Definition of Small Company – Evolution over time

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New avatar of DPT-3 requires aging details for exempted deposits

– Also burdened with irrelevant deposit related details

– Payal Agarwal, Senior Executive (payal@vinodkothari.com)

The format of the “return on deposits” and on “exempted deposits”, that is, form DPT-3  has been amended pursuant to  the notification of the Companies (Acceptance of Deposit) Amendment Rules, 2022 (“Amendment Rules”) on 29th August, 2022. While the same has been made applicable immediately, the revised format will be actually relevant for the filing of form DPT-3 for FY 2022-23, since the due date for filing DPT-3 for FY 2021-22 has already expired on 30th June, 2022. It is interesting to note that while most of the changes pertain to the “return of deposits”, the same does not have any practical significance in India. However, there is specifically one addition w.r.t. the money received by a company, but not considered as deposit, i.e., exempted deposits. 

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Applicability of Provisions of the Companies Act on LLPs & Reporting requirements: Recent changes

– Pammy Jaiswal, Partner and Neha Malu, Executive | corplaw@vinodkothari.com

Investments from neighbouring countries under stringent scan of GoI

– Prapti Kanakia | corplaw@vinodkothari.com

Recently, the Ministry of Corporate Affairs (MCA) has implemented a series of amendments which relates to investments in India by foreign nationals or entities incorporated in a country which shares a land border with India. These amendments are in tandem with the amendment made by the Department for Promotion of Industry and Internal Trade (DPIIT) in FDI Policy and by the Ministry of Finance, Department of Economic Affairs, in FEM (Non Debt Instruments) Rules, 2019 (NDI Rules).

DPIIT amended the FDI policy vide press note no. 3 dated 17 April, 2020 to curb the hostile takeovers of Indian Companies by nationals/entities of neighbouring countries.  Erstwhile, only a citizen of Bangladesh & Pakistan or an entity incorporated in Bangladesh & Pakistan were required to take government approval for investing in India. Pursuant to amendment, any entity incorporated in a country, citizen or beneficial owner of a country, which shares land border with India, needs to obtain government approval for investing in the equity instrument of the Indian Company. Thus, nationals/entities from Pakistan, Afghanistan, China, Bhutan, Nepal, Myanmar and Bangladesh can invest in India only under approval route.

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Foreign nationals to comply with stringent MCA norms

– Team Corplaw | corplaw@vinodkothari.com

Our write-ups on corporate laws: https://vinodkothari.com/category/corporate-laws/

Utilisation of accumulated surplus by section 8 companies

-Can surrogate means be used to relegate funds or benefits to shareholders

Pammy Jaiswal | Partner | Vinod Kothari and Company

Shraddha Shivani | Executive | Vinod Kothari and Company

corplaw@vinodkothari.com

Background

Section 8 of the Companies Act, 2013 (‘CA’) provides for the formation of companies with specific objects. Since the section revolves around incorporation of companies with charitable or some other specified welfare objectives, it gives an impression that these companies do not work to earn financial gains for their shareholders. This impression becomes evident since Section 8 companies are commonly referred to as ‘not-for-profit’ companies which further substantiates this understanding and adds to the confusion. They may make profits, as indeed, they very often do; however, the profit necessarily gets redeployed to carry the very same objects for which the company was formed, and cannot be relegated to the shareholders.

 In fact, earning profits is not just permitted but is also essential for their continued existence and organic growth of its affairs. Most such companies do not borrow; hence, they carry their activities either through corpus contributions or through retained profits. Thus, the restrictions under CA are not on earning profits but on the distribution of the same to its shareholders. 

The most common way for a company to distribute profits to its shareholders is by way of payment of dividend. This is explicitly barred in case of a Section 8 company. Having said that, these companies may also come across a situation where they do not foresee any immediate application of their accumulated profits and therefore, may look out for ways to utilise it for some other purpose. The management running these companies, potentially representing shareholders, may not be necessarily driven by avarice when they intend to use the funds other than for the purpose for which the company was formed.

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Board Observer: A silent observer or a game changer?

-Pammy Jaiswal and Neha Malu | corplaw@vinodkothari.com

Background

Getting an investor for one’s business is a crucial stage for any company and so no company would want to lose the opportunity to crack a deal with the investor even if it has to give away certain rights and powers to the said investor. Looking at the Indian statistics, it has been observed that Private equity (PE) and venture capital (VC) investments have been on a growing trend and they stood at US$ 4.4 billion across 99 deals in December 2021. As the investors decide to put in funds, they look out for having such rights so that they are updated about every major decision being taken in the investee. Majority of the decisions affecting the day-to-day operations are usually taken at the board level. Therefore, it has been observed that generally to strengthen the investor’s confidence in the operations and decision making, a “Board Observer” is appointed by such investor pursuant to an agreement who carries certain rights and obligations.

The Board Observer is a representative of the investor who is expected to observe the board proceedings without being formally appointed as a director and has no voting rights in the board deliberations. Internationally, the said concept is much more popular and has also been a point of litigation to decide on the rights and obligations of such Board Observers.

In this write-up, we have tried to deal with the important aspects relating to the concept of Board Observer so as to determine whether he is just a “silent observer” on the board of the investee company or a “game changer” in the real sense.

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MCA amends format of Forms SH-4 and PAS-4 to insert declaration on compliance with Government approval requirement under FEMA

Whether a private company can accept deposits from HUF?

Vinita Nair | corplaw@vinodkothari.com

Provisions of Law

According to Section 2(31)  of the Companies Act, 2013 ‘Deposit’ includes any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India. The exclusions are cited in Rule 2 (1) (c) of Companies (Acceptance of Deposits) Rules, 2014 which are applicable to public and private companies.

Rule 2 (1) (c) (viii) of Deposit rules excludes amounts received from a person who, at the time of the receipt of the amount, was a director of the company or a relative of the director of the private company, provided that the person declares that the amount is his own fund and not borrowed. The private company is required to disclose the details of money so accepted in the Board’s report.

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