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Synopsis of Amendments made to the Companies Act, 2013 in the year 2019 and allied Action Points

The Ministry of Corporate Affairs (the MCA) in the month of January & February 2019 has issued the following amendments notification under the Companies Act 2013 (the Act):

(a) Changes in Companies (Significant Beneficial Owners) Rules 2018 to identify individuals/entities having significant control over the affairs of a company

(b) Companies (Incorporation) Rules, 2014 mandating all the companies incorporated prior to 31 December 2017 to upload all their particulars of various compliances including details of registered office in Form INC 22A Active.

(c) Specified Companies (Furnishing of information about payment to micro and small enterprise suppliers) Order, 2019, mandating all the companies who receives goods or services from MSME and the payment for which is not made within 45 days from the date of acceptance or the date of deemed acceptance of goods or services from MSME to report such transactions in MSME Form I.

(d) Changes in Companies (Acceptance of Deposits) Rules, 2014 mandating all companies to file a return of deposits in Form DPT 3 with the MCA, furnishing information about filing the transactions that have not been considered as a deposit or both under the Companies (Acceptance of Deposits) Rules 2014 (Deposit Rules).

The action points under these notifications are as below:

Sl. No Particulars Summary of Notification Form to be filed Due date
1. The Companies (Significant Beneficial Owners) Amendment Rules 2019[1] Who shall disclose?

Every individual, who acting alone or together, or through one or more persons or trust, possess one or more of the following rights in a company shall be deemed to be a significant beneficial owner (SBO):

·  holds indirectly, or together with any direct holdings, at least 10% of the shares or voting rights;

·   has the right to receive or participate (by virtue of their indirect and/or direct holdings) is not less than 10% of the total distributable dividend or any other distribution; or

· has the right to exercise significant influence or control (through their indirect holdings only) on the company.

However, individuals directly holding shares of the company in their own name or hold or acquires a beneficial interest in the share of the reporting company under subsection section 89 (2) of the Act and necessary reporting is made is not be considered to be a significant beneficial owner.

Further, an individual is considered to hold a right or entitlement indirectly in the reporting company, if he satisfies any of the following criteria, in respect of a member of the reporting company, namely:

·  If the member is a body corporate (Indian or foreign) – the individual holding majority stake in that body corporate or majority stake in the ultimate holding company of such body corporate member

·  If the member is a HUF – the individual who is the Karta of the HUF

· If the member is a partnership entity – the individual is a partner or holding a majority stake in a body corporate which is a partner or majority stake in the ultimate holding company of such body corporate which is a partner

·  If the member is a trust – the individual who is a trustee (discretionary or charitable trust), a beneficiary (Specific trust), Author/settlor (revocable trust)

· If the member is a pooled investment vehicle or an entity controlled by the pooled investment vehicle – the individual who is a general partner or investment manager or Chief Executive Officer where the investment manager of such pooled vehicle is a body corporate or a partnership entity

What needs to be done?

· To send notice of this requirement to all non-individual members who hold not less than 10% of its Shares, or voting rights, or right to receive or participate in the dividend or any other distribution payable in a financial year seeking information in Form BEN-4.

·  The company to identify any such individual who is an SBO and obtain a declaration of significant beneficial ownership in Form No. BEN-1.

 Non-applicability of this requirement:

These rules shall not apply if the shares of a reporting company are held by the following entities:

· Investor Education and Protection Fund

· Holding Reporting Company of the Reporting Company (however, details of such holding company have to be filed in Form No. BEN-2)

·  the Central Government, State Government or any local Authority

·  any entity controlled by the Central Government or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments;

· Investment Vehicles such as mutual funds, alternative investment funds (AIF), Real Estate Investment Trusts (REITs), Infrastructure Investment Trust (InVITs) regulated by the Securities and Exchange Board of India;

· Investment Vehicles regulated by Reserve Bank of India, or Insurance Regulatory and Development Authority of India, or Pension Fund Regulatory and Development Authority.

(a) Form BEN-1

(b) Form BEN-2

(c) Form BEN-4

 

(a) Form BEN-1- on or before 9 May 2019

(b) Form BEN-2- within 30 days from the date of receipt of Form BEN-1

(c) Form BEN-4- To be sent to seek information in Form BEN-1.

