Saturday, 31 December 2011
Friday, 30 December 2011
Taxes- Due Date Alert for the month January 2012
Dear All,
Your kind attention is invited to the table given below which contains the due date for Tax compliance in respect of TDS/TCS, IT/WT, ST/VAT on different dates during the month January 2012.
Sr No
|
Due Date
|
Related to
|
Compliance to be made
|
1
|
05.1.2012
(Thursday)
|
Service Tax
|
Payment of Service Tax for the Month of December 2011
|
2
|
07.1.2012
(Saturday)
|
TDS/TCS
(Income Tax)
|
· Deposit TDS for payments of Salary, Interest, Commission or Brokerage, Rent, Professional fee, payment to Contractors, etc. during the month of December 2011.
· Deposit TDS from Salaries deducted during the month of December 2011
• Deposit TCS for collections made under section 206C including sale of scrap during the month of December 2011, if any
• Deliver a copy of Form 15G/15H, if any to CCIT or CIT for declarations received in the month of December 2011, if any
|
3
|
15.1.2012
(Sunday)
|
TDS/TCS
(Income Tax)
|
Furnish quarterly statement of tax deducted at source (TDS) and tax collected at source (TCS) for the quarter ended December 2011 in Form 24Q / 26Q / 27Q / 27EQ.
|
4
|
20.1.2012
(Friday)
|
VAT
|
Payment of VAT & filing of monthly return for the month of December 2011
|
5
|
30.1.2012
(Monday)
|
TDS/TCS
(Income Tax)
|
Issue of TDS Certificate - Non Salary for Q3 FY
|
Taxability of import of International Private Leased Circuit services
The International Private Leased Circuit services (IPLC services) provided by the ‘Telegraph Authority’ is taxable under the category of ‘Telecommunication Services’. In this regard, the CBEC had issued a Circular on 15 July 2011 clarifying that, in case the IPLC services are provided by a person located outside India and received by a person in India, service tax cannot be levied under the category of ‘Telecommunication Services’ as the provider of services is not a ‘Telegraph Authority’ within the meaning of Indian Telegraph Act, 1885. Such services are therefore required to be classified under the category of ‘Business Support Services’ and are subject to levy of service tax in the hands of the recipient of services.
In this background, the CBEC has recently issued a Circular, re-examining the clarifications provided in the earlier Circular dated 15 July 2011. As per the recent clarifications, the IPLC services rendered by a person located outside to a person located in India, is neither taxable under the category of “Telecommunication Services”, nor taxable under the category of “Business Support Services”.
Thursday, 29 December 2011
Where return of income (ROI) filed electronically and ITR-V form submitted by ordinary post, the ROI could not be treated as invalid on ground that ITR-V form had not been received by CPC, Bangalore
Facts
The taxpayer filed its return of income for assessment year 2009-10 electronically on 27th March 2010.
On 5th April 2010, taxpayer posted a copy of duly verified acknowledgement i.e. ITR-V to Central Processing Centre [“CPC”] of Income Tax Department at Bangalore by ordinary post.
On 16th May 2010, a communication from the CPC was received by the taxpayer intimating that acknowledgement had not been received and taxpayer was asked to furnish a copy of the same within 120 days of filing return.
The taxpayer again posted the acknowledgment to CPC on 18th May 2010.
Thereafter on 10th November 2010, a communication from the CPC was received that no acknowledgment has been received. In response, taxpayer once again posted the said acknowledgment on 18th November 2010 by ordinary post.
Ultimately an order dated 21st March 2011 was received by the taxpayer stating that no acknowledgment has been received in CPC and in view of provisions of section 139, the return of income would be considered as not verified and hence invalid
Taxpayer responded by stating that the acknowledgment had been sent thrice. Also it was stated that a representative of the taxpayer was deputed to Bangalore to deliver the form but she was denied meeting with Assistant Commissioner of Income Tax in CPC.
Issue before the Bombay High Court
Whether department was right in holding that return filed by the taxpayer was invalid merely because the acknowledgment of the return filed electronically was not received at the CPC Bangalore though the taxpayer thrice sent the acknowledgment to the CPC Bangalore by ordinary post?
Observations and Ruling of the Bombay High Court
Section 139(9) provides that if an Assessing Officer (AO) considers any return as defective, he may intimate that defect to the taxpayer for rectifying the mistake within 15 days or such extended period that he may allow.
If the return has not been rectified within the time period allowed, then the same may be treated as invalid and the provisions of the Act will prevail as if no return has been furnished.
The Explanation to section 139(9) states that return would be considered as invalid unless all the conditions prescribed therein are fulfilled and treating a return as invalid may have serious consequences.
Provisions have been inserted in the Act to ensure that defects may be rectified. Also if the taxpayer rectifies the mistake after the expiry of the time allowed but before the completion of the assessment, the AO has the power to condone that delay and treat the return as valid.
It was observed by the court that as per the instructions issued to the taxpayer, an acknowledgment of return filed was required to be remitted by ordinary post and not by speed post or registered post or courier.
The taxpayer had mailed the acknowledgment thrice.
The order dated 21st March 2011 issued by the revenue authorities was misconceived.
Hence the tax payer was required within a week to furnish the said verification in front of the Assessing Officer.
Accordingly the impugned order dated 21st March 2011 considering the return of income filed by the taxpayer as invalid was quashed.
Conclusion
Mere non-receipt of acknowledgment of return filed electronically at CPC Bangalore would not make the return invalid if the same is duly sent to CPC through ordinary post which is in accordance with the instructions issued by the revenue authorities.
Source: Crawford Bayley v. UOI [2011] 16 taxmann.com 323 (Bombay)
The taxpayer filed its return of income for assessment year 2009-10 electronically on 27th March 2010.
On 5th April 2010, taxpayer posted a copy of duly verified acknowledgement i.e. ITR-V to Central Processing Centre [“CPC”] of Income Tax Department at Bangalore by ordinary post.
On 16th May 2010, a communication from the CPC was received by the taxpayer intimating that acknowledgement had not been received and taxpayer was asked to furnish a copy of the same within 120 days of filing return.
The taxpayer again posted the acknowledgment to CPC on 18th May 2010.
Thereafter on 10th November 2010, a communication from the CPC was received that no acknowledgment has been received. In response, taxpayer once again posted the said acknowledgment on 18th November 2010 by ordinary post.
Ultimately an order dated 21st March 2011 was received by the taxpayer stating that no acknowledgment has been received in CPC and in view of provisions of section 139, the return of income would be considered as not verified and hence invalid
Taxpayer responded by stating that the acknowledgment had been sent thrice. Also it was stated that a representative of the taxpayer was deputed to Bangalore to deliver the form but she was denied meeting with Assistant Commissioner of Income Tax in CPC.
Issue before the Bombay High Court
Whether department was right in holding that return filed by the taxpayer was invalid merely because the acknowledgment of the return filed electronically was not received at the CPC Bangalore though the taxpayer thrice sent the acknowledgment to the CPC Bangalore by ordinary post?
Observations and Ruling of the Bombay High Court
Section 139(9) provides that if an Assessing Officer (AO) considers any return as defective, he may intimate that defect to the taxpayer for rectifying the mistake within 15 days or such extended period that he may allow.
If the return has not been rectified within the time period allowed, then the same may be treated as invalid and the provisions of the Act will prevail as if no return has been furnished.
The Explanation to section 139(9) states that return would be considered as invalid unless all the conditions prescribed therein are fulfilled and treating a return as invalid may have serious consequences.
Provisions have been inserted in the Act to ensure that defects may be rectified. Also if the taxpayer rectifies the mistake after the expiry of the time allowed but before the completion of the assessment, the AO has the power to condone that delay and treat the return as valid.
It was observed by the court that as per the instructions issued to the taxpayer, an acknowledgment of return filed was required to be remitted by ordinary post and not by speed post or registered post or courier.
The taxpayer had mailed the acknowledgment thrice.
The order dated 21st March 2011 issued by the revenue authorities was misconceived.
Hence the tax payer was required within a week to furnish the said verification in front of the Assessing Officer.
Accordingly the impugned order dated 21st March 2011 considering the return of income filed by the taxpayer as invalid was quashed.
Conclusion
Mere non-receipt of acknowledgment of return filed electronically at CPC Bangalore would not make the return invalid if the same is duly sent to CPC through ordinary post which is in accordance with the instructions issued by the revenue authorities.
Source: Crawford Bayley v. UOI [2011] 16 taxmann.com 323 (Bombay)
Monday, 26 December 2011
Overview of the Companies Bill, 2011
Background
The Companies Bill, 2011 (the Bill / 2011 Act) was introduced in the Parliament on 14 December 2011. The Bill when enacted would replace the Companies Act, 1956 (1956 Act). On introduction of the Companies Bill, 2009 in Parliament, CG had received several suggestions for amendments in the said Bill. The Parliamentary Standing Committee on Finance also made numerous recommendations in its Report. CG accepted in general the recommendations of the Standing Committee and also considered the suggestions received by it from various stakeholders. Accordingly, CG has withdrawn the Companies Bill, 2009 and introduced the Bill.
The Bill will come into force after it passes through the legislative scrutiny of the Parliament and from the date/(s) to be notified by CG.
Executive Summary
Maximum number of members in a private company increased from 50 to 200
Subscription money to be brought before commencement of business or borrowing by a newly formed company
For infrastructural projects, preference shares can be issued for a period exceeding 20 years
Provisions relating to further issue of capital to be applicable to all companies
Time gap between 2 buy-backs shall be minimum 1 year
QIBs not eligible to invest in securities of a company on private placement basis
Consolidation of financial statements made mandatory
2% of average profits of last 3 years to be spent on CSR
Mandatory transfer of profits to reserves for dividend declaration done away with
Rotation of Auditor
Secretarial audit by CS made compulsory in certain cases
One of the directors of a company shall be a person who has stayed in India for 182 days or more
Restriction on multilayer investment subsidiaries
Requirement of obtaining CG approval for relating party transactions done away with
Approval of CG required for certain managerial remuneration
Indian company can be merged with foreign company
Fast track merger for small companies and holding-WOS introduced
Inability to pay debts will be considered as criteria for determining a sick company
Valuation under 2011 Act to be done by registered valuer
Salient Features
The Bill lays down the basic framework of company law and leaves procedures to be determined by the Rules to be prescribed. Rules will be framed and amended by CG from time to time. This mechanism is for ensuring quick response to business needs without going through an elaborate procedure that an amendment to the Act would entail. The prescribed Rules are yet to be announced. In this document we have used the expression "prescribed" or "as prescribed" or "as may be prescribed" to mean that CG will prescribe the Rules for implementing the substantive provisions of the Bill. In the subsequent pages, salient features of the Bill are provided.
