Loan or guarantee given by any company to its directors or group companies.

Many corporate including Pvt Ltd Cos have other related group companies and they transfer money to & from other company as and when require. Stop doing this, even retrospectively from 12th September, 2013 as these can be treated as interest free loan u/s 185 of new company law. Loan has not been defined u/s 185. These transfers can be treated as loan. Any transaction of giving money to be returned with or without interest can be treated as loan. However, fund can be transferred to public ltd co. if less than 25% of total voting power is exercised or controlled by “such director(s)”.

Section 185 of the Companies Act, 2013 has been made operational from 12-09-2013.This sec is applicable for all companies. This sec states that:

No company can advance loan to its “directors” or to “other persons in whom directors are interested”.

 No company can give any guarantee or provide any security in connection with any loan taken by him or such other person.

EXCEPTIONS:

-  the giving of any loan to a managing or whole-time director—

(i) as a part of the conditions of service extended by the company to all its employees; or

(ii) pursuant to any scheme approved by the members by a special resolution; or

-   a company which in the ordinary course of its business provides loans or gives guarantees or securities for the due repayment of any loan and in respect of such loans an interest is charged at a rate not less than the bank rate declared by the Reserve Bank of India.

The expression “TO ANY OTHER PERSON IN WHOM DIRECTOR IS INTERESTED” means—

(a) any director of the lending company, or of a company which is its holding company or any partner or relative of any such director;

(b) any firm in which any such director or relative is a partner;

(c) any private company of which any such director is a director or member;

(d) any body corporate at a general meeting of which not less than twenty five per cent. of the total voting power may be exercised or “controlled” by any such director, or by two or more such directors, together; or

(e) any body corporate, the Board of directors, managing director or manager, whereof isaccustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

“Control” has been defined as to include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholding or management rights or shareholders agreements or voting agreements or in any other manner. [Section 2(g) of the Companies Act, 2013]

IMPRISONMENT & PENALTY UPTO 25 LAKHS :If any loan is advanced or a guarantee or security is given or provided in contravention of the provisions of sub-section (1), the company shall be punishable with fine which shall not be less than five lakh rupees but which may extend totwenty-five lakh rupees, and the director or the other person to whom any loan is advanced or guarantee or security is given or provided in connection with any loan taken by him or the other person, shall be punishable with imprisonment which may extend to six months or with finewhich shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, or with both.

COMMENTS: Kindly note the following observations:

1) Existing loan on 12th sep is not affected by above provisions. However, it should not be renewed & should be repaid on due date.

2) If any loan had already been given after 11th sep., you should book it as advance  for property/ purchase of goods/ materials etc. backed by adequate documentation . These should be return as soon as possible.

3) Deposits or advance for property/ purchase of goods, services etc  is not covered.

4) Company in the ordinary course of business can give loan at not below bank rate.

5) Sec 372 of the Companies Act, 1956 is applicable after 11th sep 2013.

6) Above is my opinion only, you may have different opinion.

PRIVATE LTD COMPANIES HAVING TURNOVER UPTO 60 LAKHS SHOULD BE CONVERTED TO LLP

1) LLP is not a company, hence proposed limit of audit of 20 company / CA will not be applicable.

2) As companies Act will not be applicable, you can transfer fund from one LLP to another group LLP.

3) Many of exemption which Pvt Ltd company enjoy under old Companies Act has been withdrawn, which are not applicable to LLP.

4) Compliances under new companies Act for Pvt Ltd Companies has been substantially increased, which are not applicable for LLPs.

5) There is heavy penalty for non compliances under New Company Act. Penalty of rs 50000 is a small amount for a single violation.

6) Cost benefit analysis suggests that these should be converted into LLP.

7) However, as per sec 47(xiiib) of Income tax Act, for tax neutrality of such conversion , turnover of Pvt Ltd company  in any of last 3 years must not exceeds 60 lakhs. So, if turnover exceeds 60 lakhs than such conversion will be subject to income tax.

PRIVATE LTD COMPANIES SHOULD  BE CONVERTED INTO PUBLIC LTD COMPANIES

1) Sec 185 of New Co Act is not applicable to public ltd co at a general meeting of which not less than twenty five per cent. of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together

2) We can plan accordingly and take benefit.

