-Notifies amendments to facilitate implementation of the SBO Rules
CS Nikita Snehil (email@example.com)
Amendment to Section 89 and 90 is one of the key amendments brought in by the Companies (Amendment) Act, 2017 (‘Amendment Act’). While, the Amendment Act has been enforced in phases, stakeholders were given the option to provide the public comments on the draft rules in relation to Significant Beneficial Ownership (SBO), which was issued by MCA on Feb 2, 2018. Thereafter, on June 14, 2018, MCA vide its Notification, has enforced the provisions of amended Section 90 of the Companies Act, 2013 and also issued the Companies (Beneficial Interest and Significant Beneficial Interest) Rules, 2018 (‘SBO Rules’) in relation to the determination of SBO.
Thereafter, considering various practical difficulties in implementing the provisions of the SBO Rules, MCA on February 8, 2018 has notified the revised rules in order to facilitate better implementation of the provisions.
The following article explains the revised requirement of the Rules, responsibilities of the companies and the immediate actionables to be taken in order to comply with the revised requirements.
By Munmi Phukon, (firstname.lastname@example.org)
The Ministry on 22nd January, 2019, issued a Notification prescribing certain amendments in the Companies (Acceptance of Deposits) Rules, 2014 which have been made effective from the same date. Undoubtedly, the amendments are of much significance. However, what remained unrevealed is, the intent.
What do these amendments talk about?
The amendments are requiring reporting of the following by the companies with the Registrar-
1. A one- time return which will give the details of the outstanding receipt of money or loan which have not been considered as deposits as per Rule 2(1)(c) of the Rules. For this, the period of such receipt of money or loan has to be considered from 1st April, 2014 till the date of publication of the Notification in the Gazette i.e. 22nd January, 2019 and which are outstanding as on the said date. The reporting has to be made within 90 days of the said publication.
2. A periodic return which will give the details of particulars of transactions which are not considered as deposits as per Rule 2(1)(c) of the Rules within 30th June of every year containing details as on 31st March.
Which all companies will get hit by the amendments?
Seemingly, the amendments will hit almost all companies irrespective of the status thereof i.e. public or private, as it is almost impossible to not having any receipt of money which will not fall under the list of Rule 2(1)(c). However, the same exclude a Government company from the reporting requirement.
In regard to banking companies and NBFCs, these companies are not required to observe the compliance of the provisions related to acceptance of deposits in terms of the proviso to Section 73(1) of CA, 13. Furthermore, apart from these two categories, Rule 1(3) of the aforesaid Rules exempts an HFC from the applicability of the Rules. Though the amendments prescribe reporting requirements for every company other than a Government company, since the parent provisions are not applicable to these companies, the amendments shall also not apply to them.
The Central Government is empowered to specify other companies to whom the provisions of Chapter V shall not apply though no specification in this regard has been brought in till date.
The parent provisions
Section 2(31) of CA, 13 defines the term ‘deposit’ in an inclusive manner which provides that any receipt of money by way of deposit or loan by a company shall be termed as deposit. An extension to this definition has been provided in Rule 2(1)(c) (covered in later part of the article). Further, Sections 73 to 76A of CA, 13 provide the provisions related to acceptance of deposits from members by private companies and from persons other than members by public companies and the procedural requirements for the same have been prescribed by the Ministry through the Rules. Therefore, the reporting requirement comes from the Rules. Rule 16 of the existing set of Rules requires filing of the return of deposits (e- form DPT-3) within 30th of June every year by the companies accepting deposits. Apparently, till date, the reporting requirement is applicable only to those companies which have accepted money considered as deposits as per the definition. Therefore, the reporting by other companies was not required. However, the amendment is seemingly intending to include those other companies too within its purview.
Which all transactions are enlisted in Rule 2(1)(c)?
