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SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Aug 16, 2020

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Page 1: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 2: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

SEMINAR ORGANISING COMMITTEE

• Mr. Roshan Lal Nad, ACS

• Mr. Rahul Jindal, ACS

• Mr. Rahul Roy, ACS

• Mr. Gaurav Kr Agarwal, ACS

• Mr. Pankaj Kumar Singh, FCS

• Mr. Kanan Bansal, ACS

• Ms. Neeta Malhotra, ACS

• Mr. B. K. Parui, ACS

• Ms. Ritu Ritolia, ACS

• Mr. Rambabu Pathak, ACS

Page 3: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

MANAGING COMMITTEE - 2020

Designation Name

Chairman CS Roshan Lal Nad

Vice Chairperson CS Rahul Jindal

Secretary CS Rahul Roy

Treasurer CS Gaurav Kumar Agarwal

Member CS Kanan Bansal

Member CS Neeta Malhotra

Member CS Pankaj Kumar Singh

Page 4: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

ICSI-EIRC - 2020

Designation Name

Chairman CS PRIYADARSHI NAYAK

Vice Chairman CS SUDHIR KUMAR BANTHIYA

Secretary CS BIMAN DEB NATH

Treasurer CS RAJESH MITTAL

Member CS RAJESH CHURA

Member CS ANIL KUMAR DUBEY

Ex-Officio Member CS DEEPAK KUMAR KHAITAN

Ex-Officio Member CS SIDDHARTHA MURARKA

Co-opted Member SHRI D BANDOPADHYAY

Page 5: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

ANNUAL ACTIVITY OF

DHANBAD CHAPTER - 2020

In pursuance of the decision taken in the General Meeting of the members and students of ICSI of

Dhanbad held during the month of October, 2004, the ICSI decided to establish a Chapter at Dhanbad in

December 2004 and accordingly the Dhanbad Satellite Chapter was established in December 2004. It started to

function with effect from 1st January 2005 under the guidance of C.S. K.N. Mukhopadhyay, Company Secretary,

BCCL. Ever since the establishment, the Chapter has grown from strength to strength and since 2009, it has

become a full fledged Chapter, functioning in a rented premises at North End Convent School, Police Line,

Dhanbad. Dhanbad Chapter is presently running at “B-14, Old Doctors Colony, Jagjivan Nagar, Dhanbad” which is

allotted on a nominal rent with the efforts of CS B. K. Parui. The important activities of the chapter during the year

2019 are summarized in this report as under:-

1. ENROLLMENT OF STUDENTS

Dhanbad chapter is taking all efforts to bring out the best talents to this profession and owing to the continuous

efforts, students are getting enrolled in Foundation, Executive and Professional Programme. From 1st January

2014 onwards, full switchover to online registration process has been implemented by the ICSI. Students are being

provided help for online registration by the Chapter as per their need. 151 students enrolled in 2019 from Dhanbad

in foundation and executive programme.

2. ORAL COACHING CLASSES

Oral Teaching indeed brings up the students together and imparts many talents in the class room situation. They

develop many soft skills including interpersonal relations, communication skills and emotional understanding with

each other, besides their learning skills on their curriculum. Sincere efforts are being made to run Oral Coaching

Classes for Executive/Foundation Programmes.

Page 6: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

3. CAREER AWARENESS PROGRAMME

Career Awareness programmes are the guiding programmes for the students which helps them to undergo this

course. During the year 2019, Thirteen Career Awareness programmes were organised by Dhanbad Chapter at

different Higher Secondary Schools/colleges. These Programmes were really fruitful and students are getting

enrolled in Foundation/Executive programme.

4. FULL DAY WORKSHOP ON “Role of MSME in Indian Economy” and “Impact of GST on Business and

other Stakeholders ” :

Chapter organized a One day workshop on “Role of MSME in Indian Economy” and “Impact of GST on Business

and other Stakeholders ” on 19th March 2019 (Sun). Chief Guest of the Workshop was Sh. R. S. Mahapatra,

Director (Personnel), BCCL, Dhanbad & Speaker was CS Arani Guha & CS Kishan Kumar Sharma. CS Ritu Ritolia

was the Programme Coordinator.

5. STUDY CIRCLE MEETINGS : Chapter organized SIX (06) Study Circle Meetings on different topics.

6. ORIENTATION PROGRAMMES : Every students registered for Foundation/Executive programme on or after 1st

June 2019 is required to undergo orientation programme. Two such programmes were conducted in Sept & Oct

2019.

