Cover December 2015 - ICSI · CA Ankit Varshney of Webtel Electrosoft Ltd. was the guest speaker on the occasion on the topic "XBRL -Latest Developments". The tough and abrupt life

National Best Regional Council (2004, 2007, 2008, 2009, 2010, 2011, 2013 & 2014)

Annual Subscription : Rs.100; Single Copy —Rs.10Monthly•Volume XXXIV•No.12•December, 2015

InsightNIRC-ICSINEWSLETTER

1. Impact Seminar on Inbound Investment –

Policies, Opportunities & Challenges

(7.11.2015): Inaugural Session – L to R CS

Manish Aggarwal, CS Ranjeet Pandey, CS NPS

Chawla, CS Ravinder, IAS (Chief Guest), Mr.

Bomi Daruwala (Joint Managing Partner, Vaish

Associates) and CS Satwinder Singh

2. Impact Seminar on Inbound Investment –

Policies, Opportunities & Challenges

(7.11.2015): (17.10.2015): Panel Discussions – L

to R CS Manish Gupta, Mr. Anoop Kapoor,

(Finance Coordinator, BHP Billiton Group), CS

Satwinder Singh, Mr. Bomi Daruwala (Joint

Managing Partner, Vaish Associates), Ms.

Angira Singhvi (Principal Associate, Khaitan

and Khaitan), CS Pathik Arora,

Assistant General Counsel & CS, Interglobe

Hotels Pvt. Ltd.) and CS Pradeep Debnath

3. Punjab State Conference on Seizing Opportunities in the Winds of Change (22.11.2015): Opening Session – L to R CS

Rajeev Bhambri, CS Ranjeet Pandey, CS NPS

Chawla, Shri Anil Joshi (Hon'ble Minister for

Local Bodies, Medical Education & Research,

Govt. of Punjab), CS Atul Mehta (President,

ICSI), Hon'ble Mr. Justice M.M. Kumar

(Chairman, Company Law Board), Mr. A.K.

Chaturvedi (Regional Director -Northern

Region, Ministry of Corporate Affairs), CS

Satwinder Singh and CS Anil Aggarwal.

4. Special Session on Speedy Incorporation &

Flawless E-Filing (7.11.2015): CS D

Bandopadhyay (Registrar of Companies, Delhi

& Haryana) addressing. Others from L to R CS

Manish Gupta, CS NPS Chawla, Mr. Rajnish

Kumar (Asstt. Registrar of Companies, Delhi &

Haryana), Mr. Nitin (Asstt. Registrar of

Companies, Delhi & Haryana), CS Pradeep

Debnath and CS Nitesh Sinha.

5. Learning at Door Step (LDS)" - Session on XBRL

- L a t e s t D e v e l o p m e n t s ( 3 . 1 1 . 2 0 1 5 ) :

L to R CS Manish Gupta, CA Ankit Varshney

from Webtel Electrosoft Pvt. Ltd. and CS Vinod

Goel

1

2

3

4

5

NIRC Members Directory

NIRC-ICSI Newsletter March 201522

The Regional Council

Key Contents

CS NPS Chawla Chairman • 09958535300

CS Manish GuptaVice-Chairman • 09212221110

Secretary • CS Dhananjay Shukla 09873347280

Treasurer • CS Pradeep K Debnath 09910562121

Members • CS Amit Gupta 09415005108

CS Avtaar Singh(In alphabetical 9999789891• 0

CS Deepak Aroraorder) • 09351788834

CS Manish Aggarwal • 09988114441

• CS Monika Kohli 09810480983

CS Nitesh K Sinha • 09871500827

• CS Rajeev Bhambri 09915710010

CS Saurabh Kalia • 09810979440

Ex-officio

CS Rajiv Bajaj Members • 09811453353

• CS Ranjeet Pandey 09810558049

CS Satwinder Singh • 09871686000

CS Shyam Agrawal • 09314923451

CS Vineet K Chaudhary • 09811577123

Regional Director • S K Nagar 09313339897

From the Chairman 2-3

Article 4-19

News from NIRC 20-21

CSBF 22

Lighter Side of Profession 22

Help Desk of NIRC-ICSI011-49343000 [email protected]

From the Chairman

NIRC-ICSI Newsletter December, 2015

Printed & Published by : S. K. Nagar, Regional Director for and on behalf

of Northern India Regional Council of the

Institute of Company Secretaries of India 4,

Prasad Nagar Institutional Area, New Delhi-

110005; E-mail: [email protected]; Phones: 49343000;

Fax: 25722662; Printed at : Compudata Services,

42 DSIDC Shed, Scheme-I, Phase-II, Okhla Indl.

Complex, New Delhi-20; Published at : NIRC-

ICSI, 4, Prasad Nagar Instl. Area, New Delhi.

©The Northern India Regional Council of the Institute of Company Secretaries of India, 2015

Dear Professional Colleagues,

At the outset, I am elated to share that your Northern India Regional Council (NIRC) has been adjudged as the National Best Regional Council-2014. Earlier, NIRC has won the said Award in the year 2013 and also for 5 (five) consecutive years from 2007 to 2011. I wholeheartedly compliment the untiring efforts and dedication of Team NIRC, all the officers and staff of NIRO and all its stakeholders, which makes NIRC the most vibrant and fully charged up Regional Council. I also thank all the members and students of Northern Region for their seamless support, motivation and encouragement.

Friends, in order to provide ample opportunities of learning and updating the knowledge base of the members, NIRC has been actively organising various professional development programmes. The following programs were organised by NIRC during the month of November, 2015:

Members Programs:

On 7th November, 2015 NIRC organised one day seminar on Inbound Investment – Policies, Opportunities and Challenges at Hotel EROS, New Delhi. CS Ravinder, IAS, Director, Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India was the Chief Guest on the occasion. On the same day a special session on speedy Incorporation & Flawless E-Filing was organised at Hotel EROS. CS D. Bandopadhyay, Registrar of Companies, Delhi & Haryana; Mr. Rajnish Kumar (Asstt. Registrar of Companies, Delhi & Haryana) and Mr. Nitin (Asstt. Registrar of Companies, Delhi & Haryana) were the guest speakers of the session and they have shared their rich knowledge and experience with the delegates of the program.

On 22nd November, 2015 NIRC organized a Study Session on the topic FEMA - Updates, Changes & Challenges at North Delhi. CS Atul Mittal, Director, Deloitte Touche Tohmatsu India Pvt. Ltd was the guest speaker on the occasion.

On 22nd November, 2015 NIRC organized Punjab State Conference through Amritsar Chapter at Hotel Radisson Blu, Amritsar on the topic “Seizing Opportunities in the winds of change”. Shri Anil Joshi , Hon'ble Minister for Local Bodies, Medical Education & Research, Govt. of Punjab was the Chief Guest and Hon'ble Mr. Justice M.M. Kumar, Chairman, Company Law Board and Mr. A.K. Chaturvedi, Regional Director (Northern Region), Ministry of Corporate Affairs were the guest of honours.

On 28th November, 2015 organised a Brainstorming Session on Annual Return at West Delhi. CS T. R. Ramamurthy, Practising Company Secretary was the guest speaker on the occasion and has shared his rich knowledge and experience with the delegates of the programme.

Chief Editor : CS NPS Chawla

Editor : CS Manish Aggarwal

December, 2015 3 NIRC-ICSI Newsletter

From the Chairman

NIRC has been organizing various State Conferences, oneof them as Haryana State Conference was organized on25th October, 2015 on the theme "CS: Conquering theChallenge of Change" at Gymkhana Club, Karnal. Mr.Kishan Garg, Senior Deputy Mayor, Karnal was the ChiefGuest and CS Nesar Ahmad, Past President-ICSI was theGuest of Honour on the occasion.

Friends, with a view to provide the members, anopportunity of learning at their door step, your NIRC hadlaunched the concept of Learning at Door Step (LDS). Inthis series, NIRC is holding programs at different locationswhere hub of members are professionally located.Programs are organised in the auditorium/ hall ofcorporates, chambers, associations etc. in a particular area.I take this opportunity to request the members to supportthis initiative by allowing NIRC to conduct program(s)/session(s) at their professional premises for benefit of allthe members in that locality. In this series NIRC hasorganised another LDS session on 3rd November, 2015 atthe Auditorium of Panacea Biotec Ltd., Mathura Road, NewDelhi. CA Ankit Varshney of Webtel Electrosoft Ltd. wasthe guest speaker on the occasion on the topic "XBRL -LatestDevelopments".

The tough and abrupt life style of professionals these daysenticed NIRC to organize an exclusive session on "PainRelief through Pencil Therapy" on 11th October, 2015 atNIRC premises. CS Ramanuj Asawa, Renowned AcupressureTherapist, President, Pain Relief Foundation, Nagpur wasthe guest speaker on the occasion. Members participated inthe session in large number and found the same very usefuland beneficial.

