Team Corplaw, Vinod Kothari & Company [firstname.lastname@example.org]
[This version: 25th March, 2021]
Accountants and auditors will have to grapple with a ton of new details and disclosures while preparing financial statements and audit reports, come financial year 2021-22. MCA brought, vide separate notifications dated 24th March, 2021 amendments in the Companies (Audit and Auditors) Rules,2014 (“Audit Rules”), the Companies (Accounts) Rules, 2014 (“Accounts Rules”) and Schedule III of the Companies Act.
While Schedule III changes will require wide ranging disclosures [to be covered by a separate write up], the amendments in Audit Report Rules and Accounts Rules require the following new disclosures:
- Camouflaged lending or investment, that is, where out-bound or inbound loans, advances and investments are intended to be routed through a conduit entity, masking the identity of the ultimate beneficiary
- Compliance with respect to payment of dividend
- The need for accounting software to maintain an audit trail, that is, edit log, of the primary entries, possibly with a view to enable the detection of any changes in primary entries
- Gaps in valuations of securities, so as to reflect the valuations at the time of borrowing money, and at the time of OTS
We briefly discuss these.
Applicability – scope and date
- The changes as will be discussed below will be applicable on the Auditor’s Report and Board’s Report from the financial year 2021-22 and onwards.
- Since statutory audit is a mandatory requirement for all the companies, the changes in the Auditor’s Report shall be applicable on all companies.
- From the language of the amendments, it is apparent that the changes are applicable only for the annual financial statements; neither are they applicable to interim financial statements, nor to special purpose financial statements.
- An important question will remain whether the required management representation and the auditors’ check will pertain to transactions done during the financial year 2021-22 and thereafter, or does it pertain to opening balances of transactions as on 1st April, 2021. In absence of any suggestion as to retroactivity, it should be logical to assume that the required management representation and the auditors’ checking should pertain to the transactions done during the financial year.
- The changes in relation to Board Report shall be applicable on all the companies, since the Board Report is a mandatory requirement for all.
- The requirements of audit trail and edit log are applicable on companies maintaining their accounts in the electronic form. However, practically, all companies maintain accounts in electronic format, so the same can be said to be applicable on all companies.
Camouflaged lending and investment:
What is the offence?
The issue under consideration is “camouflaged investments”. By using the term camouflage investments, we mean those transactions which are undertaken by a company for some identified beneficiary. However, the transaction does not take place between the company and the ultimate beneficiary directly, but is masked by the inclusion of an intermediary acting as a conduit entity (an entity acting on the instructions of the company for channelizing the funds to any other entity identified by the company).
These transactions mask the identity of the real beneficiary. In a world where financial transactions are regularly used for carrying illicit transactions, money-laundering transactions or other suspicious activities, it is important that the trail of financial transactions is transparent. Hence, if the identification of the end beneficiary is consciously being masqueraded, there is a concern. The proposed amendments are a means to address this issue.
What is the MCA intending to do?
The MCA, vide the amendment notification, is aiming to unveil the ultimate beneficiary behind the camouflage financing. Though investment through “conduit entities” is not barred by law, the same needs to be adequately disclosed in the notes of accounts of the company. Therefore, MCA, vide its amendment notification, requires the management of the company to give a representation that, except as otherwise disclosed in the notes to accounts, the company has neither employed, nor is itself acting as a “conduit entity” for any financial transaction.
Is it illegal to have investments via conduits?
Several laws refer to indirect lending or investment –
- Sec 185 of the Act prohibits both direct and indirect loans, investments, guarantees or security to the directors and other specified entities.
- Under the FEMA Regulations, the definition of “foreign equity holder” includes those equity holders having minimum 51% of indirect equity holding
- Sec 186 (1) also refers to investment “through” one or more layers of subsidiaries, which is again a case of indirect investments.
- In many commercial transactions, it is understood that the recipient is acting as a conduit – for example, lending through a fintech platform
- Special purpose vehicles, which are well allowed to operate under various laws, are intended to be conduits only
- Use of conduits is commonplace practice in many commercial transactions
Hence, while it is not illegal on the face of it, the use of a masquerading entity camouflages the real nature of the financial transaction. It acts as a subterfuge and hence, creates opacity. In the context of PMLA, these transactions may also be hiding the real identity of the real beneficiary.