7. EXAMINATION CENTRE

Like every year, June and Dec Session Exam of the Institute were held successfully at DAV Public School,

KoylaNagar, Dhanbad.

8. SEMINAR

Every year, one Annual Seminar is organized by the Chapter in a befitting manner. Twelve such Seminars were

organized since 2005 on different matters for the benefit of the Members, Professionals, Executives, Senior

Management Officials, students and others except the year 2010. This year, the 14th Annual Seminar is being

organized on “Dispute Resolution Mechanism under IBC (Insolvency & Bankruptcy Code)” on 02.02.2020 at Hotel

SONOTEL, Saraidhela, Dhanbad.

Page 7: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

8. SPECIAL PROGRAMMES:

Dhanbad Chapter also celebrated/organised the following programmes with the participation of Members of

Managing Committee, Faculty and Students of Dhanbad Chapter of ICSI.

S. No. Name of the Programme

1. Saraswati Puja

2. Republic Day Celebration

3. PCS Day Celebration

4. Van Mahotsava Divas

5. GST Day Celebration

6. Company Law Quiz

7. Live Webcast from ICSI for students

8. Moot Court Competition

9. Communication/Soft Skills development programme for

students

10. “Samadhan Divas”-Zero Grievance Day

11. Swachh Bharat Abhiyan

12. Independence Day Celebration

Page 8: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Dear Professional Colleagues,

I am happy to inform you that Dhanbad Chapter of The Institute of Company Secretaries ofIndia (ICSI) is organizing 14th Annual Seminar of one day on “Dispute Resolution MechanismUnder IBC” on 02nd February, 2020 (Sunday).

I would like to pass on my greetings for The New Year and The Republic Day. Moreover I wisha great success and a bright future to all the students who are waiting for their result of ICSIExecutive and Professional Course this February.

It was the need of time to conduct this seminar because several changes have taken place during this period. Inter alia:Recent amendments in Companies Act, introduction of eForm INC-22A-ACTIVE (Active Company Tagging Identities andVerification), DIR-3 KYC etc. which is a matter of great concern.

Moreover, to facilitate the corporate sector to comply with the Secretarial Standards, the SSB has formulates GuidanceNotes. Clarity over the same was an emerging issue.

I look forward that it will be a good and fruitful platform for all the participants in the seminar to gain a sustainableknowledge in the area of operation and will eventually lead to enrichment of their creative capacity.

I convey my sincere thanks to Chief Guest, Guest of Honor, all the delegates, chapter office bearers, Advertisers and membersof the organizing committee for their unstinted co-operation and support. I do hope that the Seminar will be a great success.

Roshan Lal Nad, ACS

Chairman,

Dhanbad Chapter of EIRC of ICSI

CHAIRMAN’S COMMUNIQUÉ

Page 9: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Dear Professional Colleagues,

I am Happy to inform you that Dhanbad Chapter of The Institute of Company Secretaries ofIndia(ICSI) is organising 14th Annual Seminar on the Topic Dispute Resolution Mechanismunder IBC for One day on 02nd February 2020.(Sunday)

First of all, I would like to wish you all a Very Happy New Year and 71st Republic Day. Further, Iwould like to wish a great Success for all those students who have qualified ICSI FoundationProgramme.

It was noted that various changes are coming day by day in the government rules and regulations and one of them isInsolvency and Bankruptcy Code which enacted in 2016. The main purpose of the code is to consolidate and amend the lawsof existing framework by creating a single law for insolvency and bankruptcy. The code aims to protect the interests of smallinvestors and make the process of doing business less cumbersome. In short we can say that it is one of the step for ease ofdoing business.

Hence, I look forward participation of maximum number of participants in this vital topic which will be discussed in theseminar in detail by our eminent speaker and I hope the audience will clear their doubts relating to this code.

I Convey my sincere thanks to the Chief Guest, Guest of Honour,all the delegates, Chairperson of the Chapter, Advertisers andthe Members of managing committee for their cooperation and support.

I do hope that the Seminar will be a great success.

Rahul Roy, ACS

Secretary,

Dhanbad Chapter of EIRC of ICSI

SECRETARY’S COMMUNIQUÉ

Page 10: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Rahul Parasrampuria is an associate member of Institute of companysecretaries of India along with a commerce graduate from CalcuttaUniversity.