 

2. Companies (Incorporation) Amendment Rules, 2019[2] Applicability:

Every Company incorporated on or before the 31 December 2017 shall file the particulars of the Company and its registered office, in e-Form INC-22A_ACTIVE (Active Company Tagging Identities and Verification)

Pre-requisites

The Company before filing Form INC 22A Active shall ensure that it has filed the following pending forms as may be applicable:

(a) Form AOC-4- Filing of Financial statements for the previous financial year;

(b) Form MGT 7- Filing of Annual Return (e-Form MGT-7) for the previous financial year;

(c) Form DIR 12 & MR 1 as may be applicable for the purpose of appointment of whole-time company secretary. This is mandatory for the Companies whose paid-up capital is more than 5 Crore.

Non-Applicability

The following companies are not required to filed Form INC 22A Active:

1.    Companies which have been Struck off or

2.    Under the process of striking off or

3.    Under Liquidation or

4.    Amalgamated or

5.    Dissolved

Consequences of non-filing

The Company will be marked as Active non-compliant and MCA would not allow filing the following forms unless the Form INC-22A Active is filed:

a.   Form SH-7 (Change in Authorised Capital)

b.   Form PAS-3 (Change in Paid-up Capital)

c.   Form DIR-12 (Changes in Director except for cessation)

d.   Form INC-22 (Change in Registered office)

e.   Form INC-28 (Amalgamation, De-merger)

Form INC 22A Active On or before 25 April 2019.
3. The requirement of filing of MSME Form-I[3]  

With a view to support the growth of and to protect the interest of MSME’s, the MCA has issued a notification dated 22 January 2019, mandating all the Specified Companies[4], whose supply of goods or services from registered MSME and the respective payments to these registered MSME suppliers exceed 45 days from the date of acceptance or the date of deemed acceptance of the goods or services, shall file the Initial Return in MSME Form I with Ministry of Corporate Affairs

 Details required to be collected from the MSME suppliers before filing the return with the MCA

Following details are required to be collected from MSME for the purpose of filing the said form:

1. Certificate of Registration issued by the Ministry of Micro Small and Medium Scale Enterprises to the MSME to ensure that the concerned entity is an MSME.

2. Financial years to which the amount relates

3. Name of the MSME

4. PAN of MSME

5. Amount due

6. Date from which amount is due

7. Total outstanding amount due as on date of notification of this order (i.e. 22 January 2019)

8.    Reason for delay

Filing of Half yearly return

Every company who receive goods or services from MSME and whose payments to MSME suppliers exceed forty-five days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of the MSME Act 2006 shall file the half-yearly returns for the period ended April to September and October to March every year.

 

MSME Form I Within 30 days from the date of Notification of the said Form[5]

 

Due date for filing half yearly return

1.    For the period from April to September- On or before 31st October every year

2.    For the period from October to March- on or before 30th April of every year

4. The Companies (Acceptance of Deposits) Amendment Rules, 2019[6] Every Company shall have to file Form DPT 3 providing particulars of transaction that has not been considered as deposit[7] or both. Thus, all companies other than Government Companies will have to file Form DPT-3 also for transactions that are listed under Deposit Rules.

 Further the companies in its annual financial statements, are required to disclose about the money received from Directors (in case of companies other than private companies) and money received from Directors or relatives of Directors (in case of private companies only).

 

Form DPT 3 On or before 22 April 2019

Author: Ashwin Bhat, Junior Partner at NovoJuris Legal.

[1] Source: http://www.mca.gov.in/Ministry/pdf/CompaniesOwnersAmendmentRules_08020219.pdf

[2] Source: http://www.mca.gov.in/Ministry/pdf/CompaniesIncorporationAmendmentRules_21022019.pdf

[3] Source: http://www.mca.gov.in/Ministry/pdf/MSMESpecifiedCompanies_22012019.pdf

[4] ‘Specified companies’ means, all the Companies who receives goods or services from MSME and if the payment is not made within 45 days from the date of acceptance or the date of deemed acceptance of goods or services.

[5] MSME Form I is yet to be notified by the MCA

[6] Source: http://www.mca.gov.in/Ministry/pdf/AcceptanceDepositsAmendmentRule_22012019.pdf

[7] Transactions provided in Rule 2 of the Deposit Rules

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