability of the scheme

The applicability of the above guidelines on the direct and selling agents have to be checked from the following facts:

This scheme is applicable on the following companies.

  1. Companies engaged in marketing as well as selling and distributing the products simultaneously under the network of direct selling.
  2. All the multi-level marketing schemes such that there are different levels of distribution and the participants are at different distribution levels. Here the participants at the same level of distribution shall not be required to comply with the scheme.
  3. Company carrying its operations through a hierarchical multi-level system.
  4. Companies appointing the direct selling agents in such a way, such that they are sponsoring or carrying out recruitment further so that a large network of distribution is created
  5. Companies that have relevant clauses in the outsourcing agreement and which specifically reflect the outsourcing or subcontracting of the service to the third parties.
  6. Companies requiring direct selling agents to pay high membership fees and greater entry costs.

Non-Applicability of the guidelines to Pyramid schemes and companies having only one level of distribution

The guidelines shall not be applicable to the pyramid scheme. This is because these schemes are generally money-making schemes and not any legal marketing strategy. This comes from the fact that pyramid schemes are generally created not to market the products, but to create a distributor base for earning large money through promotion. Thus, the direct selling guidelines take a legal view and apply to only legal MLM schemes and direct selling.

Further the companies having only a horizontal distribution base such that they are not recruiting or sponsoring further levels in the chain shall be kept out of the purview of these guidelines.

Quick compliance checklist for direct selling guidelines 2016

  1. All direct selling companies in India shall submit an undertaking to the department of the consumer affairs within 90 days from 12th September 2016.
  2. Direct seller cannot receive remuneration or incentive for the recruitment/enrolment of the new participants.
  3. Direct sellers can only receive remuneration derived from the sale of goods or services
  4. Direct seller shall carry its identity card and not visit the customers premises without prior intimation/approval.
  5. Direct selling company cannot force its direct sellers to purchase more goods or service than they can expect to consume or sell.
  6. Direct selling company cannot demand any entry fee/registration fee.
  7. Company must provide every participant written contracts describing the material terms (buy back, re-purchase policy, cooling period, warranty and refund policy.
  8. Mandatory orientation session with accurate information for the newly recruited direct selling agents
  9. There shall be prohibition of the pyramid scheme and the money circulation scheme.
  10. There shall be a monitoring authority to deal with the issues related to the direct selling.

Conclusion

There is no scepticism regarding the benefits of the direct selling guidelines on the interest of the consumers in prevention of the frauds against them, however comprehending the applicability of these directions is a hard nut to crack for various entities who are in a dilemma to comply with these guidelines. The guidelines do not specifically state the extent of the applicability; however, they do give certain apparent indications to the entities to whom these guidelines shall be applicable.

Thus, any company desirous of increasing their distribution base for selling wide range of products or services and who intend to do it by creating a hierarchical distribution that requires further outsourcing and recruitment shall be required to comply with the guidelines. Further the outsourcing agreement between the DSA and the service provider shall clearly state the provisions regarding contracting and the sub-contracting, subsequent to which only a network of distributors could be created.


[1] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NT87_091117658624E4F2D041A699F73068D55BF6C5.PDF

[2] https://www.souravghosh.com/blog/direct-selling-guidelines-2016/

[3] http://consumeraffairs.nic.in/writereaddata/Direct%20Selling%20guidelines.pdf

[4] https://www.icsi.edu/WebModules/LinksOfWeeks/JuneCS_2014.pdf