Driven by the interest and passion towards corporate litigation, he ispresently running his proprietorship firm providing legal and advisoryservices in the field of corporate Law viz insolvency and bankruptcy code ,Companies Act etc.

he has also been regularly appearing before National Company Lawtribunal and National Company Law appellate tribunal Delhi.

Apart from taking sessions in in insolvency and bankruptcy code , he isalso a speaker in GST.

he is also regular in giving sessions and seminar at Chartered AccountantsInstitute, Cost Accountants Institute and ICSI.

He is also visiting faculty at Bhawanipur Gujarati education societycollege.

BRIEF PROFILE OF SPEAKER –CS RAHUL PARASRAMPURIA

Page 11: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

MESSAGE

Page 12: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 13: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

CROSS BORDER INSOLVENCY IN INDIA :

WHY THERE IS A NEED FOR ADOPTION OF

UNCITRAL LAW IN INDIA

Rahul Roy, ACSemail : [email protected]

IntroductionIndia is one of the fastest Developing Country in the world and there is no doubt that the category of developing will be changed todeveloped. There has been many foreign countries who invests in India as a one stop Investment further safest investment zone butonly getting money through investment is not only the duty of nation. As a nation we have the duty to protect the foreign investors.When a company becomes insolvent there are necessary steps to be taken in order to protect the foreign investors to protect theirrights. But looking at the aspect of cross border insolvency, there has been limited laws dealing with it. The present laws related to crossborder insolvency are Section 234 and 235 of Insolvency & Bankruptcy Code, 2016 (hereafter referred to as “IBC”). India can ratifybilateral treaties in relation to insolvency proceedings with particular country with which reciprocal arrangements and further can makea letter of request for an insolvency proceedings. But there are certain defects and inconsistencies in present legislation and thereby thecountry is in stage to adopt the United Nations Commission on International Trade Law (hereafter referred to as “UNCITRAL”) ModelLaw on cross border insolvency by introducing a bill for it and adding it as a new chapter to IBC.At present, India has to enter into bilateral agreements with other countries which is different for every nation but when adopting theUNCITRAL Model law it would be same for all the countries who has signed the treaty. Making proper legislation for cross borderinsolvency would lead to further increased investment of the foreign nations in Indian companies.WHAT ACTUALLY IS CROSS-BORDER INSOLVENCYInsolvency means a state when an organization or an individual is not able to fulfil its financial burdens which are due against the lendersin term of debts. When a company is declared as an insolvent there are certain procedures which a company goes through i.e. there areinformal meeting which are organized between the company and the creditors for making an alternative mode of paying the debts.When the outcome of such meetings are not as per expected due to poor management of cash or the cash inflow is less than expectedthen the company can be declared as insolvent by performing certain insolvency proceedings where the liquidator would acquire all theassets of the company and evaluate them and liquidate those assets in order to pay off the debts.The concept of cross border insolvency refers to treatment of financially burdened debtors where the assets of the debtors are in morethan one country or the creditors are in more than one country.With increase in the globalization, the investment of different countries in India has also increased. With such increase in investmentthese foreign nations should be given a protection to their investment as to assure them that their investments are safe in India. Propercross border insolvency laws is necessary to protect the rights of foreign investors. IBC has been formulated by the legislation in order toget speedy and smooth disposal of the cases in regards to the insolvency and bankruptcy. Contd….

