Tag Archives: company secretary

ancillary services at IFSCA

IFSCA has vide its circular dated 10th February, 2021 provided detailed guidelines regarding providing of ancillary services at its GIFT- IFSCA. Ancillary services will mean anything from legal, compliance, secretarial, to auditing, accounting, book-keeping, taxation, professional & management consultancy services, trustee management, administration, asset management etc.

The requirements are detailed as to what the service providers can do, their duties and obligations etc. and the responsibilities of the entities in IFSCA. Gist of the regulations are given below:

  1. Considering the importance of professional and other service providers for the development of financial products, financial services and financial institutions in the International Financial Services Centres (IFSC), a framework for enabling ancillary services has been provided for as under:
    A. Applicability:
    This framework shall be applicable to all ancillary service providers (hereinafter referred to as “service provider(s)”) engaged in one or more permissible ancillary services within the IFSC.
    B. Definition:
    Ancillary services shall mean those services which directly or indirectly aid, help, assist or strengthen or are attendant upon or connected with the services, as detailed under subclauses (i) to (xi) of clause (e) of sub- section (1) of section 3 of the IFSCA Act, 2019.
    C. Permissible ancillary services:
    The service providers may engage in any one or more of the following activities:
    (i) Legal, Compliance and Secretarial;
    (ii) Auditing, Accounting, Bookkeeping and Taxation Services;
    (iii) Professional & Management Consulting Services;
    (iv) Administration, Assets Management Support Services and Trusteeship Services;
    (v) Any other services as approved by IFSCA from time to time.
    The detailed activities of such permissible ancillary services are detailed at Annexure – I.
    D. Eligibility Conditions:
    The following entities are eligible to act as a service provider so as to provide permissible ancillary services pertaining to activities in relation to financial products, financial services and financial institutions in the IFSC:
    (i) Any existing or newly incorporated entity set up in the IFSC or
    (ii) Any Indian or foreign incorporated entity by establishing a branch or a subsidiary
    E. Service Recipients:
    Service providers can provide permissible services to any one or more of the following:
    (i) Entity(ies) set up in the IFSC;
    (ii) Financial services entities from foreign jurisdictions for various activities in the IFSCs in India or other related activities overseas;
    (iii) Indian entities who propose to open, set up or carry out operations in IFSCs or foreign jurisdiction, provided consideration is received in freely convertible foreign currency.
    F. Application Process:
    An applicant desirous to act as a service provider and eligible under this framework to provide permissible ancillary services shall apply to IFSCA in the application form specified at Annexure-II.
    G. Currency for conduct of business:
    Service providers shall transact in freely convertible foreign currency only. However, the service providers may defray their administrative expenses in INR by maintaining an INR account.
    H. Maintenance of Books of Accounts, Records and Documents
    Every service provider shall maintain its books of accounts, records, and documents in such foreign currency, as may be declared at the time of making an application.
    I. Submissions of Report / Information
    (i) Every service provider shall furnish the following information to the IFSCA:
    a. Annual financial statements for the entity registered.
    b. Confirmation of compliance with the regulations, circulars, guidelines and/or directions as issued by the International Financial Services Centres Authority from time to time.
    c. Details of material regulatory action, if any
    (ii) Every service provider authorized by the IFSCA shall submit the financial information to the IFSCA in US Dollar, unless otherwise specified by the IFSCA.
    (iii) The IFSCA from time to time may call for any information, documents, or records as it may deem necessary from the service provider.
    J. Compliance with other requirements
    The service providers shall comply with all the applicable and relevant regulatory obligations, standards, policies and guidelines as issued by any other competent authority(ies).
    K. Action in case of default
    If a service provider fails to comply with any of the requirement under this framework and/or other directions and guidelines issued from time to time, the IFSCA may take appropriate action as it deems fit, after giving a reasonable opportunity to make its written submissions.
    L. Fees
    The applicant / registered entity shall pay to IFSCA such fees and charges as specified from time to time.
    M. Power to remove difficulties, specify procedures and issue clarifications
    In the event of any difficulty in giving effect to this framework or to ensure effective operation of this framework, the IFSCA may specify the necessary norms, procedures, processes, manners and may also provide relaxations, by way of guidelines or circulars.