Incorporation of companies
No association or partnership consisting of more than prescribed number of persons (not more than 100) shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the association or partnership or by the individual members thereof, unless it is registered as a company or is formed under any other law for the time being in force. This rule is not applicable to an HUF carrying on any business and association or partnership formed by professionals who are governed by special acts.
Before commencement of any business or exercising any borrowing power, newly formed company to file with ROC a prescribed declaration to the effect that
‒ every subscriber has paid-in the value of shares subscribed to MOA; and
‒ paid-up share capital of the company is not less than the minimum prescribed.
Share capital and debentures
Authorized, subscribed and paid-up capital of a company to be mentioned in all notices, advertisement or other official publication or any business letter, billhead or letter paper.
Preference shares can be issued for a period exceeding 20 years for "infrastructural projects" (as defined).
Issue of further redeemable preference shares in lieu of arrears of dividend or failure to redeem existing preference shares as per the terms of issue to also require approval of NCLT.
Securities of any member in a public company shall be freely transferable. However, any contract or arrangement between two or more persons in respect of transfer of securities shall be enforceable as a contract.
Pricing of a Preferential Issue of shares by a company to be determined by a RV. Conditions may be prescribed in rules for preferential issue by companies.
Provisions relating to further issue of capital to be applicable to all types of companies.
Conditions specified for issue of Bonus shares which are applicable to all companies. CG to also provide detailed Rules.
Bonus shares cannot be issued in lieu of dividend.
No offer for buy-back shall be made within a period of 1 year from the date of preceding buy-back.
Companies which have issued debentures are required to create a DRR account out of profits of the company available for dividend.
Prospectus and allotment of securities
Public company permitted to issue securities through:
‒ public offer; or
‒ private placement; or
‒ issue of rights issue or bonus issue
subject to compliances with the Rules and SEBI Act and rules and regulations made thereunder.
A Private company may issue securities only through private placement complying with the Rules to be prescribed.
QIBs shall not be eligible to invest in securities of a company issued on private placement basis.
A person who has been convicted for personation for acquisition etc. of securities shall also be liable for suffering disgorgement of gains, seizure and disposal of such securities and such amount received through disgorgement or disposal of securities shall be transferred to IEPF.
Acceptance of deposits
Companies prohibited from inviting, accepting or renewing deposits from public except following:
‒ Banking company;
‒ NBFC;
‒ such other company as CG may specify; and
‒ Public companies having such net worth or turnover and subject to prescribed Rules.
Company other than those covered above can accept deposit only from its members by passing a resolution in general meeting and subject to Rules and conditions including the following:
‒ Credit rating;
‒ Deposit insurance;
‒ Depositing in scheduled bank 15% of amount of its deposits maturing during the current and next financial year, etc.
Any deposit accepted before the commencement of 2011 Act or any interest due thereon to be repaid within 1 year from the commencement of 2011 Act or from the date on which such payments are due, whichever is earlier.
Accounts of companies & BOD’s report
Financial Year of a company to end on the 31st day of March every year – exemptions may be availed in specified cases with approval of NCLT.
A company can re-open its books of accounts or re-cast its financial statements on the ground that the relevant
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earlier accounts were prepared in a fraudulent manner or the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements with the order of a Court or NCLT.
BOD may prepare revised financial statement or a revised board report in respect of any of the 3 preceding financial years after obtaining approval of NCLT, if it believes that the financial statements or the BOD report do not comply with the relevant provisions.
NFRA to be constituted by CG – to be headquartered at New Delhi – to provide for matters relating to accounting and auditing standards applicable to companies.
The functions of NFRA shall include:
‒ Monitor and enforce compliance with accounting and auditing standards;
‒ Oversee the quality of service of the professions and suggest measures required for improvement in quality of services and such other related matters as may be prescribed;
‒ Perform other prescribed functions.
Powers of NFRA shall include:
‒ Investigate into the matters of professional or other misconduct committed by member or firm of CA, CWA or CS in practice or any other profession as may be prescribed.
‒ Powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit.
‒ Where professional or other misconduct is proved, NFRA have the power to make order for imposing monetary penalty or debarring the member or the firm from engaging himself or itself from practice as member of the institute for a minimum period of 6 months or for such higher period not exceeding 10 years.
CG may direct keeping books of accounts of a company to be maintained for a period more than 8 years where any investigation has been ordered.
Director‘s Report to include amongst others, extract of the Annual Return, development and implementation of a risk management policy and CSR, related party contracts, certain loan / guarantees / investments and in case of listed and prescribed public companies – annual evaluation of the performance of the BOD.
Company having subsidiaries is mandatorily required to additionally prepare an audited consolidated financial statement of all the subsidiaries. Subsidiary for this purpose includes "joint venture" and "associate company".
Corporate Social Responsibility
Provisions applicable to every company having
‒ net worth of ` 5 billion or more; or
‒ turnover of ` 10 billion or more; or
‒ net profit of ` 50 million or more
during any financial year.
Such companies to constitute CSR committee of its BOD consisting of minimum 3 directors including 1 ID.
CSR committee shall formulate and recommend to the BOD, CSR Policy on the lines specified.
BOD of such companies shall make every endeavour to ensure that the company spends, in every financial year, minimum 2% of the average net profits of the company made during the 3 immediately preceding financial years, in pursuance of its CSR Policy. If the company fails to spend such amount, BOD shall specify the reasons for not spending the amount in the BOD report.
5
Dividend
Dividend to be paid out of
‒ profits of the company for the year after providing for depreciation; or
‒ profits of the previous years arrived at after providing for depreciation and remaining undistributed; or
‒ both of the above
Mandatory transfer of profits to reserves before declaration of dividend done away with. Companies may voluntarily transfer a portion of its profits to reserves.
Interim dividend may be declared only out of surplus in Profit & Loss Account and out of profits of the financial year in which dividend is sought to be declared. In case company has incurred loss upto the preceding quarter of the current financial year then interim dividend shall not be declared at a rate higher than the average dividends declared by the company during the immediately preceding 3 financial years.
Failure to comply with provisions relating to acceptance and repayment of deposits will prevent the company to declare any dividend during the period of non-compliance.
Where the unpaid / unclaimed dividend has been transferred to IEPF, the corresponding shares on which such dividend was unpaid / unclaimed shall also be transferred by the Company to IEPF.
Amounts that can be credited to IEPF widened to include
‒ amount received on disgorgement;
‒ redemption amount of preference shares remaining unpaid / unclaimed for 7 years or more;
‒ sale proceeds of fractional shares arising out of issuance of bonus shares, merger and amalgamation for 7 years or more.
Audit and auditors
Appointment of Auditor in unlisted companies Appointment Period of appointment
At first AGM
to hold office till conclusion of 6th AGM
Subsequent
to hold office till conclusion of 6th meeting
Procedure and manner of selection of auditor to be prescribed by Rules.
Appointment of Auditor in listed and specified class of companies Appointment Period of appointment
Individual
1 term of 5 consecutive years
Audit Firm
2 terms of 5 consecutive years
Cooling off period of 5 years before next appointment
Common conditions for appointment of auditor in listed and specified class of companies:
Incoming audit firm should not have any common partners who were the partners of the outgoing audit firm i.e. the audit firm whose tenure expired in the immediately preceding financial year by virtue of mandatory rotation requirement.
CG shall prescribe the manner in which the companies shall rotate their auditors.
Transition period of 3 years provided to the companies to comply with the mandatory rotation of auditor
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requirement.
Provisions relating to auditors applicable to all companies
Company may resolve:
‒ If Audit firm is appointed, the audit partner and his team shall rotate every year.
‒ Audit shall be conducted by more than 1 auditor (i.e. joint auditor).
Qualification of firm as auditors:
‒ Majority of partners practicing in India are qualified for appointment;
‒ If LLP is appointed as auditor, only partners who are CA shall be authorized to sign.
Additional grounds for disqualifications for appointment as auditor provided.
Auditor cannot provide following services "directly or indirectly" to the company or its holding company or subsidiary company or associate company, namely:—
‒ accounting and book keeping services;
‒ internal audit;
‒ design and implementation of any financial information system;
‒ actuarial services;
‒ investment advisory services;
‒ investment banking services;
‒ rendering of outsourced financial services;
‒ management services; and
‒ services prescribed under the Rules.
"Directly or Indirectly" shall include rendering of services by the auditor,—
‒ Where auditor is an individual - Either himself or through his relative or any other person connected or associated with such individual or through any other entity, whatsoever, in which such individual has significant influence or control, or whose name or trade mark or brand is used by such individual
‒ Where auditor is a firm – Either itself or through any of its partners or through its parent, subsidiary or associate entity or through any other entity, whatsoever, in which the firm or any partner of the firm has significant influence or control, or whose name or trade mark or brand is used by the firm or any of its partners.
Limits on number of audits to be prescribed through the Rules.
Functions of company secretary and secretarial audit
Functions of CS shall include —
‒ report to BOD about compliance with the provisions of 2011 Act, the rules made thereunder and other laws applicable to the company;
‒ ensure compliance with the applicable secretarial standards as may be approved by CG; and
‒ discharge such other prescribed duties.
Secretarial audit by CS in practice made compulsory for listed and prescribed class of companies.
Management and administration
AGM shall be called during the business hours i.e. between 9.00 AM and 6.00 PM on any day other than a National Holiday.
OPC not required to hold AGM.
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A member may exercise his vote at a meeting by electronic means as prescribed. Notice of general meeting can be given by electronic mode as prescribed.
Conditions for demanding a Poll at a general meeting on any resolution made uniform for all companies having share capital.
Listed company to file with ROC a report in respect of change in number of shares held by promoters or top 10 shareholders within 15 days of the said change.
CG may declare by notification such items of business which must be transacted by means of postal ballot. All items other than ordinary business and any business in respect of which directors or auditors have a right to be heard at any meeting, may be transacted by means of postal ballot. The manner of postal ballot will be as prescribed.
Quorum for general meeting - Presence of members in person only will be counted.
‒ Quorum for a private company shall be 2 members personally present.
‒ Quorum for a public company shall be as under: Total number of members in the Public company as of date of the meeting Quorum (Members personally present)
Upto 1,000 members
5
Between 1,000 to 5,000 members
15
More than 5,000 members
30
Annual Return to contain details as on close of the financial year (currently it is as on the date of AGM).
Annual Return to contain additional information relating to remuneration of directors and KMP, details of meetings of members, BOD and its various committee, etc.
Explanatory statement to be annexed to the notice of general meeting to also provide such other information and facts that may enable members to understand the meaning, scope and implications of the items of business and to take decision thereon.
Appointment and qualifications of directors
One of the directors in a company shall be a person who has stayed in India for 182 days or more in the previous calendar year.
OPC to have minimum 1 director.
Prescribed class of companies to have at least 1 woman director.
Duties of directors have been defined.