Students Programmes:

On 6th October, 2015 valedictory function of 218th MSOPwas organised at NIRC premises. Mr. Sameer Biswas,Former Registrar of Companies (Delhi & Mumbai) was theChief Guest and CS Ashok Tyagi was the Guest of Honouron the occasion.

On 12th October, 2015 and 16th October, 2015 inaugurationfunctions of 222nd and 223rd MSOPs were organised atNIRC premises. CS Surender Gupta, RNJ Bhilwara Group,Noida and CS V K Charoria, Director, Hindustan TimesLtd. were the Chief Guests on the occasions respectively.

On 30th October, 2015 valedictory function of 222nd MSOPwas organized at NIRC premises. CS ArunavaChoudhury,Executive Director, Chief Financial Officer &Company Secretary,National Industrial Corporation Ltd.was the Chief Guest and CS Sibanarayan Nayak, Senior VP- Finance, Era Group was the Guest of Honour on theoccasion.

On 11th, 18th, 25th October, 2015 and 1st November, 2015,NIRC organised Professional Development Programs forthe students at NIRC premises.

I take this opportunity to place on record my sincere thanksand gratitude to the Chief Guests, Guest of Honours andGuest speakers of above mentioned programmes forsparing their time and sharing their rich knowledge andexperience with the delegates of the programmes.

With warm regards,

Yours sincerely,

CS NPS Chawla

Chairman, NIRC-ICSI

Cell: 9958535300, [email protected]

Friends, in order to strengthen the global presence of "BrandCS" and also to build the capacity of our members in theGlobal Era, your NIRC-ICSI will organize a chain ofprograms with Embassies and Consulates of manycountries viz. United State of America (USA), UnitedKingdom (UK), Canada, Russia and more. To begin with,NIRC organised 1st of such programs jointly with U.S.Commercial Service, Department of Commerce, UnitedState of America on the topic "DOING BUSINESS IN THEUSA" on Thursday, the 3rd December, 2015 at The AmericanCenter, New Delhi-110001. Mr. Paul Frost, CommercialOfficer, U.S. Embassy; Mr. Ramesh K. Vaidyanathan,Managing Partner, Advaya Legal and Ms. Erica Marrero,Consular Officer of the U.S. Embassy were the guestspeakers in the program and they have shared their wordsof wisdom with the delegates of the programme.

For creating visibility and enhancing the brand buildingof the CS profession, on 29th November, 2015 NIRCparticipated in Airtel Delhi Half Marathon-Great Delhi Run6 Km. Approx. 100 members participated in the eventwearing ICSI T-Shirt and holding ICSI flag.Apart from organizing professional developmentprogrammes on 15th November, 2015 NIRC had alsoorganized Annual Sports Meet at Yamuna Sports Complex,Delhi. Members played Cricket; Football, Table Tennis,Badminton, Volleyball, Chess & Carrom and thoroughlyenjoyed the event. More than 100 members activelyparticipated in the event.

Students Programs:

On 5th November, 2015 valedictory function of 223rd MSOPwas organised at NIRC premises. CS G Gehani, Whole TimeDirector & CS, PSL Ltd. was the Chief Guest on the occasion.

On 6th November, 2015, NIRC inaugurated 224th batch ofMSOP at NIRC premises. CS Harish K Vaid, Senior President(Corporate Affairs) & Company Secretary of JaiprakashAssociates Ltd. was the Chief Guest on the occasion. On30th November, 2015, valedictory function of this batchwas organised by NIRC. CS H S Grover, Past Chairman,NIRC-ICSI was the Chief Guest and CS Pankaj Gupta,Company Secretary, Goodyear and CS Avneesh Chopra,Company Secretary, Ford India were the Guest of Honourson the occasion.

On 22nd November, 2015, NIRC organised ProfessionalDevelopment Programs for the students at NIRC premises.

I take this opportunity to place on record my sincere thanksand gratitude to the Chief Guests, Guest of Honours andGuest speakers of above mentioned programmes forsparing their time and sharing their rich knowledge andexperience with the delegates of the programmes.

Forthcoming Programs:

NIRC is organising the following programmes in the monthof December, 2015. Detailed announcement of theprogrammes is published inside the Newsletter. I take thisopportunity to request all of you to attend theseprogrammes in large numbers and make them successful:

NATIONAL CONVENTION OF COMPANYSECRETARIES:• After a long gap of 15 years, from 17th December,

2015 to 19th December, 2015, Institute is organising43rd National Convention of Company Secretariesin Delhi at Kempinski Ambience Hotel. Request themembers to join.

• UP State Conference on 26th December, 2015 at HotelCountry Inn at Vaishali, Ghaziabad.

• On 30th December, 2015 NIRC is organising ICSI-Convocation of Northern Region for newly qualifiedmembers of the Institute at Manekshaw CentreAuditorium, Delhi.

• New Year Get Together on 1st January, 2016 atMasonic Club, New Delhi.

• Rajasthan State Conference on 03rd January, 2016 atBhilwara

• Monthly Seminar on 16.01.2016.

Friends, in this last one month, we unfortunately lost threeof our young members (CS Ravi Shankar Chauhan-A20624,CS Rahul Garg-A25013 and CS Tanu Berry-A28802).While we give our condolences to the families of theseyoung members, we also pray to the almighty to givestrength to the families for the irreparable loss and alsohasten the journey of soul to heaven. These unforeseenincidents are "life's wake-up call" and reinforces our beliefin living life to the fullest every moment…..It is generallyseen that after every such unfortunate demise, we starttalking about Company Secretaries Benevolent Fund (CSBF)but really never take it seriously. It is high time that wepropagate CSBF and enrol more and more members forthe CSBF so that maximum benefit can be provided to thefamilies in case of such casualties.

We await for your feedback and suggestions on the activitiesof the NIRC.


NCLT & NCLAT– CS Amit Vinayak and CS Divesh Goyal *

SCOPE OF WORK: -

NCLT and its appellate Tribunal were recommendedwhich will have consolidatedly subsume the powers ofthe:

• Company Law Board under the Companies Act, 1956.• BIFR and AAIFR under the Sick Industrial Companies

(Special Provisions) Act, 1985,• Jurisdiction and powers relating to winding up,

companies and arrangement and other suchprovisions, vested in the various High Courts inIndia.

WHY NATIONAL COMPANY LAW TRIBUNAL?

The genesis of setting up of specialized tribunals can betraced in the Supreme Court judgment in SampathKumar case. In this case, while adopting the theory ofalternative institutional mechanism the Supreme Courtrefers to the fact that since independence, the populationexplosion and the increase in litigation had greatlyincreased the burden of pendency in the High Courts,and therefore, to reduce the burden of High Courts andto fulfi l l the growing need for empowering theCompany Law Board, they felt the need to constitute ahigh-power Tribunal, which could take up all mattersrelating to Company Law and other Corporate Laws atone Forum.

Keeping this in view, the 2002 Amendment inserted newParts IB & IC in the Principal Act for formation ofNational Company Law Tribunal (NCLT or Tribunal)and National Company Law Appellate Tribunal(Appellate Tribunal) respectively. Necessary Section10FA was also inserted to provide for dissolution of thepresent Company Law Board.

Accordingly, on and from the commencement of theCompanies (Second Amendment) Act, 2002 the Board ofCompany Law Administration constituted under sub-section (1) of Section 10E shall stand dissolved and allmatters or proceedings or cases pending before theCompany Law Board on or before the constitution ofthe Tribunal u/s. 10FB, shall, on such constitution, standtransferred to the National Company Law Tribunal andthe said Tribunal shall dispose of such cases inaccordance with the provisions of this Act.

However, the Central Government came out with aPress Note on 4.04.2003, clarifying that the aboveNotification of 31st March, 2003 was issued only toenable the Government to initiate necessary steps toestablish the NCLT and make it operational. It wasfurther clarified that the subject Notification bringinginto effect Section 6 of the Second Amendment Act willonly set in motion, all preliminary steps required for

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*The views expressed are personal views of the author and it should not be taken as views of the NIRC-ICSI.

The Central Government has been positively respondingto the changing needs of the corporate world by effectingrequired changes in Corporate Laws so that they areworthy of meeting the needs of the society from time totime. In the corporate structure of our country, JudicialForums play a very important role in the life of acompany. Companies are required to cater to thegrowing needs of the society so as to discharge theirresponsibilities as corporate citizens for creating valueand enhancing wealth for all their stakeholders whichnot only includes the equity shareholders and debentureholders but also include the fixed deposit holders, Banks,Term Lending Institutions, vendors, consumers andpublic at large.

There is perceptible trend around the world towardssimplification or rationalization of legislationsgoverning them. Time is ripe, therefore it is to beensured that dispensation of justice and disposal ofbusiness matters by the court and authorities should bein tune with the speed with which business is beingtransacted. This is in continuation of "ease of doingbusiness".

