Companies Amendment Act 2018 -

MCA has vide its notification dated 13th June, 2018 allowed commencement of amendment to five sections of the Companies Act, 2013, vide Companies (Amendment) Act, 2018. These amendments come into effect from 13th June, 2018. These are:

section 90: this section has been substituted by a new section in toto. This deals with significant beneficial ownership for which separate rules have been notified also. This section is basically to find out who is the actual owner of shares on which beneficial interest lies not with the person whose name is entered in the register of members but with somebody else. This is important from the point of view of compliance thereto in respect of individuals or one or two individuals who are having beneficial interest in shares of the company.

section 93: Deletion of this section. This section required promoters to give details of shares held by them and top ten promoters and any change made therein to the extent of two percent or more shareholding to be reported to the Ministry in the prescribed format. This was a cumbersome section and rightly done away with.

section 94: this section deals with place of keeping and inspection of registers & records etc. There was a proviso which said that the annual returns may also be kept at a place other than the registered office in India in a city where more than 1/10th of the total number of members reside, if approved by a special resolution passed at a general meeting. There was a requirement that the ROC be given an advance copy of the proposed special resolution. This requirement of providing advance copy of the special resolution to the ROC has been done away with. 

Sub-Section (3) of section 94 provided that any member, debenture holder, other security holder or beneficial owner or any other person may (a) take extracts from any register or index or return without payment of fee, or (b) require a copy of such register or entries thereon or return on payment of such fees as may be prescribed.

Now a proviso has been added to this sub-section which says that - such particulars of the register or index or return as may be prescribed shall not be available for inspection under sub-section (2) or taking extracts or copies under this sub-section. 

Section 96- This section pertains to annual general meeting. Now a provision has been added in sub-section (2) that the annual general meeting of an unlisted company may be held at any place in India, provided consent is given in writing or by electronic mail by all the members in advance. 

So, this is is a liberalised move to allow private companies and unlisted public companies to hold annual general meeting at any place in India, provided consent is taken thereof in advance.

Section 216: This section pertains to investigation of ownership of the company. Pursuant to the enactment of the new section 90 regarding significant beneficial ownership, a clause has been added empowering central government to appoint one or more inspectors to investigate and report on matters relating to the company or persons "who have or had beneficial interest in shares of a company or who are or have been beneficial owners or significant beneficial owner of a company"

ECB reporting - ECB2

RBI has vide its circular dated 7th June, 2018 modified the monthly ECB-2 in respect of external commercial borrowings by capturing hedging of ECBs in the ECB2 return. Details of hedging in part E.1 of the return and foreign exchange earnings & expenditure in part E.2 of the return to be furnished in addition to the existing details in ECB-2

Gist of RBI circular given below:

Attention of Authorized Dealer Category I (AD Category I) banks is invited to Annex III of Part V of Master Direction No.18/2015-16 dated January 01, 2016 on Reporting under Foreign Exchange Management Act, 1999, as amended from time to time. The said Master Direction, inter alia, stipulates the reporting arrangement for ECBs through ECB-2 Return.

2. It has been decided to capture the details of the hedges for ECBs through a simplified format of ECB 2 Return. Part E of the Return, accordingly, is modified so as to include only standard information on hedged/unhedged ECB exposure (Annex). Details of hedging in Part E.1 of the Return and foreign exchange earnings and expenditure in Part E.2 of the Return should be furnished in additive format. Further, for reporting in respect of natural hedge, provisions contained in paragraph 2 (iii) of A.P. (DIR Series) Circular No. 15 dated November 07, 2016 should be followed.

3. Revised monthly reporting format of ECB 2 Return would be applicable from month-end June 2018. It is reiterated that any lapse at the time of reporting through this return and / or failure to adhere to the time line of its submission and / or any lapse at the time of reporting through Form 83 is a contravention of the provision of Foreign Exchange Management Act, 1999 (42 of 1999).

4. AD Category - I banks may bring the contents of this circular to the notice of their constituents and customers. The aforesaid Master Direction No. 18 dated January 01, 2016 is being updated to reflect the changes.

5. The directions contained in this circular have been issued under sections 10(4) and 11(2) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11296&Mode=0

Foreign Investment in India - Reporting

RBI circular dated 7th June, 2018 on the above subject - important for compliance by companies accepting foreign investment in India.

As announced in the First Bi-monthly Monetary Policy Review dated April 5, 2018, Reserve Bank, with the objective of integrating the extant reporting structures of various types of foreign investment in India, will introduce a Single Master Form (SMF). The SMF would be filed online.

2. SMF would provide a facility for reporting total foreign investment in an Indian entity {as defined in Foreign Exchange Management (Transfer or issue of security by a person resident outside India) Regulations 2017, dated November 7, 2017}, as also investment by persons resident outside India in an Investment Vehicle.

3. Prior to the implementation of the SMF, Reserve Bank would provide an interface to the Indian entities, to input the data on total foreign investment in a specified format. The interface will be available on RBI website www.rbi.org.in from June 28, 2018 to July 12, 2018. Indian entities not complying with this pre-requisite will not be able to receive foreign investment (including indirect foreign investment) and will be non-compliant with Foreign Exchange Management Act, 1999 and regulations made thereunder.