Director to vacate office if he remains absent from all the meetings of the BOD held during 12 months whether with or without seeking leave of absence of the BOD.
IDs
Listed companies to have at least 1/3rd of its total number of directors as IDs (as defined – further, the Rules may prescribe additional qualifications to be an ID). CG may prescribe minimum number of IDs in case of any class of public companies. This requirement is to be complied within 1 year:
‒ By existing listed companies from the commencement of 2011 Act; and
‒ By the prescribed class of public companies from the date Rules are notified.
Alternate director of an ID can be appointed if such an alternate director is also an ID.
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ID is not liable to retire by rotation.
ID shall be appointed for a term upto 5 consecutive years and are eligible for re-appointment subject to compliance with conditions including performance evaluation by the entire BOD and approval by members through special resolution.
Once the 2 consecutive terms are completed, the ID shall be eligible for appointment after a cooling period of 3 years, provided he is not associated with the company during this 3 years period in any capacity, either directly or indirectly.
An ID may be selected from data bank maintained by notified institute or association having expertise in creation and maintenance of such data bank.
IDs not entitled to any remuneration other than sitting fee, re-imbursement of expenses for participation in meetings, profit related commission as approved by the members of the company.
ID and NED (not being promoter or KMP), shall be held liable, only for such acts by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.
Director elected by small shareholders
A listed company may have 1 director elected by a small shareholders i.e. shareholders holding shares of nominal value of not more than ` 20,000 or such other sum as may be prescribed.
Manner, terms and conditions of appointment of such director will be prescribed.
Additional grounds for disqualification of director
A person who has been convicted of offence dealing with related party transactions at any time during the preceding 5 years.
Directorship in private companies too under ambit of disqualification on ground of non-filing of financial statements or annual return for any continuous 3 years or failure to repay deposits accepted by it or redeem debentures on due date or pay interest due thereon or pay any dividend declared and such failure continues for 1 year or more.
Maximum number of directorship
A person cannot be a director, including alternate director, in more than 20 companies including not more than 10 public companies.
‒ For determination of public companies for this purpose, directorship in private companies that are either holding or subsidiary company of a public company shall be regarded as a public company.
Shareholders may specify lesser number of companies in which a director of the company may act as director.
Transition period to comply with the limit on directorship - 1 year from the commencement of 2011 Act.
Resignation of directors
Resignation of director to take effect from the date on which notice of resignation is received by the company, or the date, if any, specified by director in the notice, whichever is later.
Resigning director to also file his resignation letter with the ROC within 30 days, in prescribed manner, giving detailed reasons for resignation.
Where all directors of a company resigns or vacate office, the promoter or in his absence, the CG to appoint the
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required number of directors till new directors are appointed in a general meeting.
Meetings of BOD
First meeting of the BOD of a company must be held within 30 days of its incorporation. Minimum 4 meetings of BOD to be held every year with the gap between the 2 consecutive meetings not exceeding 120 days. CG may by notification provide different requirement or modify the requirement for specific class or description of companies.
In case of OPC, small companies and dormant companies 1 board meeting to be in each half of the calendar year and gap between 2 meetings is not more than 90 days.
Participation in the board meeting through prescribed video conferencing or other audio visual means (VC) recognized. CG may provide a list of businesses where meeting by means of VC will not be recognized.
At least 7 days‘ notice for board meeting shall be given. A board meeting may be called at a shorter notice to transact urgent business, if at least 1 ID is present at such meeting. Decision taken at such meeting in absence of an ID is final only on ratification thereof by at least 1 ID.
Committees of BOD
Audit committee
Mandatory for listed companies and other prescribed classes of companies.
Composition – Minimum 3 directors with majority comprising of IDs.
Chairperson and majority of directors shall be persons with ability to read and understand the financial statement.
Transitional period for compliance – 1 year from the commencement of 2011 Act.
Listed companies and prescribed companies to have vigil mechanism for directors and employees to report genuine concern in prescribed manner.
Nomination and Remuneration committee
Mandatory in case of listed companies and other prescribed classes of companies.
Composition – 3 or more NED of which at least ½ shall be IDs.
This committee shall amongst other:
‒ Identify persons who are qualified to be directors and who can be appointed in senior management;
‒ Recommend to BOD, policy relating to remuneration to directors, KMP and other employees keeping in mind appropriate performance bench mark; striking a balance between fixed and incentive pay etc.;
‒ be responsible for evaluation of every director of BOD.
Stakeholders Relationship Committee
SRC mandatory where total number of shareholders, deposit holders, debenture holders and other security holder exceeds 1,000 at any time during a financial year.
Composition – Chairperson shall be NED and such other number of directors as determined by the BOD.
This committee to consider and resolve grievances of the security holders of the company.
Restrictions on powers of BOD
Restriction on power of BOD to exercise specified powers with general meeting approval extended to private companies. In all cases approval of shareholders by a special resolution made necessary.
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In case of sale, lease or otherwise disposal of one or more undertaking or the whole or substantially the whole of undertaking, quantitative tests provided for determination of ‗undertaking‘ and ‗substantially the whole of the undertaking‘.
Loan to Directors
Company shall not directly or indirectly make any loan including book debt or give any guarantee or provide any security to its director or to any other persons in whom the director is interested. This provision is not applicable to
‒ Loan to MD / WTD
as a part of contract of services extended to all its employees; or
Pursuant to scheme approved by members by special resolution
‒ A company which in the ordinary course of its business provides loan, guarantee or security for due repayment of any loan and charges interest thereon being not less than bank rate declared by RBI.
Provisions made applicable to private companies and need to obtain CG approval for such loans removed.
Restriction on multilayer investment subsidiaries
A company unless otherwise prescribed can make investment through not more than 2 layers of investment companies. Exception to this rule is:
‒ acquisition of a foreign company which has investment subsidiary beyond 2 layers as per the applicable foreign law; and
‒ a subsidiary company making investment to comply with any applicable law.
Inter-corporate loan, guarantee, security and investment
Loans, guarantee and security made to any person will be covered under the ambit of this provision.
Exemption provided for
‒ Loan, guarantee or security made by:
banking company or insurance company or housing finance company in-ordinary course of their business;
company engaged in the business of financing of companies or of providing infrastructural facilities.
‒ Investment and lending by NBFC whose principal business is acquisition of securities.
‒ Acquisition by companies having principal business of acquisition of securities.
‒ Acquisition of shares pursuant to further issue of capital.
Prescribed class of companies being company registered with SEBI under section 12 of SEBI Act cannot take inter-corporate loan or deposit exceeding the prescribed limit.
Related party transactions
Requirement of obtaining CG approval done away with.
Related party transactions amongst others to include:
‒ Buying, selling etc. property of any kind;
‒ Leasing of any kind of property;
‒ Related party‘s appointment to any office or place of profit in the company, its subsidiary company or associate company.
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Related party transactions by a company having prescribed paid-up capital or value of transaction exceeding prescribed limits will require prior approval of members by special resolution. The related party who is a member of such a company cannot vote in such special resolution.
The provisions would not apply to transactions entered into in the ordinary course of business, unless they are not on an arms‘ length basis.
BOD report to disclose related party transactions along with the justification.
Appointment and remuneration of Managerial Personnel
Prescribed class of companies to have whole-time KMP.
‒ A whole-time KMP shall not hold office in more than 1 company at the same time.
‒ CFO made responsible and liable for penalty and / or prosecution for compliance with various provisions such as – maintenance of books of accounts, preparation & filing of annual accounts, disclosure of financial information in offer document, risk management, internal control etc.,
In case of companies with no profits or inadequate profits, managerial remuneration can be paid as per Schedule of remuneration (Schedule V – similar to existing Schedule XIII to 1956 Act). If the conditions of such Schedule are not complied with, payment of managerial remuneration will require approval of CG.
Insurance premium paid by company for indemnifying specified KMPs against the liabilities for negligence, breach of duty etc. of such specified KMPs shall not be treated as part of remuneration of such KMPs.
MD or WTD of the company who is in receipt of any commission from the company shall not be disqualified from receiving any remuneration / commission from its holding company or subsidiary company subject to necessary disclosures in the BOD report.
Prior approval of shareholders required in general meeting for a company to enter into an arrangement by which -
‒ a director of the company or its holding, subsidiary or associate company or a person connected with him acquires or is to acquire assets for consideration other than cash, from the company; or
‒ the company acquires or is to acquire assets for consideration other than cash, from such director or person so connected.
Director or KMP of a company shall not buy in the company, its holding, subsidiary or associate company -
‒ a right to call for delivery or a right to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures; or
‒ a right, as he may elect, to call for delivery or to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures.
Prohibition on insider trading of securities
No person including any director or KMP of a company shall enter into insider trading (as defined) except to any communication required in the ordinary course of business or profession or employment or under any law.
Compromises, arrangements and amalgamations
Fast track provisions made to facilitate merger between 2 or more small companies or between holding company and its WOS or such other class of companies as may be prescribed. Fast track merger would require approval of ROC, OL, members holding at least 90% of total no. of shares and majority of creditors representing 9/10th in value.
Foreign company can be merged with Indian company or vice versa with prior approval of RBI and the
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consideration can be paid in the form of cash and / or depository receipts. This would apply to foreign companies in jurisdictions as notified by CG.
Acquirer and / or PAC or person or group of persons who holds 90% or more of the issued equity capital of the company by virtue of amalgamation, share exchange, conversion of securities or for any other reasons, can notify the company of his intention to purchase the remaining equity shares of the company from minority shareholders. In such cases the valuation shall be done by RV. The minority shareholders of the company may also offer to sell their equity shares to the majority shareholders at a price determined in accordance with the prescribed Rules.
Compromise or arrangement would require approval by a majority representing 3/4th in value of the creditors and members. Creditors meeting may be dispensed with if at least 90% in value thereof, agree and confirm, by way of an affidavit, to the scheme of compromise or arrangement.
Accounting treatment in the scheme of compromise and arrangement need to be compliant with the accounting standards and auditor‘s certificate to that effect needs to be filed with NCLT.
Valuation report to be given to shareholders / creditors along with notice convening meeting for a compromise or arrangement.
Notice of compromise or arrangement to be given to CG, Income tax, RBI, SEBI, Stock exchanges, ROC, OL, CCI, if necessary, and other sectoral regulators / authorities, to enable them to make representations.
Postal ballot for approval of compromise / arrangement with creditors allowed.
Holding of shares in its own name or in the name of trust whether through subsidiary or associate companies by the transferee company as a result of the compromise or arrangement, not allowed and any such shares shall be cancelled / extinguished.
Objection to the compromise or arrangement can be made only by persons holding not less than 10% of the shareholding or having outstanding debt of not less than 5% of total outstanding debt as per the latest audited balance sheet.
A scheme of compromise and arrangement may include ―takeover offer‖ in a prescribed manner. In case of listed companies such takeover offer shall be as per the guidelines issued by SEBI.