https://ifsca.gov.in/Viewer/Index/143

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CS regulations

Govt. of India has vide its notification dated 17th January 2020 approved the following amendments to the Company Secretaries Regulations 1982

1) Introduction of entrance test (CSEET) in place of Foundation program for CS students

2) Introduction of uniform training structure of 24 months for the students after the Executive program;

3) Gap of 6 months between enrolment and examinations (for both Executive & Professional) for all modules and gap of 4 months between enrolment and examinations for single group or modules;

4) Introduction of Secretarial Executive Certificate for the Executive passed students;

5) Provision of Specialised, Advanced and Refresher course for the members;

6) Orientation program for the members for issuance of Certificate of Practice;

7) Pre-examination tests for enrolment into examinations.

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company secretary

MCA has vide amendment dated 3rd January, 2020 to the Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014 allowed private limited companies to appoint whole time company secretary when their paid up share capital exceeds Rs.10 crores. Hitherto the limit was Rs.5 crores.

Also it has mandated a secretarial audit report to be carried pursuant to section 203 of the Companies Act, 2013 to all companies (including private companies) who have  borrowings from banks or financial institutions exceeding Rs.100 crores. The threshold limit of Rs.100 crores to be seen from an audited financial statement. So it appears more or less at the year end status.

The circular is available at the MCA site.

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Revamp of Bankruptcy Laws in India

PIB Press Release dated 4th November 2015

Summary of the Recommendations of the Bankruptcy Law Reforms Committee (BLRC)  

Following is the Summary of the Recommendations of the Bankruptcy Law Reforms Committee (BLRC)

The Report of the BLRC is in two parts:

  1. Rationale and Design/Recommendations;
  2. A comprehensive draft Insolvency and Bankruptcy Bill covering all entities.

The draft Bill has consolidated the existing laws relating to insolvency of companies, limited liability entities (including limited liability partnerships and other entities with limited liability), unlimited liability partnerships and individuals which are presently scattered in a number of legislations, into a single legislation. The committee has observed that the enactment of the proposed Bill will provide greater clarity in the law and facilitate the application of consistent and coherent provisions to different stakeholders affected by business failure or inability to pay debt and will address the challenges being faced at present for swift and effective bankruptcy resolution. The Bill seeks to improve the handling of conflicts between creditors and debtors, avoid destruction of value, distinguish malfeasance vis-a-vis business failure and clearly allocate losses in macroeconomic downturns.

The major recommendations of the Report are as follows:

  1. Insolvency Regulator: The Bill proposes to establish an Insolvency Regulator to exercise regulatory oversight over insolvency professionals, insolvency professional agencies and informational utilities.
  2. Insolvency Adjudicating Authority: The Adjudicating Authority will have the jurisdiction to hear and dispose of cases by or against the debtor. 
  1. The Debt Recovery Tribunal (“DRT”) shall be the Adjudicating Authority with jurisdiction over individuals and unlimited liability partnership firms. Appeals from the order of DRT shall lie to the Debt Recovery Appellate Tribunal (“DRAT”).
  1.  The National Company Law Tribunal (“NCLT”) shall be the Adjudicating Authority with jurisdiction over companies, limited liability entities. Appeals from the order of NCLT shall lie to the National Company Law Appellate Tribunal (“NCLAT”).
  2.  NCLAT shall be the appellate authority to hear appeals arising out of the orders       passed by the Regulator in respect of insolvency professionals or information utilities.

iii.                Insolvency Professionals: The draft Bill proposes to regulate insolvency professionals and insolvency professional agencies. Under Regulator’s oversight, these agencies will develop professional standards, codes of ethics and exercise a disciplinary role over errant members leading to the development of a competitive industry for insolvency professionals.