NATIONAL COMPANY LAW TRIBUNAL (NCLT) is aproposed quasi-judicial body in India that will governthe companies in India. It will be established under theCompanies Act, 2013 and is the successor body of theCompany Law Board. Establishment of NCLT is goodfor ease of doing business.

NCLT is a "SIGNLE WINDOW INSTITUTIONS FORCOPORATE JUSTICE".

Background of NCLT:

Considering the laws on corporate insolvency, windingof Companies and other such provisions with regardsto company law prevailing in industrially advancedcountries, a High Level committee was set up by theUnion of India in the form of The Eradi Committee. TheCommittee examined various legal laws and not onlyCompanies Act, 1956 and they felt need for somechanges, which made them to recommend variousamendments which included the provisions of settingup of NCLT & NCLAT

Pursuant to the recommendation of the said committeethe Companies (Second Amendment) Act, 2002 proposedthe creation of a NCLT, wherein it was provided thatNCLT would look into majority of corporate mattersunder the Companies Act. It was provided that NCLTwill be responsible for handling all pending mattersbefore the Company Law Board, Board for Industrialand Financial Reconstruction (BIFR) and the jurisdictionof the various company courts of the High Courts, apartfrom various other members.


establishment of NCLT and that upon establishment ofthe same, a separate Notification regarding constitutionof NCLT will be issued by the Government. Till suchtime jurisdiction of the present Company Law Boardwill continue to remain unchanged.

REASON WHY ITS CREATION HAD BEENCHALLENGED:-

The main reason for the challenge was theconstitutionality of the tribunal as it involved thewholesale transfer of jurisdiction of the High Courts incompany matters to a quasi-judicial body. It was arguedthat such transfer will result in vesting of intrinsicjudicial functions in a quasi-judicial body, which wasvulnerable to executive interference.

SC JUDGEMENT IN BRIEF

1. The Present Writ Petition was heard by the SC whereit categorised the challenges put forth in threecategories, as under:

i. Challenge to the validity of theconstitution of NCLT and NCLAT;

ii. Challenge to the prescription ofqualifications etc. of President /Chairman and Members of theNCLT/NCLAT;

iii. Challenge to the structure of theSelection Committee for appointment

of President/ Members of the NCLTand Chairperson/ Members of theNCLAT.

2. The SC squarely applied the 2010 Judgement to thiscase and upheld the Constitutional validity of NCLTand NCLAT mentioned under point (i) above in itsjudgement dated 14 May 2015 ('SC Judgement 2015').

3. As regards issues (ii) and (iii), the SC referring tothe 2010 Judgement held that the provisionsregarding establishment of NCLT and NCLATcontained in Cos Act, 2013 are not valid till the pointthey are not fully realigned as per the directionsgiven in the 2010 Judgement. Further, SC has heldthat the technical members in NCLT / NCLATshould be of a rank equivalent to a Secretary or AnAdditional Secretary in the government of India, asopposed to a Joint Secretary as contemplated in theCos Act, 2013.

4. It has also put its stamp of approval to the directionsgiven under the 2010 Judgement with regard to theSelection Committee, with the caveat that theChairperson of the Selection Committee being ChiefJustice of India or his nominee should have a castingvote.

5. Apart from the above, in SC Judgement 2015, SC hasalso considered the following steps taken till datetowards setting up of NCLT and NCLAT:

6. Approvals taken for creation of various positions inNCLT and NCLAT;

7. Draft Rules on various matters prepared to placebefore appropriate authorities, inter alia including:- rules, remuneration and recruitment of NCLT/NCLAT members; - schemes of compromises/arrangements, and - rehabilitation of sick companies

8. Space for Principal Bench and other Benches of NCLTat Delhi;

9. Process initiated for set up of infrastructure;10. Allocation of budget heads for meeting the

expenditure; and11. Surrender of allocated funds in 2014-2015 in view of

the delay in settling up the Tribunals.12. Amongst aforesaid steps, SC also directed that UOI

shall take remedial measures as per directions inthis judgement at the earliest, so that the NCLT andNCLAT are adequately manned and startfunctioning in the near future.

STEM BY GOVERNMENT FOR ESTABLISHMENT OFNCLT:-

• In a move that will help EASE DOING BUSINESS ININDIA considerably, a constitution bench of theSupreme Court (SC) led by Chief Justice HL Dattuupheld the constitutional validity for setting up theNational Company Law Tribunal (NCLT) and theNational Company Law Appellate Tribunal(NCLAT).

• That's an important step forward for thegovernment. After all, There Are Over 64,000 CasesPending in The Supreme Court Alone as of December2014, with another 3 crore cases in the high court'sand lower courts. Once these bodies are set up, ascorporate cases move to the NCLT, quite a bit of thepressure will be released from the country's stressedlegal system, which will in turn help unlock thevalue of distressed corporate assets.

• That could be a huge plus for industry that is lookingto make the most in an otherwise sober market.While this one move brings in a lot of credibility tohandling disputes under the Companies Act, 2013,it will finally depend on how quickly thegovernment moves ahead and adopts the provisionsstated by the SC. That will be critical to its success.Considering the time and energy the Modigovernment is investing on its Make-in-Indiainitiative that should, hopefully, not take too long.In turn, that would lead to more investment comingin over the next few months, provided the globalsituation remains normal.

MEGA TRIBUNAL:-

NCLT can be called as Mega Tribunal. Because NCLTwill CONSOLIDATE the corporate jurisdiction of thefollowings:

• Company Law Board.• The Board for Industrial and Financial

Reconstruction

Article


• The Appellate authority for Industrial and FinancialReconstruction

• Jurisdiction and powers relating to winding uprestructuring and other such provisions, vested inthe High courts

FEATURES OF NCLT:-

• Specialized court for the Corporate Members.• This will be only Tribunal for the Corporate

Members.• It shall avoid multiplicity of litigation before various

Forums• There shall be various branches of the NCLT all over

India, thereby providing justice almost at one'sdoorstep.

• There will be a mixture of judicial and Technicalmembers while deciding matters

• There shall a reduction in period of winding- up.• Reduction in pendency of cases.• Expeditious disposal of cases.• NCLT & NCLAT have deals with exclusive

jurisdiction.POWERS OF NCLT:-

• Power to seek assistance of Chief MetropolitanMagistrate: The Tribunal may, in any proceedingsrelating to a sick Company or Winding up of anyother company, in order to take into custody orunder its control all property, books of account orother documents, request, in writing, the ChiefMetropolitan Magistrate within whose jurisdictionany such property, books are situated or found.

• Power to review its own order.• Power to order repayment of deposits accepted by

Non- Banking Financial Companies as provided insection 45QA of the Reserve Bank of India Act, 1934.

SCOPE FOR PRACTICING COMPANY SECRETARY:

The establishment of NCLT/NCLAT shall offer variousopportunities to Practicing Company Secretaries as theyhave been authorized to appear before the Tribunal/Appellate Tribunal (Section 432). Therefore, PracticingCompany Secretaries would for the first time be eligibleto appear for matters which were hitherto dealt withby the High Court.

Areas opened up for company secretaries in practiceunder NCLT are stated hereunder:

• Compromise and Arrangement

• Merger & Amalgamation u/s 391-394.

• Revival & Rehabilitation of Sick Companies

• Winding up proceedings under theCompanies Act, 1956

• Reduction of Capital

• Private liquidator and many others.

• Right to appear as Legal Representative

In view of vast opportunities emerging with theestablishment of National Company Law Tribunal, thePractising Company Secretaries should standardize theircompetencies with the global benchmarks to providevalue added services in assisting the Tribunal indispensation of justice and speedier disposal of matterslike merger, amalgamation, restructuring, revival andrehabilitation of sick companies and winding up ofcompanies.

PROVISIONS UNDER COMPANIES ACT, 2013 - NCLT:

A. Background

Companies Act, 2013 provides for the constitutions ofNCLT and NCLAT. The provisions dealing with NCLTand NCLAT are covered under the Chapter XXVII of theCompanies Act, 2013. Relevant sections relating to theconstitution of NCLT & NCLAT, qualifications andselections, term of office, salary, allowance and otheritems and conditions of service of members beingcovered under Section 407 to 414 in the Companies Act,2013 were notified on 12th September, 2013. Out of atotal of 28 Section in Chapter XXVII of the CompaniesAct, 2013 these 8 sections were notified while theremaining 20 sections are yet to be notified. Rules underthis chapter of the Companies Act, 2013 have also notbeen notified in the Official Gazette (till September 2014).

B. DEFINITIONS:

Chairperson: The Chairperson of the Appellate Tribunal.

Judicial Member: A member of the Tribunal or theAppellate Tribunal appointed as such and includes thePresident of the Chairperson.