No compromise or arrangement shall include buy-back of securities unless it is in accordance for buy-back provisions.
In case of compromise / arrangement between a listed transferor company and an unlisted transferee company, NCLT may provide that the transferee company shall remain unlisted company until it becomes listed and those shareholders of the transferor company who opts to exit be given an exit at a price which should not be less than the price under SEBI Regulations.
The scheme of compromise or arrangement shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date
Revival and rehabilitation of sick companies
Provisions of revival and rehabilitation of sick companies to apply to all companies and not only to "industrial company" as defined under SICA.
Inability of a company to pay debts will be considered as criteria for determining a sick company.
‒ If a company fails to pay debts due to its secured creditor representing 50% or more of outstanding amount of debt within 30 days of demand, any secured creditor may file an application to NCLT to declare such company as a sick company.
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‒ The company may also file an application to NCLT to declare it as a sick company on above ground.
RIF shall be formed for the purposes of rehabilitation, revival and liquidation of sick companies. A company that has contributed any amount to RIF can utilize the funds contributed by it for making payment to workmen, protecting assets and meeting incidental costs during sickness / winding-up proceedings.
Registered Valuers
Where any valuation is required to be made in respect of any property, stocks, shares, debentures, securities, goodwill or other assets or of net-worth or liabilities under 2011 Act, such valuation shall be done by a person registered as a valuer.
Registered valuer shall be appointed by the audit committee or in its absence by the BOD.
Prevention of oppression and mismanagement
Class action suits enabled - One or more members or class thereof or one or more creditors / class thereof can apply to NCLT for orders to prevent the affairs of the company being conducted in a manner prejudicial to interests of the company.
To prevent possible misuse, Class action applications can be made by prescribed number of members / creditors. Banking companies to be out of the purview of Class action.
Dormant company
A company not having any significant accounting transaction, and which is formed under the 2011 Act for a future project or to hold an asset or an intellectual property or an inactive company may obtain status of a dormant company by applying to the ROC.
A company which has not filed financial statements or annual returns for 2 financial years consecutively will be classified as Dormant Company by the ROC.
A company which not been carrying on any business or operation, or has not made any significant accounting transaction during the last 2 financial years, or has not filed financial statements and annual returns during the last 2 financial years is classified as Inactive Company.
A dormant company will have such number of directors, file such documents and pay such annual fees as may be prescribed.
Removal of names of companies from the register of companies
A company may be struck off by ROC for following reasons -
‒ subscribers to MOA have not paid the subscription money within 180 days from the date of incorporation;
‒ company has failed to commence its business within 1 year of its incorporation;
‒ company is not carrying on any business or operation for 2 immediately preceding financial year and has within such period applied for status of a dormant company.
Companies can also by passing a special resolution apply for removal of name.
Winding up of a company
Certain criteria for winding-up by NCLT deleted like minimum number of members falling below prescribed limit, non-commencement of business for 1 year etc.
Additional grounds provided for winding-up. Winding up can be ordered if NCLT is of the opinion that:
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‒ affairs of the company have been conducted in a fraudulent manner;
‒ company was formed for fraudulent and unlawful purpose;
‒ the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith.
Inspection, inquiry and investigation
KMP, auditors and practicing CS also subject to search and seizure of documents by ROC and the Inspector appointed by CG.
CG to establish SFIO for investigation of frauds relating to a company. Till the time SFIO is not established, SFIO already set up by CG in terms of directions of GOI to be used.
CG may under the specified situations including in public interest refer affairs of a company to be investigated by SFIO.
Where pursuant to an investigation or a compliant, NCLT is of the opinion that there is good reason to find relevant facts about any securities and such facts cannot be found out unless certain restrictions are imposed, NCLT may provide restrictions on securities for a period not exceeding 3 years.
Where it appears to NCLT in specified circumstances that there are reasonable grounds to believe that the removal, transfer or disposal of funds, assets, properties of the company is likely to take place in a manner that is prejudicial to the interests of the company or its shareholders or creditors or in public interest, NCLT may direct such transfer, assets, properties, etc. of the company shall not take place during a period not exceeding 3 years.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
‒ Special Court may try in a summary way any offence under 2011 Act which is punishable with imprisonment for a term not exceeding 3 years.
‒ every offence under 2011 Act except certain offences shall be deemed to be non-cognizable within the meaning of the said Code. Offences under 2011 Act which are cognizable within the meaning of the said Code include:
Providing misleading or false information on incorporation;
Misstatement in prospectus;
Fraudulently inducing person to invest money;
Personation for acquisition of securities;
Concealment of name of creditor entitled to object reduction in capital;
Destruction of documents, etc.
National Company Law Tribunal and Appellate Tribunal
Tribunal to be known as NCLT will be constituted which will consists of Judicial and Technical members, as CG may deem necessary, to exercise and discharge the powers and functions conferred on NCLT by or under 2011 Act or any other law for the time being in force.
Principal bench of NCLT shall be at New Delhi and there may be such other benches as may be specified by CG.
NCLT to endeavor to dispose of the proceedings within 3 months from the date of commencement of the proceeding.
On the date of the constitution of NCLT
‒ All matters, proceedings or cases pending before CLB shall stand transferred to NCLT;
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‒ All proceedings under 1956 Act, including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending before any District Court or High Court, shall stand transferred to NCLT and NCLT may proceed to deal with such proceedings either de novo or from the stage before their transfer.
Appeals against the order of NCLT shall lie to NCLAT.
An appeal arising out of order of NCLAT on any question of law shall lie to Supreme Court.
A party to any proceeding or appeal before NCLT or NCLAT, may either appear in person or authorise one or more CA or CS or CWA or legal practitioners or any other person to present his case.
Special courts
CG may, for the purpose of providing speedy trial of offences, by notification, establish Special Courts.
When trying an offence under 2011 Act, a Special Court may also try an offence other than an offence under 2011 Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial.
Protection of minority shareholders interest
Some of the measures include the following:
The promoter and shareholders having control of a company which has unutilized money raised from public through prospectus and which proposes to change its objects are required to provide an exit to the dissenting shareholders in accordance with regulations to be specified by SEBI.
Where any benefit accrues to promoter, director, manager, KMP, or their relatives, either directly or indirectly as a result of non-disclosure or insufficient disclosure in the explanatory statement annexed to the notice of general meeting then such persons shall hold such benefit in trust for the company and shall be liable to compensate the company to the extent of the benefit received by him.
Others
The Bill provides that Producer Companies shall continue to be governed by Chapter IXA of 1956 Act until the enactment of Special Act for Producer Companies.
Remarks
The Bill has provisions which will have significant impact on the manner in which the companies are formed, managed, owned and regulated in India. The Bill has several unique features aimed at protection of minority shareholders and for corporate governance. It also introduces new concepts such as KMP, CSR, mandatory secretarial audit by listed companies, rotation of auditors, woman director, fast track mergers, amalgamation of an Indian company with a foreign company, OPC, etc. One would have to see the text of the Bill as approved by both the houses of Parliament. Also important will be to examine the Rules that would be notified by CG to operationalize the substantive provisions.
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Glossary
AGM: Annual General Meeting
AOA: Articles of Association
BOD: Board of Directors
CA: Chartered Accountant
CCI: Competition Commission of India
CEO: Chief Executive Officer
CFO: Chief Finance Officer
CG: Central Government
CRA: Credit Rating Agency
CS: Company Secretary
CSR: Corporate Social Responsibility
CWA: Cost Accountant
DRR: Debenture Redemption Reserve
EGM: Extra-Ordinary General Meeting
FY: Financial Year
GOI: Government of India
HUF: Hindu Undivided Family
ID: Independent Director
IEPF: Investor Education and Protection Fund
KMP: Key Managerial Personnel
LLP: Limited Liability Partnership
MCA: Ministry of Corporate Affairs
MD: Managing Director
MOA: Memorandum of Association
NBFC: Non-Banking Finance Companies
NCLT: National Company Law Tribunal
NCLAT: National Company Law Appellate Tribunal
NED: Non-Executive Director
NFRA: National Financial Reporting Authority
OL: Official Liquidator
OPC: One Person Company
PAC: Persons Acting in Concert
QIB: Qualified Institutional Buyer
RBI: Reserve Bank of India
RIF: Rehabilitation and Insolvency Fund
ROC: Registrar of Companies
RSE: Recognised Stock Exchange
RV: Registered Valuer
SEBI: Securities and Exchange Board of India
SFIO: Serious Fraud Investigation Office
SRC: Stakeholders Relationship Committee
WOS: Wholly Owned Subsidiary
WTD: Whole Time Director
Source: Companies Bill 2011 as introduced in Lok Sabha on 14 December 2011.
The Companies Bill, 2011 (the Bill / 2011 Act) was introduced in the Parliament on 14 December 2011. The Bill when enacted would replace the Companies Act, 1956 (1956 Act). On introduction of the Companies Bill, 2009 in Parliament, CG had received several suggestions for amendments in the said Bill. The Parliamentary Standing Committee on Finance also made numerous recommendations in its Report. CG accepted in general the recommendations of the Standing Committee and also considered the suggestions received by it from various stakeholders. Accordingly, CG has withdrawn the Companies Bill, 2009 and introduced the Bill.
The Bill will come into force after it passes through the legislative scrutiny of the Parliament and from the date/(s) to be notified by CG.
Executive Summary
Maximum number of members in a private company increased from 50 to 200
Subscription money to be brought before commencement of business or borrowing by a newly formed company
For infrastructural projects, preference shares can be issued for a period exceeding 20 years
Provisions relating to further issue of capital to be applicable to all companies
Time gap between 2 buy-backs shall be minimum 1 year
QIBs not eligible to invest in securities of a company on private placement basis
Consolidation of financial statements made mandatory
2% of average profits of last 3 years to be spent on CSR
Mandatory transfer of profits to reserves for dividend declaration done away with
Rotation of Auditor
Secretarial audit by CS made compulsory in certain cases
One of the directors of a company shall be a person who has stayed in India for 182 days or more
Restriction on multilayer investment subsidiaries
Requirement of obtaining CG approval for relating party transactions done away with
Approval of CG required for certain managerial remuneration
Indian company can be merged with foreign company
Fast track merger for small companies and holding-WOS introduced
Inability to pay debts will be considered as criteria for determining a sick company
Valuation under 2011 Act to be done by registered valuer
Salient Features
The Bill lays down the basic framework of company law and leaves procedures to be determined by the Rules to be prescribed. Rules will be framed and amended by CG from time to time. This mechanism is for ensuring quick response to business needs without going through an elaborate procedure that an amendment to the Act would entail. The prescribed Rules are yet to be announced. In this document we have used the expression "prescribed" or "as prescribed" or "as may be prescribed" to mean that CG will prescribe the Rules for implementing the substantive provisions of the Bill. In the subsequent pages, salient features of the Bill are provided.
