India:
Summary Of New Amendments Under The Companies Act 2013 In 2019 And Its Action Points
01 March 2019
NovoJuris Legal
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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):
- Changes in Companies (Significant
Beneficial Owners) Rules 2018 to identify individuals/entities
having significant control over the affairs of a company
- 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.
- 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.
- 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
file the transactions that has not been considered as deposit or
both under the Companies (Acceptance of Deposits) Rules 2014
(Deposit Rules).
The action points under these notifications is as below:
Sl. No |
Particulars |
Summary of
Notification |
Form to be
filed |
Due
date |
1. |
The Companies
(Significant Beneficial Owners) Amendment Rules 20191 |
Who shall
disclose?
Every individual, who acting alone or together, or through one or
more persons or trust, possesses 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) in 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 holds or acquires 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 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), 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.
|
- Form BEN-1
- Form BEN-2
- Form BEN-4
|
- Form BEN-1- on or before 9 May 2019
- Form BEN-2- within 30 days from the date of receipt of Form
BEN-1
- Form BEN-4- To be sent to seek information in Form BEN-1.
|
2. |
Companies
(Incorporation) Amendment Rules, 20192 |
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:
- Form AOC-4- Filing of Financial statements for the previous
financial year;
- Form MGT 7- Filing of Annual Return (e-Form MGT-7) for the
previous financial year;
- 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:
- Companies which have been Struck off or
- Under process of striking off or
- Under Liquidation or
- Amalgamated or
- Dissolved
Consequences of non-filing
The Company will be marked as Active
non-compliant and MCA would not allow to file the
following forms unless the Form INC-22A Active is filed:
- Form SH-7 (Change in Authorised Capital)
- Form PAS-3 (Change in Paid up Capital)
- Form DIR-12 (Changes in Director except cessation)
- Form INC-22 (Change in Registered office)
- Form INC-28 (Amalgamation, De-merger)
|
Form INC 22A Active |
On or before 25 April
2019. |
3. |
Requirement of filing of
MSME Form-I3 |
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 Companies4, 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:
- 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.
- Financial years to which the amount relates
- Name of the MSME
- PAN of MSME
- Amount due
- Date from which amount is due
- Total outstanding amount due as on date of notification of this
order (i.e. 22 January 2019)
- 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 Form5
Due date for filing half yearly return
- For the period from April to September- On or before 31st
October every year
- For the period from October to March- on or before 30th April
of every year
|
4. |
The Companies
(Acceptance of Deposits) Amendment Rules, 20196 |
Every Company shall have
to file Form DPT 3 providing particulars of transaction that
has not been considered as deposit7 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 |
Footnotes
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 get supplies
of goods or services from MSME and the payment not made with-in 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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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