Rule 2(1)(c) defines the term ‘deposit’ in an exclusive manner and enlists nineteen transactions which are not treated as deposits. Below is the list of the items that are excluded from the term ‘deposit’-
1. Amount received from CG, SG etc.:
Any amount received from the Central Government or a State Government, or any amount received from any other source whose repayment is guaranteed by the Central Government or a State Government, or any amount received from a local authority, or any amount received from a statutory authority constituted under an Act of Parliament or a State Legislature;
2. Amount received from foreign Governments/ banks etc.:
Any amount received from foreign Governments, foreign or international banks, multilateral financial institutions (including, but not limited to, International Finance Corporation, Asian Development Bank, Commonwealth Development Corporation and International Bank for Industrial and Financial Reconstruction), foreign Governments owned development financial institutions, foreign export credit agencies, foreign collaborators, foreign bodies corporate and foreign citizens, foreign authorities or persons resident outside India subject to the provisions of Foreign Exchange Management Act, 1999 (42 of 1999) and rules and regulations made there under;
3. Amount received as loan from banking companies:
Any amount received as a loan or facility from any banking company or from the State Bank of India or any of its subsidiary banks or from a banking institution notified by the Central Government under section 51 of the Banking Regulation. Act, 1949 (10 of 1949), or a corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or in clause (a) of section (2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980) , or from a co-operative bank as defined in clause (b-ii) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934);
4. Amount received as loan from PFIs:
Any amount received as a loan or financial assistance from Public Financial Institutions notified by the Central Government in this behalf in consultation with the Reserve Bank of India or any regional financial institutions or Insurance Companies or Scheduled Banks as defined in the Reserve Bank of India Act, 1934 (2 of 1934);
5. Amount raised through issuance of commercial paper:
Any amount received against issue of commercial paper or any other instruments issued in accordance with the guidelines or notification issued by the Reserve Bank of India;
6. Inter- corporate deposits:
Any amount received by a company from any other company;
7. Amount received as subscription money for securities:
Any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards subscription to any securities, including share application money or advance towards allotment of securities pending allotment, so long as such amount is appropriated only against the amount due on allotment of the securities applied for;
Explanation.- For the purposes of this sub-clause, it is hereby clarified that –
(a) Without prejudice to any other liability or action, if the securities for which application money or advance for such securities was received cannot be allotted within sixty days from the date of receipt of the application money or advance for such securities and such application money or advance is not refunded to the subscribers within fifteen days from the date of completion of sixty days, such amount shall be treated as a deposit under these rules.
Provided that unless otherwise required under the Companies Act, 1956 (1 of 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) or rules or regulations made thereunder to allot any share, stock, bond, or debenture within a specified period, if a company receives any amount by way of subscriptions to any shares, stock, bonds or debentures before the 1st April, 2014 and disclosed in the balance sheet for the financial year ending on or before the 31st March, 2014 against which the allotment is pending on the 31st March, 2015, the company shall, by the 1st June 2015, either return such amounts to the persons from whom these were received or allot shares, stock, bonds or debentures or comply with these rules.
(b) any adjustment of the amount for any other purpose shall not be treated as refund.
8. Amount received from directors/ relative of directors:
Any amount 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 director of the company or relative of the director of the private company, as the case may be, from whom money is received, furnishes to the company at the time of giving the money, a declaration in writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others and the company shall disclose the details of money so accepted in the Board’s report;
9. Amount raised by issue of secured bonds/ debentures:
Any amount raised by the issue of bonds or debentures secured by a first charge or a charge ranking pari passu with the first charge on any assets referred to in Schedule III of the Act excluding intangible assets of the company or bonds or debentures compulsorily convertible into shares of the company within ten years:
Provided that if such bonds or debentures are secured by the charge of any assets referred to in Schedule III of the Act, excluding intangible assets, the amount of such bonds or debentures shall not exceed the market value of such assets as assessed by a registered valuer;
10. Amount raised through issuance of unsecured listed NCDs:
Any amount raised by issue of non-convertible debenture not constituting a charge on the assets of the company and listed on a recognised stock exchange as per applicable regulations made by Securities and Exchange Board of India.