Incorporation of companies
No association or partnership consisting of more than prescribed number of persons (not more than 100) shall be formed for the purpose of carrying on any business that has for its object the acquisition of gain by the association or partnership or by the individual members thereof, unless it is registered as a company or is formed under any other law for the time being in force. This rule is not applicable to an HUF carrying on any business and association or partnership formed by professionals who are governed by special acts.
Before commencement of any business or exercising any borrowing power, newly formed company to file with ROC a prescribed declaration to the effect that
‒ every subscriber has paid-in the value of shares subscribed to MOA; and
‒ paid-up share capital of the company is not less than the minimum prescribed.
Share capital and debentures
Authorized, subscribed and paid-up capital of a company to be mentioned in all notices, advertisement or other official publication or any business letter, billhead or letter paper.
Preference shares can be issued for a period exceeding 20 years for "infrastructural projects" (as defined).
Issue of further redeemable preference shares in lieu of arrears of dividend or failure to redeem existing preference shares as per the terms of issue to also require approval of NCLT.
Securities of any member in a public company shall be freely transferable. However, any contract or arrangement between two or more persons in respect of transfer of securities shall be enforceable as a contract.
Pricing of a Preferential Issue of shares by a company to be determined by a RV. Conditions may be prescribed in rules for preferential issue by companies.
Provisions relating to further issue of capital to be applicable to all types of companies.
Conditions specified for issue of Bonus shares which are applicable to all companies. CG to also provide detailed Rules.
Bonus shares cannot be issued in lieu of dividend.
No offer for buy-back shall be made within a period of 1 year from the date of preceding buy-back.
Companies which have issued debentures are required to create a DRR account out of profits of the company available for dividend.
Prospectus and allotment of securities
Public company permitted to issue securities through:
‒ public offer; or
‒ private placement; or
‒ issue of rights issue or bonus issue
subject to compliances with the Rules and SEBI Act and rules and regulations made thereunder.
A Private company may issue securities only through private placement complying with the Rules to be prescribed.
QIBs shall not be eligible to invest in securities of a company issued on private placement basis.
A person who has been convicted for personation for acquisition etc. of securities shall also be liable for suffering disgorgement of gains, seizure and disposal of such securities and such amount received through disgorgement or disposal of securities shall be transferred to IEPF.
Acceptance of deposits
Companies prohibited from inviting, accepting or renewing deposits from public except following:
‒ Banking company;
‒ NBFC;
‒ such other company as CG may specify; and
‒ Public companies having such net worth or turnover and subject to prescribed Rules.
Company other than those covered above can accept deposit only from its members by passing a resolution in general meeting and subject to Rules and conditions including the following:
‒ Credit rating;
‒ Deposit insurance;
‒ Depositing in scheduled bank 15% of amount of its deposits maturing during the current and next financial year, etc.
Any deposit accepted before the commencement of 2011 Act or any interest due thereon to be repaid within 1 year from the commencement of 2011 Act or from the date on which such payments are due, whichever is earlier.
Accounts of companies & BOD’s report
Financial Year of a company to end on the 31st day of March every year – exemptions may be availed in specified cases with approval of NCLT.
A company can re-open its books of accounts or re-cast its financial statements on the ground that the relevant
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earlier accounts were prepared in a fraudulent manner or the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements with the order of a Court or NCLT.
BOD may prepare revised financial statement or a revised board report in respect of any of the 3 preceding financial years after obtaining approval of NCLT, if it believes that the financial statements or the BOD report do not comply with the relevant provisions.
NFRA to be constituted by CG – to be headquartered at New Delhi – to provide for matters relating to accounting and auditing standards applicable to companies.
The functions of NFRA shall include:
‒ Monitor and enforce compliance with accounting and auditing standards;
‒ Oversee the quality of service of the professions and suggest measures required for improvement in quality of services and such other related matters as may be prescribed;
‒ Perform other prescribed functions.
Powers of NFRA shall include:
‒ Investigate into the matters of professional or other misconduct committed by member or firm of CA, CWA or CS in practice or any other profession as may be prescribed.
‒ Powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit.
‒ Where professional or other misconduct is proved, NFRA have the power to make order for imposing monetary penalty or debarring the member or the firm from engaging himself or itself from practice as member of the institute for a minimum period of 6 months or for such higher period not exceeding 10 years.
CG may direct keeping books of accounts of a company to be maintained for a period more than 8 years where any investigation has been ordered.
Director‘s Report to include amongst others, extract of the Annual Return, development and implementation of a risk management policy and CSR, related party contracts, certain loan / guarantees / investments and in case of listed and prescribed public companies – annual evaluation of the performance of the BOD.
Company having subsidiaries is mandatorily required to additionally prepare an audited consolidated financial statement of all the subsidiaries. Subsidiary for this purpose includes "joint venture" and "associate company".
Corporate Social Responsibility
Provisions applicable to every company having
‒ net worth of ` 5 billion or more; or
‒ turnover of ` 10 billion or more; or
‒ net profit of ` 50 million or more
during any financial year.
Such companies to constitute CSR committee of its BOD consisting of minimum 3 directors including 1 ID.
CSR committee shall formulate and recommend to the BOD, CSR Policy on the lines specified.
BOD of such companies shall make every endeavour to ensure that the company spends, in every financial year, minimum 2% of the average net profits of the company made during the 3 immediately preceding financial years, in pursuance of its CSR Policy. If the company fails to spend such amount, BOD shall specify the reasons for not spending the amount in the BOD report.
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Dividend
Dividend to be paid out of
‒ profits of the company for the year after providing for depreciation; or
‒ profits of the previous years arrived at after providing for depreciation and remaining undistributed; or
‒ both of the above
Mandatory transfer of profits to reserves before declaration of dividend done away with. Companies may voluntarily transfer a portion of its profits to reserves.
Interim dividend may be declared only out of surplus in Profit & Loss Account and out of profits of the financial year in which dividend is sought to be declared. In case company has incurred loss upto the preceding quarter of the current financial year then interim dividend shall not be declared at a rate higher than the average dividends declared by the company during the immediately preceding 3 financial years.
Failure to comply with provisions relating to acceptance and repayment of deposits will prevent the company to declare any dividend during the period of non-compliance.
Where the unpaid / unclaimed dividend has been transferred to IEPF, the corresponding shares on which such dividend was unpaid / unclaimed shall also be transferred by the Company to IEPF.
Amounts that can be credited to IEPF widened to include
‒ amount received on disgorgement;
‒ redemption amount of preference shares remaining unpaid / unclaimed for 7 years or more;
‒ sale proceeds of fractional shares arising out of issuance of bonus shares, merger and amalgamation for 7 years or more.
Audit and auditors
Appointment of Auditor in unlisted companies Appointment Period of appointment
At first AGM
to hold office till conclusion of 6th AGM
Subsequent
to hold office till conclusion of 6th meeting
Procedure and manner of selection of auditor to be prescribed by Rules.
Appointment of Auditor in listed and specified class of companies Appointment Period of appointment
Individual
1 term of 5 consecutive years
Audit Firm
2 terms of 5 consecutive years
Cooling off period of 5 years before next appointment
Common conditions for appointment of auditor in listed and specified class of companies:
Incoming audit firm should not have any common partners who were the partners of the outgoing audit firm i.e. the audit firm whose tenure expired in the immediately preceding financial year by virtue of mandatory rotation requirement.
CG shall prescribe the manner in which the companies shall rotate their auditors.
Transition period of 3 years provided to the companies to comply with the mandatory rotation of auditor
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requirement.
Provisions relating to auditors applicable to all companies
Company may resolve:
‒ If Audit firm is appointed, the audit partner and his team shall rotate every year.
‒ Audit shall be conducted by more than 1 auditor (i.e. joint auditor).
Qualification of firm as auditors:
‒ Majority of partners practicing in India are qualified for appointment;
‒ If LLP is appointed as auditor, only partners who are CA shall be authorized to sign.
Additional grounds for disqualifications for appointment as auditor provided.
Auditor cannot provide following services "directly or indirectly" to the company or its holding company or subsidiary company or associate company, namely:—
‒ accounting and book keeping services;
‒ internal audit;
‒ design and implementation of any financial information system;
‒ actuarial services;
‒ investment advisory services;
‒ investment banking services;
‒ rendering of outsourced financial services;
‒ management services; and
‒ services prescribed under the Rules.
"Directly or Indirectly" shall include rendering of services by the auditor,—
‒ Where auditor is an individual - Either himself or through his relative or any other person connected or associated with such individual or through any other entity, whatsoever, in which such individual has significant influence or control, or whose name or trade mark or brand is used by such individual
‒ Where auditor is a firm – Either itself or through any of its partners or through its parent, subsidiary or associate entity or through any other entity, whatsoever, in which the firm or any partner of the firm has significant influence or control, or whose name or trade mark or brand is used by the firm or any of its partners.
Limits on number of audits to be prescribed through the Rules.
Functions of company secretary and secretarial audit
Functions of CS shall include —
‒ report to BOD about compliance with the provisions of 2011 Act, the rules made thereunder and other laws applicable to the company;
‒ ensure compliance with the applicable secretarial standards as may be approved by CG; and
‒ discharge such other prescribed duties.
Secretarial audit by CS in practice made compulsory for listed and prescribed class of companies.
Management and administration
AGM shall be called during the business hours i.e. between 9.00 AM and 6.00 PM on any day other than a National Holiday.
OPC not required to hold AGM.
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A member may exercise his vote at a meeting by electronic means as prescribed. Notice of general meeting can be given by electronic mode as prescribed.
Conditions for demanding a Poll at a general meeting on any resolution made uniform for all companies having share capital.
Listed company to file with ROC a report in respect of change in number of shares held by promoters or top 10 shareholders within 15 days of the said change.
CG may declare by notification such items of business which must be transacted by means of postal ballot. All items other than ordinary business and any business in respect of which directors or auditors have a right to be heard at any meeting, may be transacted by means of postal ballot. The manner of postal ballot will be as prescribed.
Quorum for general meeting - Presence of members in person only will be counted.
‒ Quorum for a private company shall be 2 members personally present.
‒ Quorum for a public company shall be as under: Total number of members in the Public company as of date of the meeting Quorum (Members personally present)
Upto 1,000 members
5
Between 1,000 to 5,000 members
15
More than 5,000 members
30
Annual Return to contain details as on close of the financial year (currently it is as on the date of AGM).
Annual Return to contain additional information relating to remuneration of directors and KMP, details of meetings of members, BOD and its various committee, etc.
Explanatory statement to be annexed to the notice of general meeting to also provide such other information and facts that may enable members to understand the meaning, scope and implications of the items of business and to take decision thereon.