Hence, it is important to ensure that the identity of the real beneficiary, if so targeted by the lender or investor, is disclosed.
What sort of transactions will be covered?
There are several elements in the camouflage rule that need to be understood:
There are 3 legs of the transaction: a source transaction, a conduit or intermediary transaction, and an ultimate beneficiary transaction.
The source transaction may be
- Advances, or
At the source stage, the money has come as a result of any borrowing, issue of shares or share premium or any other source or kind of funds. Since these expressions are wide enough, it does not matter what the source of the funds at the source level is.
The intermediary transaction may be by way of
- Loan or advance
- Provision of any guarantee or security
The ultimate beneficiary is the end beneficiary of the source transaction.
The following points may be noted about the scope of the Camouflage rule:
- Commercial transactions are not covered: Notably, the transactions covered by the rule are financial transactions, in the nature of loans, advances or investments. Real sector transactions such as sales, purchases, services, including payment and collection services, etc., are not covered by the rule.
- Non-discretionary transactions as regards the intermediary: In order to attract the offence of the camouflage rule,the source must have identified the ultimate beneficiary. This is clear from the words: “identified in any manner whatsoever by or on behalf of the company”. Thus, if the intermediary had the discretion in identifying the beneficiary, this rule is not attracted. Hence, the identification of the beneficiary is done by the source, and without any discretion on the part of the intermediary.
- Pre-contemplated transfer to the ultimate beneficiary: Next important element is the existence of an understanding with the intermediary that the funds passing through the intermediary are intended by the ultimate beneficiary. This is clear from the words “with the understanding, whether recorded in writing or otherwise”. The form of the understanding or the formal nature of the understanding also doesn’t matter, but the understanding must have been there.
- Direct nexus: This suggests that the flow of funds from the source of the intermediary, and from intermediary to the ultimate beneficiary must be part of the same transaction, showing a clear nexus.
- The intent of camouflaging the chain financial transaction is present: It is only when the real nature of the transaction is sought to be garbed, and the transaction purports to be a financial transaction with the intermediary, whereas the real intent is to provide funding to the ultimate beneficiary. For example, if a special purpose vehicle collects money from the investors, it is evident on the face of the transaction that the money is intended to go to another beneficiary. There is no garbing of the identity of the end beneficiary. These transactions are explicit and transparent transactions. The whole intent of the camouflage rule is to eliminate opacity. If the transaction was itself transparent, the rule has no relevance at all.
There are several interconnected financial transactions that abound in the world of finance. Hence, it will remain a matter of intrigue as to what all transactions may be regarded as falling under the offence of the camouflage rule. There are several questions that arise in this respect:
- Does a time gap matter?
For instance, the transaction by the source to the intermediary happens on 1st of 1st month, and the transaction by the intermediary to the beneficiary happens on 1st of 4th month. There may be a suggestion as to the existence of an understanding between the parties, but the very fact that there is a gap of time between the two legs of the transactions helps to create some opacity. It may be noted that the whole purpose of the camouflage disclosures is to pierce through the opacity and create transparency. Hence, if the gap in timing is merely a device to create opacity, it should not matter.
- Does a change in nature of the instrument at the intermediary level matter?
For example, the transaction from the source to the intermediary may be by way of loans. The transaction from the intermediary to the ultimate beneficiary may be by way of investment in shares. The terms of the two investments obviously differ. The first may have a limited tenure. The second one may be perennial. The entire approach has to be driven by substance over form – if the substantive view of the transaction suggests the two inter-connected transactions being part of the same chain, it will be wise to disclose the same.
- Does the infusion of some extent of funds by the intermediary matter?
For example, the source may have contributed Rs 1000. The intermediary may add another Rs 100 of its own, and transfer Rs 1100. To the extent of Rs 1000, there may still be a chain financial transaction requiring disclosure, while the remaining Rs 100 may be an independent transaction by the intermediary.