Member: A member, whether judicial or Technical of theTribunal or the Appellate Tribunal and includes thePresident or the Chairperson.

President: The President of the Tribunal.

Technical Member: A member of the Tribunal or theAppellate Tribunal appointed as such.

C. NATIONAL COMPANY LAW APPELLATETRIBUNAL:

Appeal from order of Tribunal:

• Any person aggrieved by an order or decision of theNCLT, within the period of 45 days from the date onwhich a copy of the order or decision of the Tribunal,may prefer an appeal to Appellate Tribunal.

• On receipt of an appeal from an aggrieved person,the Appellate Tribunal may pass such orders, aftergiving an opportunity of being heard, as it thinks fit,confirming, modifying or setting aside the orderappealed against.

Article


• The Appellate Tribunal shall be made to dispose theappeal within 6 (Six) months from the date of thereceipt of the appeal.

D. PROCEDURE AND POWERS OF TRIBUNALAND APPELLATE TRIBUNAL:-

The Tribunal and the Appellate Tribunal shall not bebound by the procedure laid down in the Code of CivilProcedure, 1908 (5 of 1908), but shall be guided by theprinciples of natural justice and subject to the otherprovisions of this Act and of any rules made by theCentral Government, the Tribunal and the AppellateTribunal shall have power to regulate their ownprocedure.

NCLT Draft Rules are already in place and final Ruleswill be placed once the provisions will be notified alongwith Rules.

E. Expeditious disposal by Tribunal and AppellateTribunal:

Time period for Disposing of Application or Petition :Tribunal or the Appellate Tribunal, as the case may be,for the disposal of such application or petition or appealwithin three months from the date of its presentationbefore the Tribunal or the filing of the appeal beforethe Appellate Tribunal

If not disposed off within 3 months : Tribunal or, as thecase may be, the Appellate Tribunal, shall record thereasons for not disposing of the application or petitionor the appeal, as the case may be, within the period sospecified

Extension : The President or the Chairperson, as the casemay be, may, after taking into account the reasons sorecorded, extend the period referred to in sub-section(1) by such period not exceeding 90 (ninety) days as hemay consider necessary.

F. TRANSFER OF CERTAIN PENDINGPROCEEDINGS (Section- 434):

On such date as may be notified by the CentralGovernment in this behalf-

COMPANY LAW BOARD : All matters, proceedings orcases pending before the Board of Company LawAdministration constituted under sub - section (1) ofSection 10E of the CA-1956 immediately before suchdate shall stand transferred to the Tribunal and Tribunalshall dispose of such matters.

BIFR : Any appeal preferred to the AAIFR or anyreference made or enquiry pending to or before BIFRor any proceeding of whatever nature pending beforethe AAIFR or the BIFR under the Sick IndustrialCompanies Act, 1985 immediately before thecommencement of this Act shall stand abated.

HIGH COURT : All proceedings under Companies Act,1956 including proceedings relating to arbitration,compromise, arrangement and reconstruction and

winding up of Companies, pending immediately beforesuch date before any District Court or High Court, shallstand transferred to the Tribunal and the Tribunal mayproceed to deal with such proceedings from the stagebefore their transfer.

The Central Government may make rules consistentwith the provisions of this Act to ensure timely transferof all matters, proceedings or cases pending before theCompany Law Board or the Court, to the Tribunal underthis section.

G. APPEAL TO SUPREME COURT:-

Any person aggrieved by any order of the AppellateTribunal may file an appeal to the Supreme Court within60 (sixty) days from the date of receipt of the order ofthe Appellate Tribunal to him on any question of lawarising out of such order:

Provided that the Supreme Court may, if it is satisfiedthat the appellant was prevented by sufficient cause fromfiling the appeal within the said period, allow it to befiled within a further period not exceeding sixty days.

H. SOME IMPORTANT FEATURES:

• Limitation Act (Section-433): The provisions of theLimitation Act, 1963 shall, as far as may be, apply toproceedings or appeals before the Tribunal or theAppellate Tribunal, as the case may be.

• CIVIL COURT NOT TO HAVE JURISDICTION(SECTION 430):This section deals with exclusive jurisdiction of theTribunal or the Appellate Tribunal. No civil courtshall have jurisdiction to entertain any suit orproceeding in respect of any matter which theTribunal or the Appellate Tribunal is empoweredto determine by or under this Act or any other lawfor the time being in force and no injunction shallbe granted by any court or other authority in respectof any action taken or to be taken in pursuance ofany power conferred by or under this Act or anyother law for the time being in force.

CONCLUSION:

The SC Judgement 2015 has upheld the constitutionalvalidity for setting up the NCLT and the NCLAT andhas also ensured that the judiciary has a greater role toplay than the executive. Due to the petitions filed withthe SC, the notification of a large number of sectionsincluding provisions for schemes of arrangementsinvolving mergers, demergers etc. under the Cos Act,2013, haven't been notified yet due to delay in settingup the NCLT. Once the NCLT, is set up it will not justreplace the Company Law Board (CLB), but will alsotake care of cases that are with the High Courts, theBoard for Industrial and Financial Reconstruction (BIFR)and the Appellate Authority for Industrial and FinancialReconstruction (AAIFR).

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MAJOR IMPACT OF SEBI LISTING OBLIGATIONS ANDDISCLOSURE REQUIREMENTS

– CS Divesh Goyal*

APPLICABILITY OF REGULATIONS IS ASFOLLOW:

APPLICABILITY OF THE REGULATIONS:-

Any listed Entity who has followingDesignated Security Listed on any RecognizeStock Exchange:

a) Specified Securities Listed On:

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INTRODUCTION:

SEBI in its board meeting on 19th November2014 had discussed the conversion of existinglisting agreements into a single comprehensiveregulation for various types of listed securities.Finally, the SEBI has, on 2nd September, 2015,notified the SEBI (Listing Obligations andDisclosure Requirements) Regulations, 2015("SEBI Listing Regulations") replacing theListing agreement. The SEBI ListingRegulations aim to consolidate and streamlinethe existing listing agreements for differentsegments of the capital market into one singledocument across various types of securitieslisted on the Stock Exchanges.

In Listing Obligation and DisclosureRequirements there are IX-

Chapters, 103 Regulations and X- Schedules.

SEBI Listing Regulations shall come into forceon the ninetieth day from date of publicationin the official gaze

Date of Publication in Official Gazette:September 2, 2015

Date of Applicability: December 1, 2015

However, the following two provisions shallbe applicable with immediate effect i.e. 2September 2015:

• Passing of ordinary resolution instead ofspecial resolution in case of all materialrelated party transactions subject to relatedparties abstaining from voting on suchresolutions

• Re-classification of promoters as publicshareholders under various circumstances.


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• Main Board• SME Exchange• Institutional Trading Platformb) Non-convertible debt securities

c) Non-convertible redeemable preferenceshares

d) Perpetual debt instrument

e) Perpetual non-cumulative preferenceshares

f) Indian depository receipts

g) Securitized debt instruments

h) Units issued by mutual funds

i) Any other securities as may be specifiedby the Board

Division of Regulations in Two Parts:

i. Substantive provisions incorporated inthe main body of Regulations;

ii. Procedural requirements in the form ofSchedules to the Regulations.

EASE TO REFER:

1. Alignment of provisions:

• The related provisions have been alignedat a common place for ease of reference.E.g. all clauses dealing with disclosure ofevents or information which may bematerial or price sensitive spread across theListing Agreement have been provided asa schedule to the regulations.

• Wherever necessary, the provisions inListing Regulations have been aligned withthose of the Companies Act, 2013

2. Disclosure Requirements:

• All disclosures required to be made on thewebsite of the listed entity have beenenumerated at a single place for ease ofreference.

• All disclosures required to be made in thenews have been enumerated at a singleplace for ease of reference.

• All requirements pertaining to disclosuresin annual report have been combined.

3. Listing Agreement

A shortened version of the Listing Agreement (2page approximately) prescribed which will berequired to be signed by a company getting itssecurities listed on Stock Exchanges. Existinglisted entities will be required to sign theshortened version within 6 months of thenotification of the regulations.

RIL has become the first company to comply withthe Securities and Exchange Board of India's(SEBI) new requirement. RIL signed the same on27th October, 2015

4. Common Obligations for all listedentities are given at one place.

NEW INSERTIONS:

A. Compliance Certificate: [Regulation 7(2)& (3)]

The listed entity shall submit a compliancecertificate to the exchange, duly signed by boththe Compliance Officer of the listed entity andthe authorized representative of the sharetransfer agent, wherever applicable, within onemonth of end of each half of the financial year,certifying compliance with the requirements ofsub- regulation (2) .

Applicability:

The listed entity shall appoint a share transferagent, when the total number of holders ofsecurities of the listed entity exceeds one lakh,the listed entity shall either register with the Boardas a Category II share transfer agent or appointRegistrar to an issue and share transfer agentregistered with the Board.