Appointment and qualifications of directors
One of the directors in a company shall be a person who has stayed in India for 182 days or more in the previous calendar year.
OPC to have minimum 1 director.
Prescribed class of companies to have at least 1 woman director.
Duties of directors have been defined.
Director to vacate office if he remains absent from all the meetings of the BOD held during 12 months whether with or without seeking leave of absence of the BOD.
IDs
Listed companies to have at least 1/3rd of its total number of directors as IDs (as defined – further, the Rules may prescribe additional qualifications to be an ID). CG may prescribe minimum number of IDs in case of any class of public companies. This requirement is to be complied within 1 year:
‒ By existing listed companies from the commencement of 2011 Act; and
‒ By the prescribed class of public companies from the date Rules are notified.
Alternate director of an ID can be appointed if such an alternate director is also an ID.
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ID is not liable to retire by rotation.
ID shall be appointed for a term upto 5 consecutive years and are eligible for re-appointment subject to compliance with conditions including performance evaluation by the entire BOD and approval by members through special resolution.
Once the 2 consecutive terms are completed, the ID shall be eligible for appointment after a cooling period of 3 years, provided he is not associated with the company during this 3 years period in any capacity, either directly or indirectly.
An ID may be selected from data bank maintained by notified institute or association having expertise in creation and maintenance of such data bank.
IDs not entitled to any remuneration other than sitting fee, re-imbursement of expenses for participation in meetings, profit related commission as approved by the members of the company.
ID and NED (not being promoter or KMP), shall be held liable, only for such acts by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.
Director elected by small shareholders
A listed company may have 1 director elected by a small shareholders i.e. shareholders holding shares of nominal value of not more than ` 20,000 or such other sum as may be prescribed.
Manner, terms and conditions of appointment of such director will be prescribed.
Additional grounds for disqualification of director
A person who has been convicted of offence dealing with related party transactions at any time during the preceding 5 years.
Directorship in private companies too under ambit of disqualification on ground of non-filing of financial statements or annual return for any continuous 3 years or failure to repay deposits accepted by it or redeem debentures on due date or pay interest due thereon or pay any dividend declared and such failure continues for 1 year or more.
Maximum number of directorship
A person cannot be a director, including alternate director, in more than 20 companies including not more than 10 public companies.
‒ For determination of public companies for this purpose, directorship in private companies that are either holding or subsidiary company of a public company shall be regarded as a public company.
Shareholders may specify lesser number of companies in which a director of the company may act as director.
Transition period to comply with the limit on directorship - 1 year from the commencement of 2011 Act.
Resignation of directors
Resignation of director to take effect from the date on which notice of resignation is received by the company, or the date, if any, specified by director in the notice, whichever is later.
Resigning director to also file his resignation letter with the ROC within 30 days, in prescribed manner, giving detailed reasons for resignation.
Where all directors of a company resigns or vacate office, the promoter or in his absence, the CG to appoint the
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required number of directors till new directors are appointed in a general meeting.
Meetings of BOD
First meeting of the BOD of a company must be held within 30 days of its incorporation. Minimum 4 meetings of BOD to be held every year with the gap between the 2 consecutive meetings not exceeding 120 days. CG may by notification provide different requirement or modify the requirement for specific class or description of companies.
In case of OPC, small companies and dormant companies 1 board meeting to be in each half of the calendar year and gap between 2 meetings is not more than 90 days.
Participation in the board meeting through prescribed video conferencing or other audio visual means (VC) recognized. CG may provide a list of businesses where meeting by means of VC will not be recognized.
At least 7 days‘ notice for board meeting shall be given. A board meeting may be called at a shorter notice to transact urgent business, if at least 1 ID is present at such meeting. Decision taken at such meeting in absence of an ID is final only on ratification thereof by at least 1 ID.
Committees of BOD
Audit committee
Mandatory for listed companies and other prescribed classes of companies.
Composition – Minimum 3 directors with majority comprising of IDs.
Chairperson and majority of directors shall be persons with ability to read and understand the financial statement.
Transitional period for compliance – 1 year from the commencement of 2011 Act.
Listed companies and prescribed companies to have vigil mechanism for directors and employees to report genuine concern in prescribed manner.
Nomination and Remuneration committee
Mandatory in case of listed companies and other prescribed classes of companies.
Composition – 3 or more NED of which at least ½ shall be IDs.
This committee shall amongst other:
‒ Identify persons who are qualified to be directors and who can be appointed in senior management;
‒ Recommend to BOD, policy relating to remuneration to directors, KMP and other employees keeping in mind appropriate performance bench mark; striking a balance between fixed and incentive pay etc.;
‒ be responsible for evaluation of every director of BOD.
Stakeholders Relationship Committee
SRC mandatory where total number of shareholders, deposit holders, debenture holders and other security holder exceeds 1,000 at any time during a financial year.
Composition – Chairperson shall be NED and such other number of directors as determined by the BOD.
This committee to consider and resolve grievances of the security holders of the company.
Restrictions on powers of BOD
Restriction on power of BOD to exercise specified powers with general meeting approval extended to private companies. In all cases approval of shareholders by a special resolution made necessary.
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In case of sale, lease or otherwise disposal of one or more undertaking or the whole or substantially the whole of undertaking, quantitative tests provided for determination of ‗undertaking‘ and ‗substantially the whole of the undertaking‘.
Loan to Directors
Company shall not directly or indirectly make any loan including book debt or give any guarantee or provide any security to its director or to any other persons in whom the director is interested. This provision is not applicable to
‒ Loan to MD / WTD
as a part of contract of services extended to all its employees; or
Pursuant to scheme approved by members by special resolution
‒ A company which in the ordinary course of its business provides loan, guarantee or security for due repayment of any loan and charges interest thereon being not less than bank rate declared by RBI.
Provisions made applicable to private companies and need to obtain CG approval for such loans removed.
Restriction on multilayer investment subsidiaries
A company unless otherwise prescribed can make investment through not more than 2 layers of investment companies. Exception to this rule is:
‒ acquisition of a foreign company which has investment subsidiary beyond 2 layers as per the applicable foreign law; and
‒ a subsidiary company making investment to comply with any applicable law.
Inter-corporate loan, guarantee, security and investment
Loans, guarantee and security made to any person will be covered under the ambit of this provision.
Exemption provided for
‒ Loan, guarantee or security made by:
banking company or insurance company or housing finance company in-ordinary course of their business;
company engaged in the business of financing of companies or of providing infrastructural facilities.
‒ Investment and lending by NBFC whose principal business is acquisition of securities.
‒ Acquisition by companies having principal business of acquisition of securities.
‒ Acquisition of shares pursuant to further issue of capital.
Prescribed class of companies being company registered with SEBI under section 12 of SEBI Act cannot take inter-corporate loan or deposit exceeding the prescribed limit.
Related party transactions
Requirement of obtaining CG approval done away with.
Related party transactions amongst others to include:
‒ Buying, selling etc. property of any kind;
‒ Leasing of any kind of property;
‒ Related party‘s appointment to any office or place of profit in the company, its subsidiary company or associate company.
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Related party transactions by a company having prescribed paid-up capital or value of transaction exceeding prescribed limits will require prior approval of members by special resolution. The related party who is a member of such a company cannot vote in such special resolution.
The provisions would not apply to transactions entered into in the ordinary course of business, unless they are not on an arms‘ length basis.
BOD report to disclose related party transactions along with the justification.
Appointment and remuneration of Managerial Personnel
Prescribed class of companies to have whole-time KMP.
‒ A whole-time KMP shall not hold office in more than 1 company at the same time.
‒ CFO made responsible and liable for penalty and / or prosecution for compliance with various provisions such as – maintenance of books of accounts, preparation & filing of annual accounts, disclosure of financial information in offer document, risk management, internal control etc.,
In case of companies with no profits or inadequate profits, managerial remuneration can be paid as per Schedule of remuneration (Schedule V – similar to existing Schedule XIII to 1956 Act). If the conditions of such Schedule are not complied with, payment of managerial remuneration will require approval of CG.
Insurance premium paid by company for indemnifying specified KMPs against the liabilities for negligence, breach of duty etc. of such specified KMPs shall not be treated as part of remuneration of such KMPs.
MD or WTD of the company who is in receipt of any commission from the company shall not be disqualified from receiving any remuneration / commission from its holding company or subsidiary company subject to necessary disclosures in the BOD report.
Prior approval of shareholders required in general meeting for a company to enter into an arrangement by which -
‒ a director of the company or its holding, subsidiary or associate company or a person connected with him acquires or is to acquire assets for consideration other than cash, from the company; or
‒ the company acquires or is to acquire assets for consideration other than cash, from such director or person so connected.
Director or KMP of a company shall not buy in the company, its holding, subsidiary or associate company -
‒ a right to call for delivery or a right to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures; or
‒ a right, as he may elect, to call for delivery or to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures.
Prohibition on insider trading of securities
No person including any director or KMP of a company shall enter into insider trading (as defined) except to any communication required in the ordinary course of business or profession or employment or under any law.
Compromises, arrangements and amalgamations
Fast track provisions made to facilitate merger between 2 or more small companies or between holding company and its WOS or such other class of companies as may be prescribed. Fast track merger would require approval of ROC, OL, members holding at least 90% of total no. of shares and majority of creditors representing 9/10th in value.
Foreign company can be merged with Indian company or vice versa with prior approval of RBI and the
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consideration can be paid in the form of cash and / or depository receipts. This would apply to foreign companies in jurisdictions as notified by CG.
Acquirer and / or PAC or person or group of persons who holds 90% or more of the issued equity capital of the company by virtue of amalgamation, share exchange, conversion of securities or for any other reasons, can notify the company of his intention to purchase the remaining equity shares of the company from minority shareholders. In such cases the valuation shall be done by RV. The minority shareholders of the company may also offer to sell their equity shares to the majority shareholders at a price determined in accordance with the prescribed Rules.
Compromise or arrangement would require approval by a majority representing 3/4th in value of the creditors and members. Creditors meeting may be dispensed with if at least 90% in value thereof, agree and confirm, by way of an affidavit, to the scheme of compromise or arrangement.
Accounting treatment in the scheme of compromise and arrangement need to be compliant with the accounting standards and auditor‘s certificate to that effect needs to be filed with NCLT.
Valuation report to be given to shareholders / creditors along with notice convening meeting for a compromise or arrangement.
Notice of compromise or arrangement to be given to CG, Income tax, RBI, SEBI, Stock exchanges, ROC, OL, CCI, if necessary, and other sectoral regulators / authorities, to enable them to make representations.
Postal ballot for approval of compromise / arrangement with creditors allowed.
Holding of shares in its own name or in the name of trust whether through subsidiary or associate companies by the transferee company as a result of the compromise or arrangement, not allowed and any such shares shall be cancelled / extinguished.