  1. Insolvency Information Utilities: The draft Bill proposes for information utilities which would collect, collate, authenticate and disseminate financial information from listed companies and financial and operational creditors of companies. An individual insolvency database is also proposed to be set up with the goal of providing information on insolvency status of individuals.
  2. Bankruptcy and Insolvency Processes for Companies and Limited Liability Entities: The draft Bill proposes to revamp the revival/re-organisation regime applicable to financially distressed companies and limited liability entities; and the insolvency related liquidation regime applicable to companies and limited liability entities.
  1. The draft Bill lays down a clear, coherent and speedy process for early identification of financial distress and revival of the companies and limited liability entities if the underlying business is found to be viable.
  2. The draft Bill prescribes a swift process and timeline of 180 days for dealing with applications for insolvency resolution. This can be extended for 90 days by the Adjudicating Authority only in exceptional cases. During insolvency resolution period (of 180/270 days), the management of the debtor is placed in the hands of an interim resolution professional/resolution professional.
  3. An insolvency resolution plan prepared by the resolution professional has to be approved by a majority of 75% of voting share of the financial creditors. Once the plan is approved, it would require sanction of the Adjudicating Authority. If an insolvency resolution plan is rejected, the Adjudicating Authority will make an order for the liquidation.
  4. The draft Bill also provides for a fast track insolvency resolution process which may be applicable to certain categories of entities. In such a case, the insolvency resolution process has to be completed within a period of 90 days from the trigger date. However, on request from the resolution professional based on the resolution passed by the committee of creditors, a one-time extension of 45 days can be granted by the Adjudicating Authority. The order of priorities [waterfall] in which the proceeds from the realisation of the assets of the entity are to be distributed to its creditors is also provided for.
  1.             Bankruptcy and Insolvency Processes for Individuals and Unlimited Liability Partnerships:The draft Bill also proposes an insolvency regime for individuals and unlimited liability partnerships also. As a precursor to a bankruptcy process, the draft Bill envisages two distinct processes under this Part, namely, Fresh Start and Insolvency Resolution.
  2.               In the Fresh Start process, indigent individuals with income and assets lesser than specified thresholds (annual gross income does not exceed Rs. 60,000 and aggregate value of assets does not exceed Rs.20,000) shall be eligible to apply for a discharge from their “qualifying debts” (i.e. debts which are liquidated, unsecured and not excluded debts and up to Rs.35,000). The resolution professional will investigate and prepare a final list of all qualifying debts within 180 days from the date of application. On the expiry of this period, the Adjudicating Authority will pass an order on discharging of the debtor from the qualifying debts and accord an opportunity to the debtor to start afresh, financially.
  1.             In the Insolvency Resolution Process, the creditors and the debtor will engage in negotiations to arrive at an agreeable repayment plan for composition of the debts and affairs of the debtor, supervised by a resolution professional.
  1. The bankruptcy of an individual can be initiated only after the failure of the resolution process. The bankruptcy trustee is responsible for administration of the estate of the bankrupt and for distribution of the proceeds on the basis of the priority.

vii.   Transition Provision: The draft Bill lays down a transition provision during which the Central Government shall exercise all the powers of the Regulator till the time the Regulator is established. This transition provision will enable quick starting of the process on the ground without waiting for the proposed institutional structure to develop.

      viii.             Transfer of proceedings: Any proceeding pending before the AAIFR or the BIFR under the SICA, 1985, immediately before the commencement of this law shall stand abated. However, a company in respect of which such proceeding stands abated may make a reference to Adjudicating Authority within 180 days from the commencement of this law

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Quality of Service under Digital Cable TV systems

TRAI has issued an advisory dated 1/10/2015 to the MSOs under the Quality Service Regulation for DAS (Digital Addressable Cable TV Systems) that every MSO or its linked LCO, as the case maybe, shall within 24 hours of the receipt of complaint pertaining to malfunctioning of a set top box from a subscriber ensure that the set top box is repaired or replaced with a new Set Top Box if it is covered within the warranty or it has been acquired by the subscriber on hire purchase scheme or on rental basis. These standards are covered in the “STandards of Quality of Service (Digital Addressable Cable TV Systems), REgulations, 2012. TRAI suggests that for adhering to the 24 hours deadline, spare set top boxes may be provided by the MSOs to the LCOs in their jurisdiction.