4. The entities may be in readiness with the requirements to be provided in the Entity Master at Annex 1. The format of the SMF is at Annex 2. The final form, when hosted, will be available in the Master Direction-Reporting under FEMA, 1999.

5. AD Category-I banks may bring the contents of this circular to the notice of their customers / constituents concerned.

6. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act (FEMA), 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

RBI circular is available at
https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11297&Mode=0

Liberalised Remittance Scheme

RBI has vide its circular dated 19th June, 2018 mandated that furnishing of PAN is necessary document while allowing all remittances outside India under the Liberalised Remittance Scheme (LRS). Hitherto, for remittances under US$25,000/- PAN was not mandatory, Now it has become mandatory for any amount being remitted under the Scheme.

Gist of RBI circular is given below:

Please refer to paragraph 18 of the Statement on Developmental and Regulatory Policies of the Second Bi-monthly Monetary Policy Statement for 2018-19released on June 6, 2018. As indicated therein, it has been decided that furnishing of Permanent Account Number (PAN), which hitherto was not to be insisted upon while putting through permissible current account transactions of up to USD 25,000, shall now be mandatory for making all remittances under Liberalised Remittance Scheme (LRS).

2. Further, in the context of remittances allowed under LRS for maintenance of close relatives, it has been decided, in consultation with Government, to align the definition of ‘relative’ with the definition given in Companies Act, 2013 instead of Companies Act, 1956.

3. Master Direction No. 7/2015-16 dated January 01, 2016 on LRS is being updated simultaneously to reflect the above changes.

4. The directions contained in this circular have been issued under Sections 10(4), 11(1) and 11(2) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions/approvals, if any, required under any other law.

https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11309&Mode=0

Bank customer service to pensioners

RBI circular dated 21st June, 2018 on this subject.

Please refer to our circular no.DGBA.GAD.H-3085/45.01.001/2008-09 dated October 1, 2008 on the captioned subject.

2. We are receiving complaints from various quarters that pensioners are not being treated with due consideration by bank officials, specifically the old pensioners, when they come to the branches for pension related transactions.

3. Thus, all agency banks disbursing pension are advised to provide considerate and sympathetic customer service to the pensioners, specially to those pensioners who are of old age.

https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11310&Mode=0

SEBI order reg appointment of Directors by listed companies

Bombay Stock Exchange (BSE) has issued a circular dated 20th June, 2018 wherein it has referred to the SEBI order dated 14th June, 2018 debarring entities/ individuals from accessing the capital markets and/ or restraining from holding position of a director in listed companies.

1.      SEBI has issued certain directions for the Listed Companies which are as follows:

·         Listed companies and its Nomination Committee while considering a person for appointment as director shall verify that the said person is not debarred from holding the office of director pursuant to any SEBI order.  

·         The Listed Companies shall, while informing the Exchange through corporate announcements for appointment of Director, specifically affirm that the Director being appointed is not debarred from holding the office of director by virtue of any SEBI order or any other such authority.

Non-inclusion of such fact will be regarded as inadequate submission and the same would be subject to action as deemed fit under Regulation 30 of the LODR.  

·         In case an existing director is restrained from acting as a director by virtue of any SEBI order or any other such authority, the director shall voluntarily resign with immediate effect.

Failing which the listed entity shall initiate the process of removal of such director in terms of relevant sections of the Companies Act, 2013, and inform the Exchange about the same.  

https://www.bseindia.com/corporates/Displaydata.aspx?Id=d30893b5-8e5e-4842-a37d-da3e595ff58c&Page=cir

with inputs from my team member Amita Jadav. 

SEBI bans physical transfer of shares

SEBI has vide its notification dated june 8, 2018 effectively banned physical transfer of shares. This has been made via an amendment to the Listing Obligations and Disclosure Requirements, Regulations, 2015

Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Fourth Amendment) Regulations, 2018

1.      These regulations shall come into force on the one hundred and eightieth day from the date of its   publication in the Official Gazette i.e. from 5^th Day of December, 2018

2.      Requests for effecting transfer of securities shall not be processed unless the securities are held in the dematerialized form with a depository.

o   This means with effect from 5^th December, 2018 all the securities which are held in physical from shall be prohibited for transfer and shall be required to be done compulsorily in dematerialized form

o   Securities shall only be processed if it is in dematerialized form

*However this shall not affect the transmission or transposition of shares in physical form

3.      With effect of above following shall be omittedfrom Schedule 7 i.e. Transfer of securities

(For securities market transactions and/or for off-market or private transactions involving transfer of shares in physical form, the transferee(s) as well as transferor(s) shall furnish copy of PAN card to the listed entity for registration of such transfer of securities.)

4.      With effect of change in regulation 40(1) the following change in 7(2) shall take place:

The listed entity shall ensure that all activities in relation to both physical and electronic share transfer facility are maintained either in house or by Registrar to an issue and share transfer agent registered with the Board

https://www.sebi.gov.in/legal/regulations/jun-2018/securities-and-exchange-board-of-india-listing-obligations-and-disclosure-requirements-fourth-amendment-regulations-2018_39263.html

* with inputs from my team member Amita Jadav.