3) So, we can convert our existing Pvt Ltd companies to public Ltd companies and take benefits.

THE COMPANIES ACT, 2013
185. (1) Save as otherwise provided in this Act, no company shall, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or to any other person in whom the director is interested or give any guarantee or provide any security in connection with any loan taken by him or such other person:

Provided that nothing contained in this sub-section shall apply to—

(a) the giving of any loan to a managing or whole-time director—

(i) as a part of the conditions of service extended by the company to all its employees; or

(ii) pursuant to any scheme approved by the members by a special resolution; or

(b) a company which in the ordinary course of its business provides loans or gives guarantees or securities for the due repayment of any loan and in respect of such loans an interest is charged at a rate not less than the bank rate declared by the Reserve Bank of India.

Explanation.—For the purposes of this section, the expression “to any other person in whom director is interested” means—

(a) any director of the lending company, or of a company which is its holding company or any partner or relative of any such director;

(b) any firm in which any such director or relative is a partner;

(c) any private company of which any such director is a director or member;

(d) any body corporate at a general meeting of which not less than twenty five per cent. of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or

(e) any body corporate, the Board of directors, managing director or manager, whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

(2) If any loan is advanced or a guarantee or security is given or provided in contravention of the provisions of sub-section (1), the company shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, and the director or the other person to whom any loan is advanced or guarantee or security is given or provided in connection with any loan taken by him or the other person, shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, or with both.

Credits CA NITESH MORE

Foreigner as Director in Indian Company and his appointment as director

The foreign nationals or foreign citizen or Non-Resident Indians residing abroad can be appointed as a Director on the Board of Indian companies whether public listed or unlisted or private. A foreign body corporate having 100% subsidiary company in India may nominate all its Directors of the subsidiary Indian company who may be foreign nationals. A foreign director may be appointed as whole time director (executive director) or non whole time director (non – executive director). Procedures relating to appointment of foreign directors under Companies Act are given below.

Under Section 2(13) of the Companies Act, 1956, Director includes any person occupying the position of Director be whatever name called.  In view of this, a foreign national can be appointed as Director in the companies registered in India as per Companies Act 1956.

1. To become a Foreign Director he is required to obtain Director Identification Number (DIN) . For applying DIN,   Permanent Account Number (PAN) from the Indian Income Tax department is compulsory. Before appointment of director, the Director has to apply for DIN.

2. In the case of foreign nationals, the recent color photograph of the director, Pass-port and proof of residence and the affidavit ( format of affidavit is available in MCA web site under DIN 1 )  have to be notarized from the respective country and by applying in Form DIN 1, the Director Identification Number can be obtained on-line. In case of

Foreign Director, the supporting documents can also be attested by Company secretary in full time employment / CEO / Managing director of the Indian company in which he / she proposed to be a director.

3. Affidavit by the applicant to be executed on non judicial stamp paper and duly notarised. It is a mandatory attachment.

4.  In case of foreign applicant, address proof should not be older than 1 year from the date of filing of the E form.

5. Passport number is mandatory for foreign nationals. Foreign nationals shall select the nationality as declared in the passport.

6. Father’s name proof is not required in the case of foreign nationals / NRIs.

7. In case of proofs which are in languages other than Hindi / English, the proofs should be translated in Hindi / English from professional translator carrying his details (name, signature, address) and seal. In the case of foreign nationals, translation done by the notary of home country is also acceptable.

All the forms required to be filed under the Companies Act are filed through MCA website through the digital signature. In view of this the Foreign director is required to have one digital signature with his PAN number encrypted so as to enable him to file the returns with Income tax authorities on behalf of the company.

The Private Limited Companies are required to have a minimum of 2 Directors and Public Limited Companies are required to have a minimum of 3 Directors under the Companies Act.  It is quite possible that all the Directors of the company may be foreign nationals and they run the business through the persons of Indian nationals appointed by them in India.  The Companies Act does not prohibit holding Board meetings abroad. Similarly, it is also having the provision for conducting Board meetings through video –conference subject to adherence to the circulars issued by the Ministry of Corporate Affairs in this regard from time to time. In view of this, it is obvious that a company can have all the Directors consisting of foreign nationals or foreign citizens and there is no prohibition that only Indian Directors should be on the Board of Indian companies.