The requirements of this regulation shall not beapplicable to the units issued by mutual fundsthat are listed on recognized stock exchange(s).


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Share Transfer Agent:

Securities and Exchange Board of India(Registrars to an Issue and Share TransferAgents) Regulations, 1993

"Share Transfer Agent" means-

i. Any person, who on behalf of anybodycorporate maintains the record of holdersof securities issued by such body corporateand deals with all matters connected withthe transfer and redemption of itssecurities.

ii. A department or division (by whatevername called) of a body corporateperforming the activities referred in sub-clause (i) if, at any time the total numberof the holders of securities issued exceedone lakh.

"Registrar to an Issue" means the personappointed by a body corporate or any person orgroup of persons to carry on the following

i. collecting applications from investors inrespect of an issue;

ii. Keeping a proper record of applicationsand monies received from investors or paidto the seller of the securities. and

iii. assisting body corporate or person or groupof persons in-

a. determining the basis of allotment ofsecurities in consultation with the stockexchange;b. finalizing of the list of persons entitled toallotment of securities;c. Processing and dispatching allotmentletters, refund orders or certificates and otherrelated documents in respect of the issue.The term "Share Transfer Agent" is defined asunder:-

"Designated Securities"

Specified securities, non-convertible debtsecurities, non-convertible redeemable preferenceshares, perpetual debt instrument, perpetual

non-cumulative preference shares, Indiandepository receipts, securitized debt instruments,units issued by mutual funds and any othersecurities as may be specified by the Board.[Regulation 2(1) (h) of SEBI (LODR) Regulations,2015]

Object Behind incorporation of this clause:

In case of listed companies there are "nnnnn. . ... . ." of share transfers take place in day to daybasis.

B. Policy for Preservation of Documents:

The listed entity shall have a POLICY forpreservation of documents, approved by itsboard of directors. Listed entity may keepdocuments in electronic mode. Company willclassify them in at least two categories as follows-

Documents whose preservation shall bePERMANENT IN NATURE ;

Documents with preservation period of NOTLESS THAN EIGHT YEARS after completionof the relevant transactions

C. Payment of Dividend or Interest orRedemption or Repayment:-

Modes for Payment:

The listed entity shall use any of the electronicmodes of payment facility approved by theReserve Bank of India, in the manner specifiedin Schedule I, for the payment of the following:

i. PAYMENT OF DIVIDEND OR INTERESTOR REDEMPTION OR REPAYMENT:-

ii. Dividendiii. Interestiv. Redemption or Repayment of amountsModes of Payment if Electronic mode is notpossible: Where it is not possible to use electronicmode of payment then payment can be made byfollowing:

i. 'Payable-at-Par' Warrants

ii. Cheques


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Note:

Where the amount payable as dividend exceedsone thousand and five hundred rupees, the'payable-at-par' warrants or cheques shall be sentby Speed Post.

The listed entity shall declare and disclose thedividend on per share basis only.

D. Grievance Redressal Mechanism:-

• The listed entity shall ensure that adequatesteps are taken for expeditious Redressalof investor complaints.

Registration of Company: The listed entity shallensure that it is registered on the SCORESplatform or such other electronic platform orsystem of the Board as shall be mandated fromtime to time, in order to handle investorcomplaints electronically in the manner specifiedby the Board.

Reporting with Stock Exchange:

• The listed entity shall file with therecognized stock exchange(s) on aQUARTERLY BASIS,

• within twenty one days from the end ofeach quarter,

• a statement giving• The number of investor complaints pending

at the beginning of the quarter,• Those received during the quarter,• Disposed of during the quarter and• Those remaining unresolved at the end of

the quarter.Reporting to Board of Director: The abovemention statement shall be placed, on QuarterlyBasis, before the board of directors of the listedentity.

Annual Information Memorandum:

The listed entity shall submit to the stockexchange(s) an Annual InformationMemorandum in the manner specified by theBoard from time to time.

E. Website Disclosure:-

• The listed entity shall maintain a functionalwebsite containing the basic informationabout the listed entity.

• The listed entity shall ensure that thecontents of the website are correct.

• Updations of change: The listed entity shallupdate any change in the content of itswebsite within two working days from thedate of such change in content

F. Newspaper Advertisement:

• The listed entity shall publish the followinginformation in the newspaper:

• Notice of meeting of the board of directorswhere financial results shall be discussed

• Financial results, as specified in regulation33, along-with the modified opinion(s) orreservation(s), if any, expressed by theauditor:

• Statements of deviation(s) or variation(s)as specified in sub-regulation (1) ofregulation 32 on quarterly basis, afterreview by audit committee and itsexplanation in directors report in annualreport;

• Notices given to shareholders byadvertisement.

• The listed entity shall give link of the websiteof listed entity and stock exchangeexchange(s), where further details areavailable.

• The listed entity shall publish theinformation specified in sub-regulation (1)in the newspaper simultaneously with thesubmission of the same to the stockexchange(s).

G. Disclosure on Acquisition:

The Listing Regulations now mandate that anyand every acquisition including an agreement toacquire would need to be disclosed by a listedcompany without applying any test of materialityfor the disclosure.

The term "acquisition" has been defined asacquisition of control or acquisition of five per


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cent of shares or voting rights by the listedcompany in any other company. Absence ofmateriality would mean that regardless of thescale and size of the listed company, acquisitionof any tiny company would need to be disclosed.This is a new measure. So far, listing agreementhas only required disclosure of price-sensitiveinformation, which by definition, would beinformation that could have an impact on theprice of the securities in the market.

For example, a company with a net worth of Rs1,000 crores would need to report purchase ofshares of 5 per cent or more in another company,or purchase of control over another company,even if the value of the other company were justRs 10 crores. Often, residential apartments arebought by way of buying companies that ownthem. Now, if one were to buy the company thatowns the apartment it would require a publicdisclosure under this new requirement, while ifone were to buy just the apartment there may beno requirement to make a public disclosure.

This is because the absence of materiality is anelement stipulated only for acquisition ofcompanies and not for other assets. The specialdefinition for the term "acquisition" to coveracquisition of companies and not other types ofbusiness organisations, is inexplicable. Therefore,if one were to buy a bunch of assets, or, if onewere to acquire a stake in a limited liabilitypartnership, one would need to make adisclosure to the public only if the deal werematerial. But once it is a company that is beingbought, materiality would be given the goby.

H. Corporate Governance ComplianceRequirement:

Quarterly Compliance Report on CorporateGovernance:

• The listed entity shall submit a quarterlycompliance report on CorporateGovernance in the format as specified bythe Board from time to time to therecognized stock exchange(s) within fifteendays from close of the quarter.

• Details of all material transactions withrelated parties shall be disclosed.

• Report shall be sign Either by Complianceofficer or Chief Executive officer.

I. Financial Result:

SUBMISSION OF FINANCIAL RESULT:

Quarterly Result

The listed entity shall submit quarterly and year-to-date standalone financial results to the stockexchange within forty-five days of end of eachquarter, other than the last quarter

Annual Result

The listed entity shall submit audited standalonefinancial results for he financial year, within sixtydays from the end of the financial year

AUDITED & UNAUDIT FINANCIALRESULT:

Unaudited Financial Result

They shall be subject to limited review by thestatutory auditors ofthe listed entity and shall beaccompanied by the limited review report.

Audit Financial Result

They shall be accompanied by the audit report.

COMMENTS:

The terms on which Companies get listed onIndian stock exchanges just got codified intoregulations. For far too long, the terms of listinghave been governed by an unhelpful legalconstruct - the listing agreement, an agreementbetween the stock exchange and the listedcompany. SEBI has now reproduced theprovisions of the listing agreement in the ListingRegulations - which would now legally governthe world at large - not just listed companies andstock exchanges, but also the regulator.

Notification of SEBI Listing Regulations can beseen as a welcome move by SEBI streamliningand consolidating the post listing requirementsunder the Listing Agreement and various SEBIcirculars. This would aid in simplifying doingbusiness in India through a listed company andalso increase transparency which in turn wouldboast investor confidence for investing in Indianlisted Companies.


RISING INTOLERANCE- REALITY OR POLITICAL GIMMICK?– CS Nritigya Gupta*

Gone are the days when people believed in co-existence. When someone disrespects an individualby blackening his face, other parties get all thereasons to cry to encash the situation. Selfsatisfaction is no more needed; people getcontentment in torturing and downgrading others.

On one hand we are going global, we are acceptingthe traditions and fests of the western world but onthe other hand we refuse to accept festivals of otherreligions that have been celebrated since ancienttimes in our country.

Intolerance is a reality when we see someone's postmaking some derogatory remarks on othercommunity. We are not just forming opinions easilyby just looking at some biased posts and articles onthe web but also are keen on gathering more andmore people to agree with us.