- Does the existence of a trust or fiduciary or agency relationship matter?
There are numerous transactions where a servicing agent, collecting agent, paying agent, etc acts merely as a conduit. This is the explicit nature of the transaction itself. Same goes with fiduciary transactions where the trustee or fiduciary discloses on the face of it that the trustee is merely a stop-over. However, trusts with undisclosed principals, while doing financial transactions, may be hit by the rule.
Duty of the auditor
The provisions are not just casting a responsibility on the directors, but the auditors are also required to substantiate the statement of the directors by applying their audit procedures. While the auditors can have ways and means to identify the instances of “outward” surrogate lending well, how the auditors can assure there are no instances of “inward” surrogate lending will require some new auditing methods.
Reasons of such reporting requirement
The amendments can be looked upon as a way to ensure that the companies do not use masquerades for the purpose of distinguishing the identity of the ultimate beneficiary of the funds. These might be to also check the instances of money laundering and terrorism financing.
Impact of the change
Though no specific punishments have been specified, on a conjoint reading of Sections 447 and 448 of the Act, it seems that the directors may be liable for fraud in cases of active concealment of material information or making mis-statements deliberately.
Since the Auditors are required to substantiate that there are no material mis-statements made by the directors as aforesaid, where the auditor fails to prove his innocence, he might also be penalised in cases of material misstatement.
Other additional disclosures required to be made in the Auditor’s Report
Compliance of Section 123 of the Act with respect to declaration/payment of dividend
The amended Audit Rules require the auditor to report on compliance with Section 123 of the Act by the company where it has declared/paid dividend. This has been done to ensure that the companies pay dividend on the basis of their profits and satisfies all the necessary conditions, and not when the companies may be suffering losses and it is practically impossible to pay dividend to its members.
Proper maintenance of audit trail at all times during the financial year
The auditors are also required to report on the maintenance of the audit trails and edit logs by the companies who opt to maintain their books of accounts in electronic mode. A discussion of the same is given in the later part of the write-up.
Accounting in electronic form – maintenance of audit trail
With effect from 1st April, 2021 the companies that maintain their accounts electronically by means of accounting software shall be required to ensure that the software is capable of maintaining audit trail and edit logs, and the same is not disabled at any point of time. The auditors are also required to report on the proper maintenance of such systems as discussed earlier.
Impact of the change
The compulsory maintenance of audit trail is a way to ensure the fabrication of books and any subsequent overwriting in the books of accounts. Through the audit trails, any person scrutinising the books of accounts can very easily track what changes have been made to the accounts and can require the company to explain the reasons thereof.
Additional disclosures in the Board’s Report
Applications/proceedings under IBC
Vide the amendments, the directors will be required to report the applications initiated or proceedings pending under IBC. Though the language of the law is not very clear on this, the understanding is that the directors will be required to report on the applications initiated or the proceedings pending against the company. Where such an application or proceedings are pending, the Board’s Report is also required to contain the status of the same as at the end of the year.
Impact of the change
The aforesaid amendment may be said to be an additional reporting requirement to keep the members, the real owners of the company as well as other stakeholders of the company updated about the current status of the company. The “insolvency” is a serious matter and shall not come as a shock to the stakeholders of a company, when the same is announced publicly at a later point of time.
Diabolical valuations of assets
Another very interesting insertion in the Board’s report is the details including the reason for the differences between the valuations of the company done at the time of one-time settlement and that at the time of taking loans from banks or other financial institutions. This is with a motive to ensure why there is a difference in valuation of the assets of the company at the time of one-time settlements v/s at the time of borrowing funds from the banks and financial institutions.
Reason of the change
The change is to ensure that the company has not inflated the value of their books at the time of seeking loans from the banks and financial institutions, nor has it deflated the same at the time of proposing one-time settlement.
We understand that there may be various reasons for the differential valuation, like difference in time period and resultant depreciation, amortization etc, or due to varying market forces. Whatever be the reasons, the same needs to be adequately captured in the Board’s Report for the company.
[The version above is a work in progress and we will continue to develop it further. Please do come back to this page. Please feel free to post your comments/questions in the space below.]