11. Non-interest bearing security deposit received from employees:
Any amount received from an employee of the company not exceeding his annual salary under a contract of employment with the company in the nature of non-interest bearing security deposit;
12. Non-interest bearing amount held in trust:
Any non-interest bearing amount received and held in trust;
13. Advance from customers:
Any amount received in the course of, or for the purposes of, the business of the company,
(a) as an advance for the supply of goods or provision of services accounted for in any manner whatsoever provided that such advance is appropriated against supply of goods or provision of services within a period of three hundred and sixty five days from the date of acceptance of such advance:
Provided that in case of any advance which is subject matter of any legal proceedings before any court of law, the said time limit of three hundred and sixty five days shall not apply:
(b) as advance, accounted for in any manner whatsoever, received in connection with consideration for an immovable property under an agreement or arrangement, provided that such advance is adjusted against such property in accordance with the terms of agreement or arrangement;
(c) as security deposit for the performance of the contract for supply of goods or provision of services;
(d) as advance received under long term projects for supply of capital goods except those covered under item (b) above:
(e) as an advance towards consideration for providing future services in the form of a warranty or maintenance contract as per written agreement or arrangement, if the period for providing such services does not exceed the period prevalent as per common business practice or five years, from the date of acceptance of such service whichever is less;
(f) as an advance received and as allowed by any sectoral regulator or in accordance with directions of Central or State Government;
(g) as an advance for subscription towards publication, whether in print or in electronic to be adjusted against receipt of such publications;
Provided that if the amount received under items (a), (b) and (d) above becomes refundable (with or without interest) due to the reasons that the company accepting the money does not have necessary permission or approval, wherever required, to deal in the goods or properties or services for which the money is taken, then the amount received shall be deemed to be a deposit under these rules:
Explanation.- For the purposes of this sub-clause the amount shall be deemed to be deposits on the expiry of fifteen days from the date they become due for refund.
14. Amount brought by the promoters:
Any amount brought in by the promoters of the company by way of unsecured loan in pursuance of the stipulation of any lending financial institution or a bank subject to fulfilment of the following conditions, namely:-
(a) the loan is brought in pursuance of the stipulation imposed by the lending institutions on the promoters to contribute such finance;
(b) the loan is provided by the promoters themselves or by their relatives or by both; and
(c) the exemption under this sub-clause shall be available only till the loans of financial institution or bank are repaid and not thereafter;
15. Any amount accepted by a Nidhi company in accordance with the rules made under section 406 of the Act;
16. Any amount received by way of subscription in respect of a chit under the Chit Fund Act, 1982 (40 of 1982);
17. Any amount received by the company under any collective investment scheme in compliance with regulations framed by the Securities and Exchange Board of India;
18. Amount received by start- up company by way of convertible note:
An amount of twenty five lakh rupees or more received by a start-up company, by way of a convertible note (convertible into equity shares or repayable within a period not exceeding five years from the date of issue) in a single tranche, from a person.
Explanation.- For the purposes of this sub-clause,-
I. “start-up company” means a private company incorporated under the Companies Act, 2013 or Companies Act, 1956 and recognised as such in accordance with notification number G.S.R. 180(E) dated 17th, February, 2016 issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry;
II. “convertible note” means an instrument evidencing receipt of money initially as a debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of the start-up company upon occurrence of specified events and as per the other terms and conditions agreed to and indicated in the instrument.
19. Amount received from AIFs, VCFs REITs etc.:
Any amount received by a company from Alternate Investment Funds, Domestic Venture Capital Funds, Infrastructure Investment Trusts, Real Estate Investment Funds and Mutual Funds registered with the Securities and Exchange Board of India in accordance with regulations made by it.
