Tag Archives: demat

Highlights of the Companies Amendment Act, 2019

The Ministry of Corporate Affairs has amended the Companies Act 2013 vide the Companies (Amendment) Act, 2019 (the “Amendment Act”) notified on 31 July 2019. The Amendment Act takes into account the amendments that were already notified in the Companies (Amendment) Ordinance, 2018, which came into force on 2 November, 2018.

The major changes under the Amendment Act are broadly aimed at:

  • to improve the existing prosecution system by imposition of stricter penalties, under various sections, on the companies as well as the officers in default. Although this will increase the monetary burden on the company but will gradually help to reduce non-compliances.
  • to re-categorize certain compoundable offences as civil defaults and remove the criminal liability attached to them. The amendment has re-categorized certain penal provisions, where defaults that were punishable with fine/ and imprisonment have been amended to penalty. Now, the offences can be easily adjudicated with the authorities without going into time-consuming application procedures.
  • to transfer some of the approval powers from NCLT to the Central government i.e. ROC to reduce the burden of tribunals.
  • to bring accountability to the CSR activities undertaken by the Companies not only in letter but in spirit too.
  • greater accountability with respect to filing documents related to creation, modification and satisfaction of charges; non-maintenance of registered office to trigger de-registration process; holding of directorships beyond permissible limits to trigger disqualification of such directors, have also been introduced in the Amendment Act. Reforms pertaining to declaration of commencement of business provision.

Key Highlights of the Amendment Act:

Sr. No.

Category Highlights on the amendments


Approval for Change in Financial Year

Any company or body corporate which is a holding company or a subsidiary or an associate company of a company incorporated outside India and is required to follow a different financial year for consolidation of its accounts outside India, may change its financial year with the approval of Central Government.

Prior to amendment, Tribunal’s approval was required.

2. Requirement of obtaining approval for Commencement of Business

Companies incorporated after Amendment Act, shall commence its business or exercise any borrowing powers only after filing a declaration with respect to the receipt of paid up value of the shares from the subscribers to the memorandum and the verification of Registered office within 30 days from the date of incorporation in with the Registrar of Companies. The declaration shall be filed within 180 days from the date of Incorporation.

3. Physical verification of Registered Office of the Company

Pursuant to amendment in Section 12, the Registrar is empowered to do the physical verification of the Registered office of a Company if it has reasonable cause to believe that the company is not carrying on any business or operations also to remove the name of the Company from the register of companies.

4. Approval for conversion of Public Company to Private Limited Company

Erstwhile, the Tribunal had authority approve or reject any alteration in the Articles of the Company relating to conversion of a public company into a private company. Pursuant to this amendment, the Central Government is empowered.

5. Securities to be in Dematerialized Form

A new provision has been inserted to Section 29, whereby securities of certain class or classes of unlisted companies, the securities shall be held or transferred only in dematerialized form in the manner laid down in the Depositories Act, 1996 and the regulations made thereunder.

6. Registration of Charge (due date for filing is reduced)

Section 77 has been amended whereby the extended period of 270 days has been now restricted to 60 days for filing an application to register a charge.

7. Responsibility of Identifying beneficial owner

Sub-section 4A has been inserted whereby every company shall take necessary steps to identify an individual who is a significant beneficial owner in relation to the company and require him to comply with the provisions of section 90. The introduction of this section brings more clarity for casting duty on company to identify and report on Significant Beneficial Owner to the Registrar. Further, Central Government has been empowered to make rules for the section.

8. Consequence of non-filing of Annual Return

Penalty provisions on non-filing of the annual return within the prescribed timeline have been revised and a further penalty of INR 100 per day on continuing offence subject to a maximum of 5 Lakhs has been imposed.

9. Section 117 (Resolutions and Agreements to be Filed)

The word ‘fine’ has been substituted with the word ‘penalty’ in the penalty provision and an additional penalty on continuing offence of INR 500 per day subject to maximum of INR 5 Lakhs have been imposed.