All hopes are not lost! A large number of people,irrespective of religion and beliefs are far moresensible.

The act of awards returning by many scholars,filmmakers, and scientists over rising intolerance isa proof of the reality attached to this scenario. Theseare the people who see danger lurking in theatmosphere of intolerance which is being ignored inthe name of political gimmick.

Only if all of us start being more human and lesspseudo religious, tolerance and respect for each otheris not the hardest thing to achieve on earth. Ensuingpeace in the country is the responsibility of each andevery citizen irrespective of the religion. It is wellunderstood that political gimmick makes mockeryof the common man by making fun of every seriousconcern related to general public at large; Still risein intolerance level is the result of the media whichhas aired and exposed things beyond the requiredlimits creating freight amongst the people.

Taking a lesson from this political gimmick let usall be more responsible in our personal lives andover the social media while expressing our thoughtson anything that might hurt our fellow citizens.!

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Rising intolerance as it is termed, needs to beunderstood for its creation. Intolerance is on rise forthe last few years. It could be in any form such asclashes in the name of religion or high rise in criminalmalfeasance like rape etc or killing of social activistor journalist for airing their views against particularfaction of society or against any political figure.

We are living in an era where everything is ruled bymedia. Media has bossed over everyone andeverything and there is hardly any corner in thenation left deprived of its reach. The small issues arebeing over hyped and aired to turn into a forest fire.It is not that intolerance ever got completely wipedout from a country where people with poles apartdifferences live together but actually the politicianstake advantage of the situation and make it largerthan life to shed lights on the evil doings of thecompeting party. Therefore, it will be apt to say that"Social media is the new mode of communication thatwe have chosen to express feelings, opinions andthoughts of any kind without thinking theconsequences of the same".

Rising intolerance is a mixture of both- reality andpolitical gimmick. However, intolerance is conceivedwhen political powers begin to be misused. Realitytook its toll and common men participated in the fighton social media, being utterly irresponsible of theoutcome and the dirt laundry digging began to grow.

Politicians on the other hand saw the opportunity topull back the vote bank and started raising voice forthe aggrieved group of people all of a sudden.Political system in India works not on the good deedsof a political party when they are in power but oneverything that went wrong during the term of theother political party. This is the dirty trick of politicsand the main cause behind rising intolerance inIndia.

The biggest irony is that if the coins will be reversedand if the ruling and opposition parties were inreversed positions, the situation would not have beendifferent.


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APPOINTMENT OF INDEPENDENT DIRECTOR A BRIEF OVERVIEW– CS Harsh Chauhan*

6) On recommendation of N&R committee, the Boardmay appoint Independent director as additionaldirector to hold office till date of date of next AGM.

7) The Board shall ensure that there is appropriatebalance of skills, experience & knowledge in Boardso as to enable the Board to discharge its functions &duties effectively.

8) File DIR.12 within 30 days of appointment, makeentry in registers u/s 170, 189 (forthwith) & informStock Exchange forthwith.

9) The appointment of independent director shall alsobe approved at a meeting of shareholders by way ofordinary resolution. The independent director shallbe entitled to two consecutive terms of maximum 5years each. He shall not be liable to retire by rotationand shall be re-appointed only by special resolution.

10) Obtain notice from concerned director or anymember with deposit of Rs. 1,00,000 recommendinghis candidature for appointment at AGM.

11) Recommend appointment or re-appointment ofIndependent director at AGM as a special businessto be passed as Ordinary resolution or specialresolution respectively.

12) The explanatory statement u/s 102(1) shall containfollowing event based disclosure that in opinion ofBoard:

a. The proposed appointee fulfills the criteria ofindependence specified in Act & Rulesb. The proposed appointee is independent ofmanagement

c. The appointment is justified in interest of companyd. In event of re-appointment- basis of performance

evaluation of director on which Board recommendsre-appointment of retiring Independent director.

13) In case of listed companies, the detailed profile ofdirector is also sent to members with notice of AGM.

14) File Form DIR.12 within 30 days of appointment &Form MGT.14 within 30 days of passing specialresolution.

15) The appointment of Independent director shall beformalized through issue of letter of appointmentdetailing roles, duties & code of conduct,remuneration etc. to Independent director.

16) The terms and conditions of appointment ofIndependent Director shall be placed on website ofcompany, submitted to stock exchange/s within oneday of appointment and also open for inspection ofmembers at registered office of company duringworking hours.

The person appointed as Independent director shallensure meaningful contribution in Board process, betrained and familiarized with business model of thecompany. Further, all the independent directors shallmeet once a year without presence of any other directorto review the performance of non-independent directorsand the Board as whole, Chairman of the company andalso the effectiveness of flow of information betweenBoard and management.

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An independent director is a non-executive director whofulfills the criteria of independence specified u/s 149(6)and Clause 49 of listing agreement & has submitted hisdeclaration of independence u/s 149(7). The provisionsfor appointment & re-appointment of independentdirectors are covered in Section 149, Schedule IV ofCompanies Act, 2013 and Clause 49 of the listingagreement.

Every listed Company or other public company (exceptSection 8 company) having Paid up Share Capital of Rs.10 Cr or more or Turnover Rs. 100 Cr or More oraggregate loan, debenture and deposits exceeding Rs.50 Cr shall have atleast following independent directors:

Listed Company

1/3rd of total strength

Unlisted Public Company

2 Directors

As per Clause 49 of listing agreement, every listed co.shall have:

• 1/3rd of total strength as independent directors ifchairman is non-executive else

• ½ of total strength as independent directors ifChairman is executive or related to Promoters orBoard members or persons occupying managementpositions at one level below Board

The procedure for appointment for independent directorcan be briefly detailed as under:

1) If company is required to appoint IndependentDirector, the Board shall issue a mandate toNomination & Remuneration (herein after referredas "N&R") Committee to recommend proposedappointees.

2) The nominee director cannot classify as independentdirector but a woman director & small shareholderdirector can be independent director provided hesubmits declaration u/s 146(7).

3) The N&R committee shall conduct due diligencebefore selecting independent director and may evenselect a person from Data Bank maintained by MCAu/s 150(1)

4) The N&R committee shall obtain from proposedappointee, the below noted documents:

a. Consent to act as director in Form DIR.2b. No disqualification certificate u/s 164(2) in FormDIR.8c. Declaration of independence u/s 149(7)d. Details of shareholding in Company, HoldingCompany, subsidiaries & group subsidiaries u/s 170e. Disclosure of interest in MBP.1f. DIN Approval letter / PAN / EMAIL ID/ Detailedprofile of proposed appointee

5) Convene meeting of N&R committee & passresolution recommending appointment or re-appointment of proposed appointee to the Board.


CAPSULE DIGEST ON CASE LAWS– CS Peer Mehboob*

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IND AS: APPLICABILITY AND CHALLENGES– CA Chintan N. Patel*

Issues on Applicability of Ind AS:

1. What is Net Worth for the purpose ofapplicability of Ind AS and related issues?Section 2 (57) of Companies Act 2013defines Net Worth as 'the aggregate valueof the paid-up share capital and all reservescreated out of the profits and securitiespremium account, after deducting theaggregate value of the accumulated losses,deferred expenditure and miscellaneousexpenditure not written off, as per theaudited balance sheet, but does not includereserves created out of revaluation of assets,write-back of depreciation andamalgamation'.Net worth shall be calculated in accordancewith the stand-alone financial statementsof the company as on 31st March, 2014 orthe first audited financial statements foraccounting period which ends after thatdate;

2. X Pvt. Ltd. is a wholly owned subsidiary ofA Inc. USA. The net-worth of A Inc is Rs.1200 crore while of X Pvt. Ltd. is Rs. 200crore. Is Ind AS applicable to X Pvt. Ltd orA Inc and from which date?For the purpose of applicability of Ind AS,net-worth of Indian Company is to beconsidered. Hence, even if net-worth ofUSA based Holding Company is more thanRs. 1000 crore, Ind AS is not applicable toeither A Inc. USA or X Pvt. Ltd as net worthof Indian Subsidiary is less than theprescribed limit. However, X Pvt. Ltd. canvoluntarily adopt Ind AS.

3. If X Pvt. Ltd. is incorporated on 10th May2014. Net-worth of X Pvt. Ltd. for the yearended 31st March 2015 was Rs. 50 Croreand than for the year ended 31st March2016 and 2017 it becomes Rs. 150 crore andRs. 270 Crore. Whether Ind AS will be

Article


'I strongly believe that the introduction of Ind ASis a momentous step for India'- HansHoogervorst, Chairman of InternationalAccounting Standard Board (IASB) said atrecent conference held in India. With thenotification of Companies (Indian AccountingStandards) Rules, 2015 on 16th February 2015by Ministry of Corporate Affairs (MCA), theIFRS has become reality in India as IndianAccounting Standards (Ind AS).