Explanation.- For the purposes of this clause, any amount.-
(a) received by the company, whether in the form of instalments or otherwise, from a person with promise or offer to give returns, in cash or in kind, on completion of the period specified in the promise or offer, or earlier, accounted for in any manner whatsoever, or
(b) any additional contributions, over and above the amount under item (a) above, made by the company as part of such promise or offer, shall be treated as a deposit.
The concept of Deposit
Undoubtedly, deposit is a broader term and includes an advance as well loan. However, one has to evaluate the factual terms for such determination, as a deposit is a money for money transaction and it includes a loan in substance too. A money for money transaction appears when it is apparent that what come in, is money, and what goes out is also in the form of money. Having said so, an advance extended for a specific purpose cannot be treated as deposit, however, an advance without such a specific purpose shall be nothing but a deposit. Similarly, in case of share application money against which shares have not been allotted for long shall take the form of a deposit. Therefore, advance without purpose or share application money pending allotment for long and similar transactions are though not loan per se, but a loan in substance, hence will get covered under the concept of deposit. However, where there is no loan or a loan in substance, the same cannot be a money for money transaction and hence will come out of the purview of being deposits. Seemingly, the list mentioned in Rule 2(1)(c) is an attempt to cover a loan in substance too.
What will be the consequences for non- reporting?
Section 76A and Rule 21 are concerned about the penal consequences. Section 76A provides huge fines on the company as well as on the officers for accepting deposits in contravention of the prescribed manner or conditions in the Chapter and the Rules and also in case of failure in repayment of deposits. Further, in case of officers, the offence is non- compoundable as it involves fine and imprisonment both. The Section provides the following:
a. On the company: A fine of minimum one crore rupees or twice the amount of deposit so accepted, whichever is lower, which may extend to ten crore rupees; and
b. On the officers of the Company who is in default: imprisonment upto seven years and with a fine of not less than twenty five lakh rupees which may extend to two crore rupees.
From the above, it can be construed that the penal provisions provided in Section 76A shall apply only to those companies which have accepted money falling under the purview of deposits as per the definition. Therefore, if a company accepted money (e.g. ICD) which falls under the exclusion list shall not be subjected to the penal consequences of Section 76A as ICD is not a deposit.
On the other hand, on a reading of the language, Rule 21 seems to cover any other person also in its purview. The Rule provides fine for any other person apart from the companies covered in Sections 73 and 76, which contravenes any of the provisions of the Rules for which no punishment is provided in the Act. Therefore, for the applicability of Rule 21, one has to see the compliance requirements of the Rules also. Since the new reporting requirement has been made a part of the Rules which applies to every companies (excluding certain categories mentioned above), the consequences of Rule 21 shall apply to those companies also. Rule 21 prescribes a fine which may extend to five thousand rupees and in case of continuing violation a further fine which may extend to five hundred rupees for every day after the first day of such contravention.
The exclusion list as provided in the Rule covers certain items which, in day to day business, are very common for each type of entities irrespective of its size, status etc.. To mention the most common ones are, bank loans, advance from customers, loans from group entities, NCDs, CCDs, shares, share warrants, commercial papers etc. Considering the new reporting requirements, the companies will have to disclose details of all these transactions even though the same are not deposits.
Further, the amendments require reporting of the details of outstanding sums of receipt of money not considered as deposit as per the definition for the period starting from 1st April, 2014 to the date of enforcement of the amendments. Evidently, this reporting has to be of the outstanding amounts lying with the company. Therefore, say for example, if the company had accepted money from a company as a loan in the year 2014 which has already been repaid in 2017 shall not require reporting.
As there is no utterance of the intent behind such a reporting requirement, what will the Ministry gain from such reporting also remains a secret. In the recent past also, the Registrars of different jurisdictions have been circulating notices under Section 206 of CA, 13 seeking detailed information related to financial transactions from various companies. The intent for such information also was not being mentioned in those notices. To what extent the Registrars were successful on obtaining the required details through those notices are not known. Probably, by making the new reporting requirements a part of law will benefit them from getting those information on a regular basis at one place.
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