Page 14: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

PRESENT LAW ON CROSS BORDER INSOLVENCY AND ITS DEFFECTSAt present, cross border insolvency is regulated by Section 234 and 235 of IBC. Section 234 of the code states that the CentralGovernment can make any agreements with the foreign country to start with the insolvency proceedings. Central Government will do sowith those countries with which there are reciprocal arrangements.While further Section 235 of the said code states that the letter of request can be made to the authority of foreign nation with whichsuch reciprocal arrangements have been made under Section 234. This application should be addressed to the relevant authority that isan adjudicating body in a particular country to provide for evidence in relation to assets of the debtor in country. This application canonly be sent to the countries having reciprocal arrangements with India. But entering in the reciprocal arrangements with differentcountries is itself a very cumbersome process as this method would intake a lot of time and the objective of the code i.e. timely recoveryof debts would not achieve. Also, when the assets are located in different countries it would make the procedure of insolvency muchmore complicated through reciprocal agreements.While further looking into the code, making reciprocal arrangements doesn’t state the procedure which has to be established in order toconduct the insolvency procedure. As there is no proper procedure for the insolvency procedure to be conducted then that makes thelaw incomplete. By only giving the right to make reciprocal arrangements with countries through the act doesn’t solve the problem ofcross border insolvency.When there is a situation that certain countries have entered into reciprocal arrangements and if for every nation there is a differentprocess then it wouldn’t work out properly as there would be a point of conflict if in one insolvency proceedings there are creditors fromdifferent countries or assets of the company in different countries. As reciprocal agreements doesn’t have a feature of coordinating theprocedure of insolvency which is in concerned with multiple jurisdiction.When we compare those three dimensions with the IBC out of which the code has adopted only the first dimension as the definition ofpersons in code also includes the “persons not resident in India”. Here in this definition, the new code permits the creditors of theforeign nation to be a part of the insolvency proceeding or to commence the procedure as the foreign creditors having the same rightswhich the Indian resident possess in relation to the distribution of assets when the company is liquidated by being insolvent. While thesecond and the third dimensions are not dealt by the code.As the code lacks any mechanism for seeking proper procedure of insolvency with respect to having different jurisdiction where in Indiancourts have to seek assistance of foreign courts in case of insolvency proceedings. Though there is implication of bilateral arrangementsbetween nations under the code but it doesn’t show any proper implementation procedure for the insolvency.While when the situation arises where India doesn’t have a bilateral agreement with that particular country and Indian debtor’s assetsare in that country, then there will be no assistance on remedies given to insolvency professional in order to have evidence on suchassets.

Contd…

Page 15: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

UNCITRAL MODEL LAW: AN OVERVIEWThe need of this model law aroused due to the issue that every nation has its own specific manner of managing the issues of CrossBorder Insolvency and bankruptcy laws which were too varied. A few nations had made arrangements with each other but still therewas no uniform way to deal with the Cross Border Insolvency issues. For dealing such issue, UNCITRAL received the content of ModelLaw on Cross Border Insolvency issues on 30 May 1997 and thereby was passed by United Nations (UN) General Assembly on 15December 1997.To provide greater flexibility, it was passed as a model law and not as a convention so that the nations can make necessary changes intheir domestic laws regarding cross-border insolvency as per the model. Till now 44 states have adopted this model law. It focuses onauthorizing, encouraging cooperation and coordination between jurisdictions, rather than attempting the unification of substantiveinsolvency law, and respects the differences among national procedural laws.BENEFITS OF ENACTING THE UNCITRAL MODEL LAWWith the enactment of this model law, India will become an attractive destination for foreign creditors for investment. The three maineconomic benefit achieved by Model Law are :

reduction in time for exchanging necessary information between countriesincrease in credit recovery efficiency andcooperation and assistance helps in preserving the company’s assets from dissipating, resulting in successful reorganization.7

This law is much clearer than the IBC in terms of remedy and procedure followed for foreign entities.This law is more flexible as a State can make changes in the model law as per the conditions and the local insolvency laws. Ex. US lawprovide remedies only after foreign proceedings are recognized.A country could refuse validity of the foreign proceedings if such is against the public policy of the country.Through this Model Law coordination between courts and insolvency professionals will exist in domestic as well as foreign jurisdiction.The relief that is provided after recognizing foreign-main proceedings is in form of granting stay on local proceedings by creditors againstdebtor undergoing insolvency. This suggests that moratorium would be imposed on assets of debtor and administration of debtor’sassets in that State is to be entrusted to foreign representative.CONCLUSIONAs we look into the aspect of cross border insolvency, it requires a proper legal framework. This necessity has been recognized by thelegislature as without proper legal provisions there would be a threat for the foreign investors to invest in India. While when we look atthe current situation in India, India is inviting many foreign nations to invest in the country and to even set up their manufacturing unitsin the country. So in order to save their interest and motivate them to invest in the country the formulation of the law is of greatimportance.

Source :The Gazette of India Publication: The Insolvency and Bankruptcy Code,2016The Indian Law Journal ArticlesBusiness Newspapers.Various Editorial edition Magazines from Google.

Page 16: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

With Best Compliments from :

IOCL (IBP DIVISION)

With Best Compliments from :

With Best Compliments from :

Solar Industries India Ltd.

Tata-Hitachi Construction

Machinery Co. Pvt. Ltd.