MCOs are also requested to lay down proper communication procedures to register complaints through LCOs and get them redressed on priority basis.

TRAI circular is available at the TRAI site.

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Regularisation of assets held abroad pursuant to Black Money Act

RBI has vide its notification dated 30th September, 2015 laid down the modalities for regularisation of assets held abroad and for which declaration has been to the competent authority pursuant to the Black Money Act. The salient features of its notificaton is as below:

a) No proceedings shall lie under the Foreign Exchange Management Act, 1999 (FEMA) against the declarant with respect to an asset held abroad for which taxes and penalties under the provisions of Black Money Act have been paid.

b) No permission under FEMA will be required to dispose of the asset so declared and bring back the proceeds to India through banking channels within 180 days from the date of declaration.

c) In case the declarant wishes to hold the asset so declared, she/ he may apply to the Reserve Bank of India within 180 days from the date of declaration if such permission is necessary as on date of application. Such applications will be dealt by the Reserve Bank of India as per extant regulations. In case such permission is not granted, the asset will have to be disposed of within 180 days from the date of receipt of the communication from the Reserve Bank conveying refusal of permission or within such extended period as may be permitted by the Reserve Bank and proceeds brought back to India immediately through the banking channel.

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membership of commodity derivatives exchanges

SEBI has vide its circular dated 29th September, 2015 announced that existing members of commodities derivatives exchanges have to apply for registration of its membership to SEBI within a period of 3 months from 28th September, 2015, the date on which Forwards Market Commission gave up its regulatory power to SEBI.

The members have to satisfy the eligibility requirements for membership, as per the rules, regulations and requirements of the exchanges of which it is a member.

Such existing members of commodity derivatives exchanges shall be required to meet the eligibility criteria as specified under Rule 8 of Securities Contract (Regulation) Rules, 1957 (hereinafter referred to as SCRR), within a period of one year from the date of transfer and vesting of rights and assets of the Forward Market Commission (FMC) with SEBI i.e., by September 28, 2016.

Any person desirous of becoming a member of any commodity derivatives exchange(s), on or after September 28, 2015, shall have to meet the eligibility criteria to become a member of an exchange and conditions of registration, as specified in SCRR and Stock Broker Regulations, respectively.

The application for registration shall be made in the manner prescribed in the Stock Broker Regulations, through the commodity derivatives exchange, of which it holds membership, in the prescribed form, along with the applicable fees. The application shall be accompanied by Additional Information as prescribed vide SEBI Circular No. SMD/POLICY/CIR-11/98 dated March 16, 1998.

The minimum net worth specified for members of commodity derivatives exchanges, as per Stock Broker Regulations, shall have to be computed as per the formula prescribed vide SEBI Circular No. FITTC/DC/CIR-1/98 dated June 16, 1998.

It is clarified that, “business in goods related to the underlying” and/ or “business in connection with or incidental to or consequential to trades in commodity derivatives”, by a member of a commodity derivatives exchange, would not be disqualified under Rule 8(1)(f) and Rule 8(3)(f) of the Securities Contract (Regulation) Rules, 1957.

Source: SEBI circular no. MIRSD/4/2015 dated 29th september, 2015

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New MCA E-forms

MCA has released the much awaited new e-forms for filing the annual audited accounts and the annual return. These forms i.e. AOC-4 replaces forms 23ac & 23aca and MGT-7 replaces form 20B which was the annual return form under the old Companies Act, 1956. MCA has also given relaxation in additional fees penalty for companies upto 31/10/2015, vide its circular no. 10/2015 dated 13th July, 2015. The new e-forms are available on the MCA site.

Further in case of companies with paid up share capital of Rs.10 crores or more OR turnover of Rs.50 crores or more, the form MGT-7 should be accompanied with a certificate from the Practising Company Secretary in form MGT-8.