In the case of companies incorporated in Singapore, at least one Director should the resident of Singapore.  But, no such nationality restriction is applicable for the companies incorporated in India.

Further, a Director belonging to China or Thaiwan who may not be expert in English and hence a person may also become the Director of Indian company without knowing any Indian languages.  What is required is business acumen and also help from others to understand business language in India.

The person proposed to be entered into as Director shall give his consent to act as a Director of the Indian company in writing. This is mandatory in case of a public limited company but now-a-days as a good corporate governance practice, the consent of the proposed appointee director is obtained for private limited companies also. As a measure of caution, this consent may also be notarized in the respective country along with the other documents for obtaining Director Identification Number. This becomes absolutely necessary especially when the Form 32 is required to be certified by a professional and he may have a level of comfort if notarized documents are attached to vouch for the documents belonging to the appointee as he may not be knowing the foreign national personally.

Appointment of Directors is a power which is exercised by the members but once DIN has been obtained the board of directors can pass a resolution for appointing the foreign director by way of an additional director to meet urgent business needs. In addition Form 32 has to be filed with Registrar of Companies with in 30 days for the appointment of director. . And once Form 32 is approved the director’s name will appear in the ‘view signatory details’ in MCA website. At the next Annual general meeting however, the person appointed as Additional director by the Board has to be re-appointed as a Director by the members.

Foreign directors can be paid sitting fees for attending the board meetings even if they are attending the meetings by video conference. In addition to this directors in public limited companies may be also paid commission permitted under sec 309 of the Companies Act. If they are not in the  whole time employment of the company they may be paid commission 1 % of the net profits of the company if the company has a managing director or a whole time director or a manager; 3 % of the net profits of the company in any other case. Sec 309 is not applicable to private limited companies and directors of the private limited companies may be paid commission on the net profits of the company without any restriction.

Under the Foreign Exchange Management Act, 1999, appointment of a foreign national as a director on  the board of directors of an Indian company does not require the approval of Reserve Bank of India [RBI]

Reserve Bank has also granted general powers to an Indian company to make payment in rupees towards sitting fees or commission or remuneration and travel expenses to and from and within India to its non-whole time director who is resident outside India and is on a visit to India for the company’s work.

Particulars of employees - u/s 217 (2A) of Companies Act 1956

The Companies (Particulars of Employees) Rules, 1975 makes it compulsory for every company to provide prescribed details of all the employees that earns Rs.60.00 Lacs in a year or more than Rs.5.00 Lacs per month. Details of employees serving part of the year shall also be included based on the criteria of monthly remuneration i.e greater than Rs.5.00 Lacs.

The new limit of Rs.60.00 lacs has been enhanced from the earlier limit of Rs.24.00 lacs with effect from 31 March 2011.

Vide Circular No.22/76 File No.8/27 (217A) 75-CL V Dated 6th August, 1976 Department of Company affairs has clarified that the word remuneration means the entire remuneration paid to the employee in a commercial and common parlance this remuneration should be the Cost to Company [CTC]. The circular states

"....In this connection, I am directed to clarify that the expression "remuneration received" occurring in the aforesaid rules will include all expenses incurred by the companies in providing any benefit or amenity to the employees and the word 'remuneration' has the meaning assigned to it in section 198 of the Companies Act, 1956. All companies should, therefore, indicate the salary and perquisites drawn by the employees in term of the actual expenditure incurred by the company."

Below is the text to be included in the the Directors report to avoid specifying the entire list of employees who are earning salary beyond the limit specified under the Companies Act 1956

"As required under the provisions of Section 217(2A) of the Companies Act 1956, read with the Companies (Particulrs of employees rules 1975) as amended, the names and other particulrs of the employees are set out in the Annexure to the Directors' Report. However in terms of the provisions of Section 219(1)(b)(iv) of the Companies Act 1956, the Report and the Accounts is being sent to all shareholders of the Company excluding the aforesaid Annexure. Any shareholder interested in obtaining a copy of said Annexure may write to the Company Secretary at the Registered office of the Company."