Page 17: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

IMPACTS OF GST IN INDIAN ECONOMY

Shri Rakesh Jha

DEO, CS Office, Jamtara

The introduction of the goods and service tax will be a very noteworthy step in the field of Indirect Tax reforms in India. By merging alarge number of central and state taxes into a single tax, GST is expected to significantly ease double taxation and make taxation overalleasy for the industries. For the end customers, the most beneficial will be in terms of reduction in the overall tax burden on goods andservices. Introduction of GST will also make Indian products competitive in the domestic and international market. The purpose oftaxation system holds great promise in terms of sustaining growth for the Indian Economy.

The goods and services tax (GST) is another such undertaking that is expected to provide the much needed stimulated for economicgrowth in India. By transforming the existing base of indirect taxation towards the free flow of Goods and Services. GST is also expectedto eliminate the cascading effect of taxes. India is projected to play an important role in the world economy in the years to come. Theexpectation of GST being introduced is high not only with in the country, but also within neighboring countries and developedeconomies of the world.

There are various benefits of GST to the Indian economy are as follows:-

• Removal of bundled indirect taxes such as VAT, CST, Service Tax, CAD, SAD and Excise.• Less tax compliance and simplify tax policy compared to current tax structures.• Removal of cascading effect of taxes either i.e., remove tax on tax.• Reduction of manufacturing costs due to lower burden of tax on the manufacturing sector. Hence prices of consumer goods will be

lightly to come down.• Lower the burden on the common man i.e., public will have to shed less money costly earlier .• Increased demand and consumption of goods.• Increased demand will lead to increase supply. Hence, this will ultimately lead to rise in the production of goods.• Control of black money circulation as the system normally followed by traders and shopkeepers will be put to a mandatory check.• Boost the Indian economy in the long run.

These are possible only if the actual benefit of GST is passed on to the final consumer. There areother factors, such as the seller’s profit margin, that determines the final price of goods.

Page 18: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

GST also has impact on the Indian economy are as follows:-

• Reduces tax burden on producers and faster growth through more production. The current• Taxation structure, pumped with myriad tax clauses, prevents manufactures from producing to their optimum capacity and retards

growth. GST will take care of these problems by providing tax credit to the manufactures.• Different tax barrier, such as check post and toll plaza, lead to wastage of unpreserved items being transported. These penalties

transforms into major cost due to higher need of buffered stock and warehousing cost. A single taxation system will illuminate thisroad block.

• There will be more transparency in the system as the customer will know exactly how much taxes they are being charged and whatbase.

• GST will act to the government revenues by extending the tax base.• GST will provide credit for the taxes paid by producers in the goods or services chain. These are expected to encourage producers to

raw materials from different registered dealers and is hoped to bring in more vendors and suppliers under the preview of taxation.• GST will add to the government revenues by extending the tax base.• GST will remove the custom duties applicable on exports.

With Best Compliments from :

Page 19: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 20: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

The Companies Act, 2013 (CA 2013), dispenses with the cumbersome and time consuming process for mergers provided for under theCompanies Act, 1956 and lays down a simple, fast track merger procedure for the merger of certain companies like holding andsubsidiary companies, and small companies. This new move seems like a simplified procedure, and a move in the right direction withregards to the class of companies covered under these provisions. This would result into faster decisions on approvals for mergers andamalgamations resulting effective restructuring in companies and growth in the economy.

This is a new provision (Section – 233 of CA 2013) and seeks to provide for merger or amalgamation between two small companies orbetween a holding company and its wholly owned subsidiary company by giving a notice of the proposed scheme inviting comments orobjections or suggestions by both the transferor and the transferee company and Registrar, Official Liquidator or persons affected by thescheme.

The scheme is to be approved by the respective members at a general meeting holding ninety per cent of total number of shares and bynine-tenth in value of the creditors of respective companies. Both the transferor and transferee company must file declaration ofsolvency. “Transferee company shall file a copy of the approved scheme with the Central Government”. If the Central Government is ofthe opinion that such a scheme is not in public interest or in interest of the creditors, it may file an application before the Tribunalstating its objections and requesting it to consider the scheme under section 232. On registration of the scheme, the transferor companyshall be deemed to be dissolved. This provision also provides for effects of registration of the scheme with the Registrar.