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Private companies allowed to accept monies from relatives of directors

Vide an amendment to the Companies (Acceptance of Deposits), Rules, 2014 dated 15th September, 2015, the Ministry of Corporate Affairs has now allowed private companies to accept loans from relatives of directors provided the relatives give a written declaration that the loans are being given from out of their own funds and not borrowed from someone else. The company is required to mention the details of such loans taken in the Annual Report. 

Earlier vide an amendment in June 2015, private companies were allowed to take loans from members not exceeding 100% of its paid up capital and free reserves. Here also the company is required to file particulars with the Registrar of Companies.

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XBRL Rules, 2015

Ministry of corporate affairs has released the Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Rules, 2015 superceding the 2011 Rules on the same subject.

The coverage of companies to be covered by XBRL rules is the same as in the 2011 Rules i.e.

(i) all companies listed with any Stock Exchange(s) in India and their lndian subsidiaries;

or (ii) all companies having paid up capital of rupees five crote or above;

(iii) all companies having turnover of rupees hundred crore or above; or

(iv) all companies which were hitherto covered under the Companies (Filing ot l)ocuments and Forms in Extensible Business Reporting Language) Rules, 2011:

New form specified for the purpose is AOC-4 XBRL

Companies in Banking, Insurance, Power Sector and Non Banking Financial Companies are exempted from filing documents under the XBRL Rules.

Cost Audit Report is also required to be filed in the XBRL Format in the appropriate form i.e. CRA-4.

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CCI order on Hyundai – Rs.420 crores penalty

The Competition Commission of India (‘the Commission’), in its order dated 27.7.15 has found 3 Car Companies, namely, Hyundai Motor India Ltd. (Hyundai), Mahindra Reva Electric Car Company (P) Ltd. (Reva) and Premier Ltd. (Premier) to be in contravention of the provisions of the Competition Act, 2002 (‘the Act’). The instant order is in continuation of Commission’s main order in the same case dated 25.08.2014 vide which the Commission had inter alia imposed penalties on fourteen out of the seventeen car companies under Section 27 of the Act.

The order against Hyundai has remained pending pursuant to the writ petition filed by it in the Madras High Court challenging the jurisdiction of the Commission. In regards, Reva and Premier, the order remained pending because of the applications filed by them requesting for striking out of their names from the array of parties. Accordingly, the Commission decided to pass a separate order against these three car companies after affording them reasonable opportunity to make their submissions in respect of the findings of the Director General (DG) in its investigation.

After taking into account the findings of the DG and the detailed submissions by these three car companies, the Commission found their conduct to be in violation of the provisions of section 3(4) of the Act with respect to their agreements with local Original Equipment Suppliers (OESs) and agreements with authorized dealers whereby they imposed absolute restrictive covenants and completely foreclosed the aftermarket for supply of spare parts and other diagnostic tools. Further the Commission found that the said car companies, who were found to be dominant in the aftermarkets for their respective brands, abused their dominant position under section 4 of the Act. The car companies were found to be indulging in practices resulting in denial of market access to independent repairers as the latter were debilitated to provide services in the aftermarket for repair and maintenance of cars for want of genuine spare parts. Further, these car companies were also found to be using their dominant position in the market for spare parts and diagnostic tools to protect their market for repair services, thereby distorting fair competition.

The Commission has prescribed the same corrective measures to Hyundai, Reva and Premier as were prescribed in the main order dated 25.08.2014 to infuse competition in the after sales market in the automobile sector. To reiterate, the order directed the car companies to cease and desist from indulging in conduct which has been found to be in contravention of the provisions of the Act. The car companies were also directed to adopt appropriate policies which shall allow them to put in place an effective system to make the spare parts and diagnostic tools easily available in the open market to customers and independent repairers. Further, the Commission directed the car companies to not to put any restrictions or impediments on the operation of independent repairers/garages.