10. Section 135 (Corporate Social Responsibility)

Clarification has been provided for calculation of profits in case of newly incorporated Company by inserting following words under sub-section 5 “or where the company has not completed the period of three financial years since its incorporation, during such immediately preceding financial years”. On the unspent amount, a provision has been added to transfer the unspent amount to a fund specified under schedule VII within six months from the expiry of financial year has been provided unless it relates to an ongoing project.

In relation to any amount being unspent which relates to an ongoing project shall be transferred to a separate account to be opened by the Company to be called as the Unspent Corporate Social Responsibility Account within a period of 30 days from the end of Financial Year and such amount shall be spent within the period of three financial years from the date of transfer and in case of failure such amount shall be transferred to a fund specified in Schedule VII within 30 days from the date of completion of third financial year.

In case of default, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to twenty-five lakh rupees and every officer of such company who is in default, shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.”

11. Automatic Vacation in case of Disqualification of Director

A new clause (i) has been inserted under Section 164 as “he has not complied with the provisions of sub-section (1) of section 165” which is one of the grounds of disqualification of a director where, if he/ she breaches the limits of maximum directorship allowed thereunder.

It is to be noted that falling under any of the clauses of Section 164 leads to automatic vacation of office from all the existing companies.

12. Stock options to Independent Director

Provisions pertaining to the prohibition on entitlement of stock option by independent directors. However, this omission shall not have any impact as Section 149 (9) also provides similar prohibition.

Further, the minimum fine of 1 lakh rupees and maximum fine of 5 lakhs rupees have been replaced with a penalty of INR 1 lakh for the defaulting person and in addition where any default has been made by a company, the company shall be liable to a penalty of five lakh rupees.

13. Oppression & Mismanagement

There is an insertion of 3 new sub-sections to the Section, where for the purpose of class of companies as may be prescribed the matter shall only be made before principal bench of the Tribunal and if in the opinion of Central government there exists circumstances as mentioned under sub section 3 clause (a) (b) (c) and (d), the Central Government may initiate a case against such person and refer the same to the Tribunal with a request that the Tribunal may inquire into the case and record a decision as to whether or not such person is a fit and proper person to hold the office of a director or any other office connected with the conduct and management of the company.

14. Powers of Tribunal in case of Oppression & Mismanagement

A new sub-section (4A) has been inserted to cast responsibility on the tribunal to record its decision at the conclusion of hearing case in respect of sub-section (3) of section 241, specifically as to whether or not the respondent is a fit and proper person to hold the office of director or any other office connected with the conduct and management of any company.

15. Section 243 (Consequence of termination or modification of certain agreements)

New Sub-sections (1A) and (1B) to the section has been inserted whereby in case a person is declared as not a fit or proper person pursuant to section 242(4A) under the case of oppression and mis-management, shall not hold the office of a director or any other office connected with the conduct and management of the affairs of any company for a period of five years from the date of the said decision provided that the Central Government may, with the leave of the Tribunal, permit such person to hold any such office before the expiry of the said period of five years.

Further, according to Section 243(1B), any person on being removed as Director or any other office connected with the conduct and management of affairs of the company, shall not be entitled to, or be paid, any compensation for the loss or termination of office.

16. Petition for winding up by Registrar

There is an amendment in sub-section (3) which enables the Registrar to present a petition for winding up under section 271 with the only exception mentioned in clause of Section 271 which talks about the situation where if the company has, by special resolution, resolved that the company be wound up by the Tribunal the Registrar may not present such petition.

17. Compounding of offences

The amendment has increased the limit of offence for compounding before the Regional Director from 5 Lakh rupees to 25 Lakh rupees in 441(1)(b). Further, it has been clarified in sub-section (6), that any offence which is punishable under this Act with imprisonment only or with imprisonment and also with fine shall not be compoundable.

18. Penalty for repeated default

New Section 454A has been inserted which talks about the penalty of repeated default. In this section a company or an officer of a company or any other person shall be liable to the twice the amount of penalty, who had already been subjected to the penalty under the Act. However, the subsequent default has to be repeated within 3 years from the date of order imposing penalty for earlier default.