Procedure for merger of small companies:

This sub-section provides for an option to both small companies and holding and its subsidiary companies to 'use the provision of section232 for the approval of any scheme for merger or amalgamation' Looking to the need to get Government's consent, which quite oftenmay result in unnecessary bureaucratic delays and hurdles. Section 233 of CA 2013, which reads as follows:

Notwithstanding the provisions of section 230 and section 232, a scheme of merger or amalgamation may be entered into between twoor more small companies or between a holding company and its wholly-owned subsidiary company or such other class or classes ofcompanies as may be prescribed, subject to the following, namely:—

“LAW AND PROCEDURE FOR FAST TRACK

MERGERS AND AMALGAMATIONS”

Binit Thakur, ACSPracticing Company Secretary,

B.Com (Hons), ACS, LL.B, CAPSM

email : [email protected]

Page 21: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

a notice of the proposed scheme inviting objections or suggestions, if any, from the Registrar and Official Liquidators where registeredoffice of the respective companies is situated, or persons affected by the scheme within thirty days is issued by the transferor companyor companies and the transferee company;

the objections and suggestions received are considered by the companies in their respective general meetings and the scheme isapproved by the respective members or class of members at a general meeting holding at least ninety per cent of the total number ofshares;

each of the companies involved in the merger files a declaration of solvency, in the prescribed form, with the Registrar of the placewhere the registered office of the company is situated; and

the scheme is approved by majority representing nine-tenths in value of the creditors or class of creditors of respective companiesindicated in a meeting convened by the company by giving a notice of twenty-one days along with the scheme to its creditors for thepurpose or otherwise approved in writing.

The transferee company shall file a copy of the scheme so approved in the manner as may be prescribed, with the Central Government,Registrar and the Official Liquidator where the registered office of the company is situated.

On the receipt of the scheme, if the Registrar or the Official Liquidator has no objections or suggestions to the scheme, the CentralGovernment shall register the same and issue a confirmation thereof to the companies.

If the Registrar or Official Liquidator has any objections or suggestions, he may communicate the same in writing to the CentralGovernment within a period of thirty days:

Provided that if no such communication is made, it shall be presumed that he has no objection to the scheme.

If the Central Government after receiving the objections or suggestions or for any reason is of the opinion that such a scheme is not inpublic interest or in the interest of the creditors, it may file an application before the Tribunal within a period of sixty days of the receiptof the scheme under sub-section (2) stating its objections and requesting that the Tribunal may consider the scheme under section 232.

On receipt of an application from the Central Government or from any person, if the Tribunal, for reasons to be recorded in writing, is ofthe opinion that the scheme should be considered as per the procedure laid down in section 232, the Tribunal may direct accordingly orit may confirm the scheme by passing such order as it deems fit:

Provided that if the Central Government does not have any objection to the scheme or it does not file any application under this sectionbefore the Tribunal, it shall be deemed that it has no objection to the scheme.A copy of the order under sub-section (6) confirming the scheme shall be communicated to the Registrar having jurisdiction over thetransferee company and the persons concerned and the Registrar shall register the scheme and issue a confirmation thereof to thecompanies and such confirmation shall be communicated to the Registrars where transferor company or companies were situated.

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The registration of the scheme under sub-section (3) or subsection (7) shall be deemed to have the effect of dissolution of the transferorcompany without process of winding-up.

The registration of the scheme shall have the following effects, namely: —

transfer of property or liabilities of the transferor company to the transferee company so that the property becomes the property of thetransferee company and the liabilities become the liabilities of the transferee company;

the charges, if any, on the property of the transferor company shall be applicable and enforceable as if the charges were on the propertyof the transferee company;

legal proceedings by or against the transferor company pending before any court of law shall be continued by or against the transfereecompany; and

where the scheme provides for purchase of shares held by the dissenting shareholders or settlement of debt due to dissenting creditors,such amount, to the extent it is unpaid, shall become the liability of the transferee company.

A transferee company shall not on merger or amalgamation, hold any shares in its own name or in the name of any trust either on itsbehalf or on behalf of any of its subsidiary or associate company and all such shares shall be cancelled or extinguished on the merger oramalgamation.

The transferee company shall file an application with the Registrar along with the scheme registered, indicating the revised authorisedcapital and pay the prescribed fees due on revised capital:

Provided that the fee, if any, paid by the transferor company on its authorised capital prior to its merger or amalgamation with thetransferee company shall be set-off against the fees payable by the transferee company on its authorised capital enhanced by themerger or amalgamation.