The Commission imposed a penalty calculated at the rate of 2% of its average turnover on Hyundai amounting to Rs. 420.2605 crores (Rupees Four Hundred and Twenty Crores, Twenty Six Lakhs and Five Thousand only) which is to be deposited within 60 days of receipt of the order. Considering the mitigating factors that worked in favour of Reva and Premier, the two car companies were absolved from paying monetary penalty.

Detailed order can be seen at Commission’s website http://www.cci.gov.in

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Digitally signed invoices in excise and service tax

CBEC has issued a notification no. 18/2015 dated 6th July, 2015 regarding procedure for digitally signed invoices in excise and service tax. The salient features of the notification are :

1. Every assessee proposing to use digital signature shall use Class 2 or Class 3 Digital Signature Certificate duly issued by the Certifying Authority in India.

  1. (i) Every assessee proposing to use digital signatures shall intimate the following details to the jurisdictional Deputy Commissioner or Assistant Commissioner of Central Excise, at least fifteen days in advance:
  2. a) name, e-mail id, office address and designation of the person authorised to use the digital signature certificate;
  3. b) name of the Certifying Authority;
  4. c) date of issue of digital certificate and validity of the digital signature with a copy of the certificate issued by the Certifying Authority along with the complete address of the said Authority:

Provided that in case of any change in the details submitted to the jurisdictional Deputy Commissioner or Assistant Commissioner, complete details shall be submitted afresh within fifteen days of such change.

(ii)  Every assessee already using digital signature shall intimate to the jurisdictional Deputy Commissioner or Assistant Commissioner of Central Excise the above details within fifteen days of issue of this notification.

  1. Every assessee who opts to maintain records in electronic form and who has more than one factory or service tax registration shall maintain separate electronic records for each factory or each service tax registration.
  1. Every assessee who opts to maintain records in electronic form, shall on request by a Central Excise Officer, produce the specified records in electronic form and invoices through e-mail or on a specified storage device in an electronically readable format for verification of the authenticity of the document and the request for such records and invoices shall be specified in the letter or e-mail by the Central Excise Officer.
  1. A Central Excise Officer, during an enquiry, investigation or audit, in accordance with the provisions of section 14 of the Central Excise Act, 1944 and as made applicable to Service Tax as per the provisions contained in section 83 of the Finance Act, 1994, may direct an assessee to furnish printouts of the records in electronic form and invoices and may resume printouts of such records and invoices after verifying the correctness of the same in electronic format; and after the print outs of such records in electronic form have been signed by the assessee or any other person authorised by the assessee in this regard, if so requested by such Central Excise Officer.
  1. Every assessee who opts to maintain records in electronic form shall ensure that appropriate backup of records in electronic form is maintained and preserved for a period of 5 years immediately after the financial year to which such records pertain.

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Amendments to Negotiable Instruments Act,

The President of India has promulgated the Negotiable Instruments (Amendment) Ordinance, 2015 (No.6 of 2015) on 15th June, 2015. The Ordinance provides for determination of territorial jurisdiction of courts for trying cases relating to offence of dishonour of cheques under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).

The Ordinance has amended the NI Act to, inter-alia, stipulate the follow:

• Filing of cases only in a court within whose local jurisdiction the bank branch of the payee, where the payee delivers the cheque for payment through his account, is situated, except in case of bearer cheques, which are presented to the branch of the drawee bank in that case the local court of that branch would get jurisdiction;

• Providing that where a complaint has been filed against the drawer of a cheque in the court having jurisdiction under the new scheme of jurisdiction, all subsequent complaints arising out of section 138 of the NI Act against the same drawer shall be filed before the same court, irrespective of whether those cheques were presented for payment within the territorial jurisdiction of that court; and

• Providing that if more than one prosecution is filed under section 138 of the NI Act against the same drawer of cheques before different courts, upon the said fact having been brought to the notice of the court, the court shall transfer the case to the court having jurisdiction as per the new scheme of jurisdiction.

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Issue of ESOP shares to non residents

RBI has issued a notification dated 16th July 2015 wherein it has done away with the 5% limit on the issue of shares under the Employees Stock Options Scheme or sweat equity shares to its employees who are resident outside India. Instead the company has to comply with all the applicable regulations of SEBI/ MCA / RBI in this regard.