Objection to the compromise or arrangement can be made only by persons holding not less than 10% of the shareholding or having outstanding debt of not less than 5% of total outstanding debt as per the latest audited balance sheet.
A scheme of compromise and arrangement may include ―takeover offer‖ in a prescribed manner. In case of listed companies such takeover offer shall be as per the guidelines issued by SEBI.
No compromise or arrangement shall include buy-back of securities unless it is in accordance for buy-back provisions.
In case of compromise / arrangement between a listed transferor company and an unlisted transferee company, NCLT may provide that the transferee company shall remain unlisted company until it becomes listed and those shareholders of the transferor company who opts to exit be given an exit at a price which should not be less than the price under SEBI Regulations.
The scheme of compromise or arrangement shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date
Revival and rehabilitation of sick companies
Provisions of revival and rehabilitation of sick companies to apply to all companies and not only to "industrial company" as defined under SICA.
Inability of a company to pay debts will be considered as criteria for determining a sick company.
‒ If a company fails to pay debts due to its secured creditor representing 50% or more of outstanding amount of debt within 30 days of demand, any secured creditor may file an application to NCLT to declare such company as a sick company.
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‒ The company may also file an application to NCLT to declare it as a sick company on above ground.
RIF shall be formed for the purposes of rehabilitation, revival and liquidation of sick companies. A company that has contributed any amount to RIF can utilize the funds contributed by it for making payment to workmen, protecting assets and meeting incidental costs during sickness / winding-up proceedings.
Registered Valuers
Where any valuation is required to be made in respect of any property, stocks, shares, debentures, securities, goodwill or other assets or of net-worth or liabilities under 2011 Act, such valuation shall be done by a person registered as a valuer.
Registered valuer shall be appointed by the audit committee or in its absence by the BOD.
Prevention of oppression and mismanagement
Class action suits enabled - One or more members or class thereof or one or more creditors / class thereof can apply to NCLT for orders to prevent the affairs of the company being conducted in a manner prejudicial to interests of the company.
To prevent possible misuse, Class action applications can be made by prescribed number of members / creditors. Banking companies to be out of the purview of Class action.
Dormant company
A company not having any significant accounting transaction, and which is formed under the 2011 Act for a future project or to hold an asset or an intellectual property or an inactive company may obtain status of a dormant company by applying to the ROC.
A company which has not filed financial statements or annual returns for 2 financial years consecutively will be classified as Dormant Company by the ROC.
A company which not been carrying on any business or operation, or has not made any significant accounting transaction during the last 2 financial years, or has not filed financial statements and annual returns during the last 2 financial years is classified as Inactive Company.
A dormant company will have such number of directors, file such documents and pay such annual fees as may be prescribed.
Removal of names of companies from the register of companies
A company may be struck off by ROC for following reasons -
‒ subscribers to MOA have not paid the subscription money within 180 days from the date of incorporation;
‒ company has failed to commence its business within 1 year of its incorporation;
‒ company is not carrying on any business or operation for 2 immediately preceding financial year and has within such period applied for status of a dormant company.
Companies can also by passing a special resolution apply for removal of name.
Winding up of a company
Certain criteria for winding-up by NCLT deleted like minimum number of members falling below prescribed limit, non-commencement of business for 1 year etc.
Additional grounds provided for winding-up. Winding up can be ordered if NCLT is of the opinion that:
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‒ affairs of the company have been conducted in a fraudulent manner;
‒ company was formed for fraudulent and unlawful purpose;
‒ the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith.
Inspection, inquiry and investigation
KMP, auditors and practicing CS also subject to search and seizure of documents by ROC and the Inspector appointed by CG.
CG to establish SFIO for investigation of frauds relating to a company. Till the time SFIO is not established, SFIO already set up by CG in terms of directions of GOI to be used.
CG may under the specified situations including in public interest refer affairs of a company to be investigated by SFIO.
Where pursuant to an investigation or a compliant, NCLT is of the opinion that there is good reason to find relevant facts about any securities and such facts cannot be found out unless certain restrictions are imposed, NCLT may provide restrictions on securities for a period not exceeding 3 years.
Where it appears to NCLT in specified circumstances that there are reasonable grounds to believe that the removal, transfer or disposal of funds, assets, properties of the company is likely to take place in a manner that is prejudicial to the interests of the company or its shareholders or creditors or in public interest, NCLT may direct such transfer, assets, properties, etc. of the company shall not take place during a period not exceeding 3 years.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
‒ Special Court may try in a summary way any offence under 2011 Act which is punishable with imprisonment for a term not exceeding 3 years.
‒ every offence under 2011 Act except certain offences shall be deemed to be non-cognizable within the meaning of the said Code. Offences under 2011 Act which are cognizable within the meaning of the said Code include:
Providing misleading or false information on incorporation;
Misstatement in prospectus;
Fraudulently inducing person to invest money;
Personation for acquisition of securities;
Concealment of name of creditor entitled to object reduction in capital;
Destruction of documents, etc.
National Company Law Tribunal and Appellate Tribunal
Tribunal to be known as NCLT will be constituted which will consists of Judicial and Technical members, as CG may deem necessary, to exercise and discharge the powers and functions conferred on NCLT by or under 2011 Act or any other law for the time being in force.
Principal bench of NCLT shall be at New Delhi and there may be such other benches as may be specified by CG.
NCLT to endeavor to dispose of the proceedings within 3 months from the date of commencement of the proceeding.
On the date of the constitution of NCLT
‒ All matters, proceedings or cases pending before CLB shall stand transferred to NCLT;
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‒ All proceedings under 1956 Act, including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending before any District Court or High Court, shall stand transferred to NCLT and NCLT may proceed to deal with such proceedings either de novo or from the stage before their transfer.
Appeals against the order of NCLT shall lie to NCLAT.
An appeal arising out of order of NCLAT on any question of law shall lie to Supreme Court.
A party to any proceeding or appeal before NCLT or NCLAT, may either appear in person or authorise one or more CA or CS or CWA or legal practitioners or any other person to present his case.
Special courts
CG may, for the purpose of providing speedy trial of offences, by notification, establish Special Courts.
When trying an offence under 2011 Act, a Special Court may also try an offence other than an offence under 2011 Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial.
Protection of minority shareholders interest
Some of the measures include the following:
The promoter and shareholders having control of a company which has unutilized money raised from public through prospectus and which proposes to change its objects are required to provide an exit to the dissenting shareholders in accordance with regulations to be specified by SEBI.
Where any benefit accrues to promoter, director, manager, KMP, or their relatives, either directly or indirectly as a result of non-disclosure or insufficient disclosure in the explanatory statement annexed to the notice of general meeting then such persons shall hold such benefit in trust for the company and shall be liable to compensate the company to the extent of the benefit received by him.
Others
The Bill provides that Producer Companies shall continue to be governed by Chapter IXA of 1956 Act until the enactment of Special Act for Producer Companies.
Remarks
The Bill has provisions which will have significant impact on the manner in which the companies are formed, managed, owned and regulated in India. The Bill has several unique features aimed at protection of minority shareholders and for corporate governance. It also introduces new concepts such as KMP, CSR, mandatory secretarial audit by listed companies, rotation of auditors, woman director, fast track mergers, amalgamation of an Indian company with a foreign company, OPC, etc. One would have to see the text of the Bill as approved by both the houses of Parliament. Also important will be to examine the Rules that would be notified by CG to operationalize the substantive provisions.
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Glossary
AGM: Annual General Meeting
AOA: Articles of Association
BOD: Board of Directors
CA: Chartered Accountant
CCI: Competition Commission of India
CEO: Chief Executive Officer
CFO: Chief Finance Officer
CG: Central Government
CRA: Credit Rating Agency
CS: Company Secretary
CSR: Corporate Social Responsibility
CWA: Cost Accountant
DRR: Debenture Redemption Reserve
EGM: Extra-Ordinary General Meeting
FY: Financial Year
GOI: Government of India
HUF: Hindu Undivided Family
ID: Independent Director
IEPF: Investor Education and Protection Fund
KMP: Key Managerial Personnel
LLP: Limited Liability Partnership
MCA: Ministry of Corporate Affairs
MD: Managing Director
MOA: Memorandum of Association
NBFC: Non-Banking Finance Companies
NCLT: National Company Law Tribunal
NCLAT: National Company Law Appellate Tribunal
NED: Non-Executive Director
NFRA: National Financial Reporting Authority
OL: Official Liquidator
OPC: One Person Company
PAC: Persons Acting in Concert
QIB: Qualified Institutional Buyer
RBI: Reserve Bank of India
RIF: Rehabilitation and Insolvency Fund
ROC: Registrar of Companies
RSE: Recognised Stock Exchange
RV: Registered Valuer
SEBI: Securities and Exchange Board of India
SFIO: Serious Fraud Investigation Office
SRC: Stakeholders Relationship Committee
WOS: Wholly Owned Subsidiary
WTD: Whole Time Director
Source: Companies Bill 2011 as introduced in Lok Sabha on 14 December 2011.
S. 9: Profits from offshore supply of equipment & software not taxable in India
DIT vs. Ericsson AB (Delhi High Court)
The assessee, a Swedish company, entered into contracts with ten cellular operators for the supply of hardware equipment and software. The contracts were signed in India. The supply of the equipment was on CIF basis and the assessee took responsibility thereof till the goods reached India. The equipment was not to be accepted by the customer till the acceptance test was completed (in India). The assessee claimed that the income arising from the said activity was not chargeable to tax in India. The AO & CIT (A) held that the assessee had a “business connection” in India u/s 9(1)(i) & a “permanent establishment” under Article 5 of the DTAA. It was also held that the income from supply of software was assessable as “royalty” u/s 9(1)(vi) & Article 13. On appeal, the Special Bench of the Tribunal (Motorola Inc 95 ITD 269 (Del)) held that as the equipment had been transferred by the assessee offshore, the profits therefrom were not chargeable to tax. It was also held that the profits from the supply of software was not assessable to tax as “royalty”. On appeal by the department to the High Court, HELD dismissing the appeal:
Amount paid for non-compete rights while acquiring business is capital expenditure
Pitney Bowes India Pvt Ltd vs. CIT (Delhi High Court)
The assessee acquired the mailing business of Kilburn Office as a going concern on a slump sale basis pursuant to a Business Transfer Agreement. The consideration for the transfer was Rs. 18.92 crores which included Rs. 5.94 Crores by way of non-compete fee for a period of 5 years. In the accounts, the expenditure was treated as a capital payment though a deduction was claimed in the computation u/s 37(1). The AO disallowed the claim though the CIT (A) allowed it as deferred revenue expenditure. On appeal by the department, the Tribunal reversed the CIT (A) following Tecumesh India 132 TTJ 129 (Del) (SB) though it directed the AO to consider whether the payment was an “intangible asset” for purposes of depreciation. On appeal by the assessee, HELD dismissing the appeal:
S. 147: If AO disputes Audit objection, she cannot use that as “reason to believe”
Cadila Healthcare Ltd vs. ACIT (Gujarat High Court)
The Revenue Audit raised an objection that the assessee had made remittances to foreign parties without deduction of TDS u/s 195 and that the expenditure ought to have been disallowed u/s 40(a)(i). In reply, the AO wrote back stating that as the amounts remitted to the foreign parties were not chargeable to tax in India, the assessee was under no obligation to deduct tax u/s 195 and that the expenditure was not disallowable u/s 40(a)(i). However, she still issued a notice u/s 147 and reopened the assessment to disallow the said expenditure. The assessee filed a Writ Petition to challenge the reopening. HELD allowing the Petition:
Saturday, 24 December 2011
Friday, 23 December 2011
S. 147: AO cannot assess other “escaped income” if reason for issue of s. 148 notice dropped
ACIT vs. Major Deepak Mehta (Chattisgarh High Court)
Thursday, 22 December 2011
Procedure for activation TAN account at TIN.