Dematerialization of Shares

Shares went digital a couple of decades back.  While holding shares in demat is mandatory for public listed companies, even private limited companies can opt for it. This just makes it a tad easier, especially during the secondary sale of shares. Private limited companies who raise institutional investment or in cases of large number of angel investors on their capital table may find this especially useful.

shares demat

Image credit: thehindubusinessline.com

According to the Depositories Act, 1996, a shareholder has the option to hold shares either in physical or electronic form. The converted electronic data is stored with the depository from where they can be traded. It is similar to a bank where a shareholder opens an account with any of the depository participants.

The parties involved in process of Dematerialisation are Issuer Company, Depository, Depository Participant, Registrar and Transfer Agent and Shareholder.

Depository is an institution registered under the Securities and Exchange Board of India (SEBI). Similar to the way banks hold funds of its account holders, depositories maintain accounts for shareholders’ securities (share, debentures, mutual fund etc.) held by them in a dematerialised or an electronic form. Presently, National Securities Depository Limited (NSDL) and Central Depository Services Limited (CDSL) are registered with SEBI to act as Depositories in India. They interface with the shareholders through their agents called Depository Participants (DPs). Any bank (private, public and foreign), financial institutions and SEBI registered trading members could be a DP. A DP is one with whom you need to open an account to deal in electronic form.

Apart from ease, demat provides for other benefits

  • Dematerialized shares cannot be defaced or mutilated or stolen, hence it is a safe way to hold shares by the shareholders;
  • Easily transferred electronically;
  • No Stamp duty is required to be paid upon allotment or transfer of shares;
  • Reduction in transaction cost and legal cost;
  • Minimal paperwork.

Process that private limited companies can follow to demat their shares:

  1. The Articles of Association should provide for issuances of shares in dematerialised form.
  2. Arrange demat connectivity from depositories like NSDL or CDSL along with a Registrar and Transfer Agent (RTA) by entering into a tripartite agreement between the company, the Depositories and the RTA.
  3. Before converting physical shares into dematerialized form, a company is required to register with a depository as an issuer. These depositories have their terms of registration, so it is necessary for a company to meet those terms. If registration is successful depositories will be providing the company with an International Securities Identification Number (ISIN) for each of the shares. “ISIN” is a unique 12-digit alphanumeric code given to a security, share, debenture, bond etc. when the security is admitted in the depository system. First two digits of the ISIN code indicate country of registration for the security. For all securities registered on depository in India, first two digits of the ISIN code are ‘IN’.
  4. ISIN shall be quoted on all correspondence with the DP and Depositories with respect to allotment of securities or transfer of securities as the case may be.
  5. Issuer should obtain electronic connectivity with the existing RTA or by obtaining In-House connectivity.
  6. Shareholders of a registered company are required to open an account with any of the DPs in India by signing an agreement which defines the rights and duties of the DP and the shareholder wishing to open the account. The client ID along with the DP ID gives a unique identification in the depository system.
  7. After opening an account with the DP, a shareholder should surrender the physical certificates held in his name to the DP. These certificates will be sent to the respective companies where they will be cancelled after dematerialization and the respective shareholder’s account maintained with the DP will be credited.
  8. Dematerialised shares are in the fungible form, that is, they do not bear any notable feature like distinctive number, folio number or certificate numbers and stamping, is not required.

If required, securities in dematerialized form can again be converted into physical form through a process called Rematerialization.

Some indicator of the costs as per the information on the DP’s website.

At NSDL, the joining fees for companies to register as issuer is Rs. 30,000/- plus service tax (one-time fee). In addition to the joining fee, any issuer of the listed securities is required to pay annual custody fees at the rate of Rs. 8/- per shareholder in NSDL, which is subject to a minimum amount which ranges between Rs. 6000 (where nominal value of shares admitted is upto Rs. 5 crores) to about Rs. 50,000 (for nominal value of shares above Rs. 20 crores).

CDSL is the other big DP in India, whose fees and charges are a tad lesser than NSDL.


Authors: Ashwin Bhat D, Senior Associate and Ifla A, Associate

Disclaimer: The information contained in this post is for dissemination purposes only and shall not be relied upon as an opinion. For any help or assistance please email us on  relationships@novojuris.com