At this time, it is imperative to go back tounderstand the commitment by IndianGovernment and the efforts by MCA and ICAIfor IFRS Convergence in India. The then PrimeMinister Mr. Manmohan Singh had made acommitment towards the alignment of Indianaccounting standards with IFRS at the G20summit in 2009. Thereafter, the Ministry ofCorporate Affairs came up with a road mapfor the convergence, wherein companies partof BSE Sensex and NSE Nifty, those listed onoverseas stock exchanges, apart fromcompanies with a net-worth of above Rs 1,000crore were to converge with IFRS from April1, 2011. However, MCA had deferredimplementation of IFRS in February 2011.Finally, MCA notified Companies (IndianAccounting Standards) Rules, 2015 on 16thFebruary 2015 and issued Ind AS roadmap.

Ind AS Roadmap


applicable to X Pvt Ltd. and from whichyear?As X Pvt. Ltd. cross Rs. 250 Crore in theyear ended 31st March 2017, Ind AS willbe applicable from the year beginning from1st April 2017.

4. What will be the first period publishedunder Ind AS?Phase - I companies having net-worth ofRs. 1,000 crore or more will be required topublish Ind AS from the period beginningon or after 1st April 2016. Hence, the firstannual period published will be financialyear 2016-17 and first interim periodpublished will be for listed company for theQuarter ended 30th June 2016.

5. X Pvt. Ltd. having net-worth of Rs. 230crore on 31st March 2014 has voluntarilyopted to apply Ind AS from the financialyear beginning on or after 1st April 2015.However, due to adverse businesssituations, the company has incurred hugeloss in subsequent years and net-worth hasbeen reduced to Rs. 150 Crore and Rs. 50crore on 31st March 2016 and 31st March2017 respectively. Can X Pvt. Ltd. opt notto apply Ind AS from the financial year2017-18?As per the Rules specified, Once acompany starts following the IndianAccounting Standards (Ind AS) eithervoluntarily or mandatorily on the basis ofcriteria specified in sub-rule (1), it shall berequired to follow the Indian AccountingStandards (Ind AS) for all the subsequentfinancial statements even if any of thecriteria specified in this rule does notsubsequently apply to it. Therefore, X Pvt.Ltd. will be required to follow Ind ASirrespective of its net-worth and choicewhether voluntary or compulsory.

6. A Ltd., a listed banking company issubsidiary of X Pvt. Ltd. The Net-worth ofA Ltd. is 1,200 crore and of X Pvt. Ltd isRs. 700 crore. What will be the applicabilityof Ind AS for A Ltd and X Pvt. Ltd.

The insurance companies, bankingcompanies and non-banking financecompanies shall not be required to applyIndian Accounting Standards (Ind AS) forpreparation of their financial statementseither voluntarily or mandatorily. Hence,A Ltd is exempted from Ind AS while XPvt. Ltd. is required to prepare itsStandalone and Consolidated financialsunder Ind AS from the period beginningon or after 1st April 2016. For preparationof Consolidated financials of X Pvt. Ltd.,even A Ltd's Indian GAAP financials needto be converged to Ind AS.

Ind AS Snapshot

• Not adoption of IFRS but Convergence• Voluntarily : From the period beginning on

or after 1st April 2015• Phase - I Companies : From the period

beginning on or after 1st April 2016• Phase - II Companies : From the period

beginning on or after 1st April 2017• Holding, Subsidiary, Joint Venture or

Associate companies of companies coveredin Phase - I or Phase - II to apply Ind AS asper respective Phase

• Applicability based on Net Worth as on31st March 2014

• Once applied Ind AS, it is to be applied forall subsequent years irrespective ofapplicability of criteria.

Challanges for Corporates:

Numerous questions arise for the CorporateIndia like:

1) How do we move towardsinternational convergence?

The starting point for Ind AS convergence isthe critical which requires thoroughunderstanding of the possible challenges ofInd AS convergence. The decision whether toappoint a Consultant or to carry outconvergence in-house by qualified staff, needsto be taken.

2) What obstacles need to be overcome?

Article


Understanding of clear path of Ind ASconvergence is most important. Unless thecorporate are able to think through thecomplete convergence plan, the chances offacing hurdle at last stage are high.

3) Whether Staff needs to be trained forIFRS?

Ind AS (IFRS) is not only accounting changeand the same can not be handled only throughsystem or software or excel files. The staff inAccounts and Finance function need to betrained to understand and implement IFRS inday to day accounting.

4) What systems and processes can helpto facilitate international convergence?

A clear roadmap with clarity on responsibilityand timelines is key to smooth convergence.The ERP / other system consultant may needto be involved at various stage of transitionfor ensuring the complete and correctinformation flows from system for Ind ASreporting.

5) How much cost the company need toincur to ensure smooth IFRS transition?

The notification was issued in February 2015,with requirement to prepare opening balancesheet as on 1st April 2015 for the companiescovered in phase - 1. The corporate may nothave budgeted the cost of convergence whichincludes Staff training, system improvement,Ind AS Implementation consulting fees etc.Earlier MCA has issued a roadmap forconvergence to IFRS which subsequently waswithdrawn at last stage. However, this time,it is unlikely that Ind AS convergence will bedelayed as ICDS are notified and clarity onother regulatory issues is expected to beprovided soon.

The following are the likely few major issuesof convergence to Ind AS for Corporate Indiawhich requires detailed planning and smoothexecution:

1. Financial Instruments: The completechange over of the standards on FinancialInstruments (Ind AS 109) and no

mandatory standard in India, poses achallenge to identify the differences and itsissue on financials.

2. Consolidation: Ind AS 110 defines controland provide extensive guidance ondetermining the control. It's applicationmay result into change in consolidation ofentities.

3. Deferred Tax: The concept of temporarydifference or balance sheet under Ind AS12 is a major shift from the timingdifference approach covered in AS -22.

4. Business Combination: The scope of IndAS 103 is wider and requires mandatoryfair value of the assets acquired andliabilities assumed on acquisition.

5. First time adoption: Ind AS 101 providesmandatory exceptions and voluntaryexceptions for the Indian Corporates fromretrospective application. The selection ofvoluntary exception requires detailedstudy.

6. Revenue Recognition: Ind AS 115specifies five step recognition model. Themandatory application of IFRS -15 isdelayed by one year and it is expected thatthe same may be followed in India.

7. Extensive Disclosure: There is anincreased requirement of disclosures in IndAS which needs advance planning forextraction of information from existingsystem.

Conclusion:

With issue of Ind AS notification, now thereis an immense opportunity for professionalsand students in the new era of accounting. Itis expected than approx. 10,000 companieswill be required to apply IFRS (Ind AS) incoming years. With requirement ofcomparatives, in fact, Ind AS is to be appliedfrom 1st April 2015. Therefore this is a crucialtime for the corporate and advisors to assessthe requirement, carry out impact analysis,organise Ind AS training programs for staffand successfully converge to Ind AS.

Article


NIRC ACTIVITIES

News From NIRC

NIRC organised the following programs: For Members

Date

Program

Chief Guest(s)/Guest of Honour(s)/Speakers

Present

3.11.2015 Learning at Door Step (LDS)" - Session on XBRL - Latest Developments

CA Ankit Varshney from Webtel Electrosoft Pvt. Ltd.

CS Manish Gupta, CS Vinod Goel and Members

5.11.2015 Valedictory Function of 223rd MSOP

Chief Guest: CS G Gehani, Whole Time Director & CS, PSL Ltd.

CS Satwinder Singh, CS Nitesh Sinha, Mr. S K Nagar, CS Alka Arora and participants

6.11.2015 Inauguration of 224th MSOP

CS Harish K Vaid, Senior President (Corporate Affairs & Company Secretary of Jaiprakash Industries Ltd.