Tax Information Network (TIN) has always been providing various facilities to deductors.
One such facility provided under TIN is authenticated login (TAN account) provided to deductors/collectors at TIN website. Under this login, following functions are provided:
· Online request of consolidated TDS/TCS file: Useful for preparation of correction statement.
· Online generation of Form 16A for valid PANs.
· Online download of default details generated by Income Tax Department.
· Bulk upload of Form 15CA records.
· Update of TAN account contact details.
As you may be aware, for creating authenticated login (TAN account), deductor/ collector has to register TAN online at TIN website. Based on the feedback received from the deductors as well as Income Tax Department, the procedure for registering as well as getting the various facilities is simplified/modified regularly. We have now made some changes in the TAN registration process. You are requested to go through the same very carefully. Very soon, preparation of correction statement will have to be made mandatorily using consolidated file provided by TIN. In view of the same, you are requested to create and activate the TAN account at TIN and avail the aforementioned facilities offered by TIN, if not done already.
Detailed revised procedure for creating “TAN Account” and activation of TAN account is as under.
· On registration, an e-mail containing link will be sent to registered e-mail ID (s).
· User will be required to click on the link for activating the TAN account. This link is sent for verifying the validity of e-mail ID.
· On clicking the link, user will be prompted to provide TAN and corresponding 12 digit TAN registration number.
· If the TAN & TAN registration number matches, then TAN account will be activated within 24 hours.
· TAN account will be active if at least one of the e-mail ID is verified.
· TAN account will not be activated, If the user does not click link or does not provide respective TAN and TAN registration number and the same is verified.
· If user has provided two e-mail ID (s) on registration/ re-registration, then the TAN account will be activated even if the user clicks on the link (as mentioned above) sent at any one of the registered e-mail ID.
· On activation of TAN account, an e-mail containing the user ID in password protected PDF file will be sent to registered e-mail ID (s). On receipt of this e-mail, user can login to TAN account.
Further the user may re-register the TAN if user has:
· Forgotten the TAN account details like user ID, TAN registration no. (12 digit alphanumeric number) or
· Would like to update the contact details of TAN account ,wherein the user does not know the login credentials of TAN account,
Procedure for activation of TAN account on re-registration of TAN would be the same as applicable on first time registration of TAN (as above). For detailed procedure for registration of TAN online, online request of consolidated file/ Form 16A file and default details you may download the e-tutorial available at TIN website under the download section.
This is system generated mail. Please do not reply to this email ID. For any query related to the above you may contact TIN Call centre at:
Tel: 91-20-2721 8080.
Fax: 91-20-2721 8081.
Computation of Section 10A
In the recent ruling of Delhi HC in the case of CIT(Delhi) Vs. EHPT India Pvt Ltd wherein it was held that while claiming the deduction under sec 10A and in the absence of any straight jacket formula for apportionment of expenses among STPI unit and non STPI unit, the assessee’s method for apportionment is to be accepted on the basis of principle of consistency.
CIT v EHPT India (P) Limited
Monday, 19 December 2011
Clarification on levy of service tax on distributors/sub-distributors of films & exhibitors of movie - regarding.
Circular No.148 / 17 / 2011 - ST
F.No.354/27/2011-TRU
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Tax Research Unit
153 North Block, New Delhi
Dated: 13.12.2011
To
Chief Commissioners of Central Excise and Service Tax (All),
Director General (Service Tax),
Director General (Central Excise Intelligence),
Director General (Audit),
Commissioners of Service Tax (All),
Commissioners of Central Excise and Service Tax (All).
Madam/Sir,
Subject: - Clarification on levy of service tax on distributors/sub-distributors of films & exhibitors of movie - regarding.
1. Representations requesting clarification on taxability of consideration earned by the distributors/sub-distributors/area distributors of Indian & Foreign films in the form of ‘revenue share’ from the exhibitors of the movie, and on revenue retained as percentage by the exhibitors of the movie from the sale of tickets have been received from certain sections of service providers in the light of recent changes in the law and CBEC Circular No 109/03/2009 dated 23.02.2009 issued under F. No. 137/186/2007-CX.4.
2. These representations have been examined. Subsequent to issuance of CBEC Circular No. 109/03/2009 dated 23.02.2009 significant changes in the law have taken place. Temporary transfer or permitting the use or enjoyment of, any copyright defined in the Copyright Act, 1957 (14 of 1957), except the rights covered under sub-clause (a) of clause (1) of section 13 of the said Act were made taxable w.e.f. 01.07.2010 under the sub-clause (zzzzt) of Sec 65(105) by the Finance Act of 2010. Also, for the words ‘operational assistance for marketing’, the words ‘operational or administrative assistance in any manner’ were substituted in the clause (104c) of Sec 64 of the Act by the Finance Act, 2011, w.e.f. 01.05.2011.
3. The normal business practice in the industry is that the producer of the film, who owns the intellectual property rights of the film, temporarily transfers the rights to a person [normally distributor or any other person] who directly or indirectly enters into an agreement with the exhibitor [normally theater owner] for screening of the film. There are also other variant modes of transaction in the industry.
4. In cases where distributor transfers the rights to sub-distributor, area distributor, exhibitor or theatre owner, the distributor is liable to collect the service tax under copyright service & deposit it with the government exchequer. Similarly when the sub-distributer or area distributor etc further transfers the rights to any person, he is also liable to collect the service tax under copyright service & deposit it with the government exchequer.
5. In cases where no such copyrights are transferred by the distributor or sub-distributor or area distributor to the exhibitor or theatre owner, the same is not chargeable to service tax under Copyright Services. However the business transaction needs to be examined for leviability of service tax under other heads. Depending upon the arrangement whether the theatre owner has merely let out its premises to the distributor or is also involved in giving support services for the business of the distributer, there can be a case of leviability of service tax on the remuneration retained by such theatre owner under “Business Support service” or “Renting of Immovable Property”. The definition of “Business Support service” has been amended in Budget 2011 to include “operational or administrative assistance in any manner” in its definition.
6. It is being represented that in certain situation the distributer and the theatre owner conduct business together and hence no service tax is leviable. Arrangement amongst two or more entities can either be on principal-to-principal basis or on partnership/joint/collaboration basis. In the former, the constituent members are independent of each other and do not share any risk/revenue/profit/loss/liability of the other while in latter the constituent members join hands for mutuality of interest and share common risk/profit together.
7. Unincorporated joint venture, not operating on principal-to-principal basis, will exist only if the arrangement entered into between the two independent persons is also recognized as a person. It may be noted that the word “person” has not been defined in the Finance Act, 1994. As per Sec 3(42) of General Clauses Act, 1897 “person shall include any company or association or body of individuals, whether incorporated or not”. In this regard attention is invited to explanation to Sec 65 of the Finance Act, 1994 wherein the taxable service includes any taxable service provided or to be provided by any unincorporated association or body of persons to a member thereof.
8. Such a joint venture is also recognized as a legal & juristic entity in the nature of a partnership of the constituent companies by the hon’ble Supreme Court of India in the case of New Horizons [1995 SCC (1) 478; 1994 -TMI – 83686] wherein it was held that “the expression ‘joint venture’ connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in profit and losses. The independence of joint venture as a separate legal entity, away from its constituent members, has further been fortified in the case of M/s Gammon India Ltd. Vs Commissioner of Customs, Mumbai, 2011-TMI - 204309 wherein the hon’ble Supreme Court categorically denied the benefit of exemption to the JV as the impugned goods were directly imported by constituent member.
9. Thus, where the distributor or sub-distributor or area distributor enters into an arrangement with the exhibitor or theatre owner, with the understanding to share revenue/profits and not provide the service on principal-to-principal basis, a new entity emerges, distinct from its constituents. As the new entity acquires the character of a “person”, the transactions between it and the other independent entities namely the distributor / sub-distributor / area distributor and the exhibitor etc will be a taxable service. Whereas, in cases the character of a “person” is not acquired in the business transaction and the transaction is as on principal-to-principal basis, the tax is leviable on either of the constituent members based on the nature of the transaction and as per rules of classification of service as embodied under Sec 65A of Finance Act, 1994.
10. To sum-up the above, the arrangements entered into by the distributor or sub-distributor or area distributor etc and the exhibitor or theatre owner etc in exhibiting the film produced by the producer, the original copyright holder, the arrangements and their respective service tax classification is tabulated as under:
Type of Arrangement
|
Movie exhibited on whose account
|
Service Tax Implication
|
Principal –to – Principal Basis
|
Movie being exhibited by theatre owner or exhibitor on his account – i.e. The copyrights are temporarily transferred
|
Service tax under copyright service to be provided by distributor or sub-distributor or area distributor or producer etc, as the case may be
|
Movie being exhibited on behalf of Distributor or Sub-Distributor or Area Distributor or Producer etc – i.e. no copyrights are temporarily transferred
|
Service Tax under Business Support Service / Renting of Immovable Property Service, as the case may be, to be provided by Theatre Owner or Exhibitor
| |
Arrangement under unincorporated partnership/ joint/ collaboration basis
|
Service provided by each of the person i.e. the ‘new entity’/ Theater Owner or Exhibitor / Distributor or Sub-Distributor or Area Distributor or Producer etc, as the case may be, is liable to Service Tax under applicable service head
| |
11. It is understood that the Circular dated 23.02.2009 has been misinterpreted to exclude all ‘revenue sharing’ arrangements from the levy of service tax. Remuneration or payment arrangements on basis of fixed or revenue sharing or profit sharing or hybrid versions of these may exist. However, the nature of transaction determines the leviability of service tax. Each case may be looked into on its merits and decision be taken on case to case basis.
12. The arrangements mentioned in this Circular will apply mutatis mutandis to similar situations across all the services taxable under the Finance Act.
(Samar Nanda)
Under Secretary (TRU)
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