The relevant portion of the said notification is reproduced below

On a review, it has been decided that an Indian company may issue “employees’ stock option” and/or “sweat equity shares” to its employees/directors or employees/directors of its holding company or joint venture or wholly owned overseas subsidiary/subsidiaries who are resident outside India, provided that :

  1. The scheme has been drawn either in terms of regulations issued under the Securities Exchange Board of India Act, 1992 or the Companies (Share Capital and Debentures) Rules, 2014 notified by the Central Government under the Companies Act 2013, as the case may be.
  2. The “employee’s stock option”/ “sweat equity shares” issued to non-resident employees/directors under the applicable rules/regulations are in compliance with the sectoral cap applicable to the said company.
  3. Issue of “employee’s stock option”/ “sweat equity shares” in a company where foreign investment is under the approval route shall require prior approval of the Foreign Investment Promotion Board (FIPB) of Government of India.
  4. Issue of “employee’s stock option”/ “sweat equity shares” under the applicable rules/regulations to an employee/director who is a citizen of Bangladesh/Pakistan shall require prior approval of the Foreign Investment Promotion Board (FIPB) of Government of India.

The issuing company is also required to furnish a return in form ESOP within 30 days of the issue to the RBI.

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Prior approval of RBI for acquisition/ transfer of control of NBFCs

RBI has vide its circular dated 9th July, 2015 mandated that prior written permission of RBI will be required for 

  1. any takeover or acquisition of control of an NBFC, which may or may not result in change of management;
  2. any change in the shareholding of an NBFC, including progressive increases over time, which would result in acquisition/ transfer of shareholding of 26 per cent or more of the paid up equity capital of the NBFC. Prior approval would, however, not be required in case of any shareholding going beyond 26% due to buyback of shares/ reduction in capital where it has approval of a competent Court. The same is however required to be reported to the Reserve Bank not later than one month from its occurrence;
  3. any change in the management of the NBFC which would result in change in more than 30 per cent of the directors, excluding independent directors. Prior approval would not be required for those directors who get re-elected on retirement by rotation.

RBI has further clarified the procedure regarding making application for prior permission as follows:

(i) NBFCs shall submit an application, in the company letter head, for obtaining prior approval of the Bank under paragraph 2, along with the following documents:

  1. Information about the proposed directors/ shareholders as per the Annex;
  2. Sources of funds of the proposed shareholders acquiring the shares in the NBFC;
  3. Declaration by the proposed directors/ shareholders that they are not associated with any unincorporated body that is accepting deposits;
  4. Declaration by the proposed directors/ shareholders that they are not associated with any company, the application for Certificate of Registration (CoR) of which has been rejected by the Reserve Bank;
  5. Declaration by the proposed directors/ shareholders that there is no criminal case, including for offence under section 138 of the Negotiable Instruments Act, against them; and
  6. Bankers’ Report on the proposed directors/ shareholders.

(ii) Applications in this regard may be submitted to the Regional Office of the Department of Non-Banking Supervision in whose jurisdiction the Registered Office of the NBFC is located.

Further RBI has mandated that prior public notice of 30 days in advance is required to be given for change in control/ management of NBFC.

i. A public notice of at least 30 days shall be given before effecting the sale of, or transfer of the ownership by sale of shares, or transfer of control, whether with or without sale of shares. Such public notice shall be given by the NBFCs and also by the other party or jointly by the parties concerned, after obtaining the prior permission of the Reserve Bank.

ii. The public notice shall indicate the intention to sell or transfer ownership/ control, the particulars of transferee and the reasons for such sale or transfer of ownership/ control. The notice shall be published in at least one leading national and in one leading local (covering the place of registered office) vernacular newspaper.

5. The directions contained above are applicable with immediate effect, i.e., the same will apply on any takeover or acquisition of control, any change in the shareholding or any change in the management occurring after the date of this circular.

6. Any violation of the aforementioned directions would result in adverse regulatory action including cancellation of CoR.

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