CS NPS Chawla, CS Manish Gupta, CS Dhananjay Shukla, CS Pradeep Debnath, CS Nitesh Sinha, Mr. S K Nagar, CS Alka Arora and participants

7.11.2015 Impact Seminar on Inbound Investment – Policies, Opportunities & Challenges

Chief Guest: CS Ravinder, IAS, Director, Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India

Impact Speakers: Mr. Bomi Daruwala, Joint Managing Partner, Vaish Associates; CS Atul Mittal, Director, Deloitte Touche Tohmatsu India Pvt. Ltd.; CS Vijay Gupta, Partner,VKGN Associates; Mr. Anoop Kapoor, Finance Coordinator, BHP Billiton Group;Mr. Pathik Arora, Assistant General Counsel & CS, Interglobe Hotels Pvt. Ltd. and Ms. Angira Singhvi, Principal Associate, Khaitan and Khaitan

CS NPS Chawla, CS Ranjeet Pandey, CS Rajiv Bajaj, CS Satwinder Singh, CS Manish Gupta, CS Pradeep Debnath, CS Manish Aggarwal, Mr. S K Nagar and members

7.11.2015 Special Session on Speedy Incorporation & Flawless E-Filing

CS D. Bandopadhyay, Registrar of Companies, Delhi & Haryana; Mr. Rajnish Kumar (Asstt. Registrar of Companies, Delhi & Haryana) and Mr. Nitin (Asstt. Registrar of Companies, Delhi & Haryana)

CS NPS Chawla, CS Rajiv Bajaj, CS Ranjeet Pandey, CS Vineet K Chaudhary, CS Manish Gupta, CS Pradeep Debnath, CS Manish Aggarwal, CS Nitesh Sinha and members


News From NIRC

9.11.2015 Diwali Pujan CS NPS Chawla, CS Rajiv Bajaj, CS Manish Gupta, CS Nitesh Sinha, Mr. S K Nagar, members and students

15.11.2015 Annual Sports Meet-2015 - Cricket; Football, Table Tennis, Badminton, Volleyball, Chess & Carrom

CS NPS Chawla, CS Ranjeet Pandey, CS Pradeep Debnath, Mr. S K Nagar, members and students

22.11.2015 Study Session on FEMA - Updates, Changes & Challenges

CS Atul Mittal, Director, Deloitte Touche Tohmatsu India Pvt. Ltd.;

Members of the Institute

22.11.2015 Punjab State Conference on Seizing Opportunities in the Winds of Change

Chief Guest: Shri Anil Joshi ,Hon'ble Minister for Local Bodies, Medical Education & Research, Govt. of Punjab Guests of Honour: Hon’ble Mr. Justice M.M. Kumar, Chairman, Company Law Board and Mr. A.K. Chaturvedi, Regional Director (Northern Region), Ministry of Corporate Affairs CS Atul Mehta, President, ICSI Guest speakers: CS Santosh Kumar (ROC, Chandigarh & Punjab), CS Satwinder Singh, CS Sanjeev Malhotra and CS Dinesh Gupta

CS NPS Chawla, CS Satwinder Singh, CS Ranjeet Pandey, CS Manish Gupta, CS Rajeev Bhambri, CS Manish Aggarwal, CS Anil Aggarwal, CS Neeraj Sharma, other Managing Committee Members of Amritsar Chapter, members and students

28.11.2015 Brainstorming Session on Annual Return

CS T. R. Ramamurthy, Practising Company Secretary

CS NPS Chawla and members of the Institute

29.11.2015 Participation in Airtel Delhi Half Marathon-Great Delhi Run 6 Km

CS NPS Chawla, CS Rajiv Bajaj, CS Ranjeet Pandey, CS Manish Gupta, CS Pradeep Debnath, members and students

30.11.2015 Valedictory Function of 224th MSOP

Chief Guest: CS H S Grover, Past Chairman, NIRC-ICSI Guests of Honour: CS Pankaj Gupta, Company Secretary, Goodyear and CS Avneesh Chopra, Company Secretary, Ford India

CS NPS Chawla, CS Nitesh Sinha, Mr. S K Nagar, CS Alka Arora and participants


CSBF

COMPANY SECRETARIES BENEVOLENT FUNDMEMBERS ENROLLED REGIONWISE AS LIFE MEMBERS OF THE COMPANY SECRETARIES

BENEVOLENT FUNDDURING THE PERIOD 21/10/2015 TO 20/11/2015

S.No. Name Mem. No.

1. MR. NIRAJ KUMAR MURARKAACS 41596

2. MS. VISHAKHA TANWARACS 40517

3. MS. SHAGUN TANEJAACS 38841

4. MR. RAHUL JHAWARACS 41743

"Paramjeet Singh , why you look so disturbed these days?""Finding it very difficult to deal with the new Time Management System of the Company.""What is the change?""It is now inclined more towards Clock Management of the Company especially duringMorning and Evening." *****"Sir, what for you have called me?""Due to your good exposure, you are being promoted to the top level of a new Departmentbeing created by our company.""What is that position?""The Controller of Dirty Tricks ."

—CS PARAMJEET SINGH, [email protected]

Members may send their contribution for this column at e-mail [email protected] for publication in theNIRC Newsletter-Insight. Decision of the Editorial Board of Newsletter in this regard will be final.

LIGHTER SIDE OF THE PROFESSION

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

OBITUARY

NIRC-ICSI deeply regret the demise of 3 young members from Northern Region:• CS Tanu Berry (ACS-28802) on 3rd December, 2015 at Ludhiana• CS Rahul Garg (ACS-25013) on 8th December, 2015 at New Delhi• CS Ravi Shankar Chauhan (ACS-20624) on 10th December, 2015 at GurgaonMay the departed soul rest in peace.We pray to the almighty to bestow courage to the bereaved family members towithstand the irreparable loss.

NIRC-ICSI Newsletter 23

Disclaimer: While every effort has been made and care has been taken in preparation of this Newsletter and to ensure its accuracy at the time of publication, NIRC of ICSI assumes no responsibility for any errors which, despite all precautions, may creep in. It is suggested that the readers should cross check all the facts and the relevant law position before acting on any matter.

1. Valedictory Function of 222nd MSOP

(30.10.2015): L to R Ms. Beena, CS Manish

Gupta, CS Arunava Choudhury,

(Executive Director, Chief Financial

Officer & Company Secretary,National

Industrial Corporation Ltd) – Chief Guest,

CS Sibanarayan Nayak, (Senior VP –

Finance,Era Group) – Guest of Honour

a n d C S N i t e s h S i n h a . B e s t

Participants/project report participants

standing.

2. Valedictory Function of 223rd MSOP

(5.11.2015): L to R CS Alka Arora, CS

Satwinder Singh, CS G Gehani, (Whole

Time Director & CS, PSL Ltd.) and CS

Nitesh Sinha. Best Participants/project

report participants standing. th3. Inauguration of 224 MSOP (6.11.2015):

Group photograph of participants

alongwith CS Harish K Vaid, Senior

President (Corporate Affairs & Company

Secretary of Jaiprakash Industries Ltd., CS

NPS Chawla, CS Manish Gupta,

Dhananjay Shukla, CS Pradeep Debnath,

CS Nitesh Sinha, Mr. S K Nagar, CS Alka

Arora

4. Valedictory Function of 224th MSOP

(30.11.2015): L to R CS NPS Chawla, CS H S

Grover, Past Chairman, NIRC-ICSI (Chief

Guest), CS Pankaj Gupta, Company

Secretary, Goodyear (Guest of Honour),

CS Pankaj Gupta, Company Secretary,

Goodyear, CS Avneesh Chopra, Company

Secretary, Ford India (Guests of Honour)

and CS Nitesh Sinha. CS Alka Arora and

Bes t Par t i c ipants/pro jec t report

participants standing.

5. Diwali Pujan (9.11.2015): CS NPS Chawla,

CS Rajiv Bajaj, CS Manish Gupta, CS

Nitesh Sinha, Mr. S K Nagar, members and

students performing diwali pujan.

1

2

3

4

5

Images

December, 2015

Posting date 15-16.12.2015 Printing Date : 11.12.2015

15-1715-17

If undelivered, please return to :Northern India Regional Council of the Institute of Company Secretaries of India 4, Prasad Nagar Institutional Area, New Delhi-110005

NIRC-ICSI Newsletter 24 December, 2015

1. Impact Seminar on Inbound Investment

– Policies, Opportunities & Challenges

(7.11.2015):First Technical Session – L to

R CS Manish Aggarwal, CS Atul Mittal,

(Director, Deloitte Touche Tohmatsu

India Pvt. Ltd.), CS Vijay Gupta

(Partner ,VKGN Associates) and

CS Pradeep Debnath.

2. Punjab State Conference on Seizing

Opportunities in the Winds of Change

(22.11.2015): Interactive Session – L to R

CS Manish Gupta, Mr. A.K. Chaturvedi

(Regional Director -Northern Region,

Ministry of Corporate Affairs), CS

Santosh Kumar, (ROC, Chandigarh &

Punjab) and CS Manish Aggarwal.

3. Punjab State Conference on Seizing

Opportunities in the Winds of Change

(22.11.2015): Technical Session – L to R

CS Dinesh Gupta, CS Satwinder Singh,

CS Sanjeev Malhotra and CS Sunil

Dhawan.

4. Annual Sports Meet-2015 (15.11.2015):

Group photographs of CS NPS Chawla,

CS Ranjeet Pandey, CS Pradeep Debnath,

Mr. S K Nagar, members and students

5. Participation in Airtel Delhi Half

Marathon-Great Delhi Run 6 Km

(29.11.2015): Group photographs of CS

NPS Chawla, CS Rajiv Bajaj, CS Ranjeet

Pandey, CS Manish Gupta, CS Pradeep

Debnath, members and students

1

2

3

4

5