The provisions of this section shall mutatis mutandis apply to a company or companies specified in sub-section (1) in respect of a schemeof compromise or arrangement referred to in section 230 or division or transfer of a company referred to in clause (b) of sub-section (1)of section 232.

The Central Government may provide for the merger or amalgamation of companies in such manner as may be prescribed.

A company covered under this section may use the provisions of section 232 for the approval of any scheme for merger oramalgamation.

“The benefit of the simplified procedure is available, inter alia, to two or more small companies or to a holding company and its wholly owned subsidiary companies.”

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Merger of a holding company with its wholly owned subsidiary or subsidiaries:

In the case of merger of a holding company with its wholly owned subsidiaries, to avail the simple procedure prescribed in section 233 ofCA 2013, it is necessary that the subsidiary company or companies must be wholly owned.

Transferor and Transferee:

The expression 'transferor' or 'transferee' is not defined in the CA 2013. However, in section 232(l)(b) of CA 2013 dealing with merger oramalgamation of companies, there is a mention "…. under the scheme, the whole or any part of the undertaking, property or liabilitiesof any company (hereinafter referred to as the transferor company) is required to be transferred to another company (hereinafterreferred to as the transferee company)".

Persons Affected:

The CA does not provide a definition of 'persons affected'. However, in general view, 'person affected' should refer apart from themembers, creditors and the employees of the companies, various concerned governmental authorities and sectoral regulatorsauthorities.

Members: The term “member” is defined in section 2(55) of CA 2013. It reads as follows:

“member”, in relation to a company, means-

the subscriber to the memorandum of the company who shall be deemed to have agreed to become member of the company, and onits registration, shall be entered as member in its register of members;

every other person who agrees in writing to become a member of the company and whose name is entered in the register of membersof the company;

every person holding shares of the company and whose name is entered as a beneficial owner in the records of a depository.

“A subsidiary cannot be a member of its holding company. Trust is not recognised in law and hence the beneficiaries of a trust cannotconsider as members where the shares are held by the trustees on behalf a trust.”

Creditors:

There is no definition of the term “creditor” in the CA 2013. A Creditor of a company is a person to whom the company owes a debt.

Declaration of solvency:

The expression 'solvency' is not defined in the CA 2013. The dictionary meaning of this term as "the ability to pay debts as they becomedue". In business the term means the ability of a company to meet its financial obligations. To be a 'solvent' company it should have theability to meet its current liabilities from out of its current assets.

Page 24: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Scheme for merger:

Neither Section 233 of CA 2013 nor the Companies (Compromises, Arrangements and Amalgamations) Rules 2016, indicate what ismeant by 'scheme' for merger in relation to small companies. However, in the context of an application for compromise or arrangementunder section 230 of CA 2013, Rule 25(3) of the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 provides thatany objections and/or suggestions to the proposed scheme of merger of small companies shall be accompanied by a statement, as far asapplicable, referred to in sub-section (3) of section 230 of the Act read with sub-rule (3) of rule 6.)

Procedure for Fast Track Merger Under Section 233 of The Companies Act, 2013 ("Act") Read with the Companies (Compromises,Arrangements and Amalgamations) Rules, 2016 ("Rules"), Laid out below is a step by step procedure setting out the procedure andtimelines for the transferor and transferee company:

StepNo.

Procedure Timeline Forms By

1 Convene a Board MeetingConvene a Board Meeting and pass the following resolutions:a) Approval of the scheme;b) Fixing date, time and place for convening of shareholders

meeting;c) Fixing date, time and place for convening of creditors meeting.

Both Transferorand TransfereeCompanies

2 Notice of the proposed schemeThe notice of the proposed scheme inviting objections or suggestions, ifany, shall be sent to the Registrar of Companies ("ROC") and OfficialLiquidators where registered office of the respective companies aresituated or person s affected by the scheme along with a copy of theScheme.

After holding theBoard meeting CAA.9 Both Transferor and

Transferee Companies

3 Convene a Board MeetingConvene a Board Meeting and pass the following resolutions:a) Approve Notice, Fixing date, time and place for convening of

shareholders meeting;b) Approve Notice, Fixing date, time and place for convening of

creditors meeting.

Both Transferor andTransferee Companies

4 Filing a declaration of solvency with the ROCEach of the companies involved merger files a declaration of solvency,in the prescribed form, with the ROC where the registered office of thecompany is situated, before convening the meeting of members andcreditors for approval of the scheme.

CAA.10Both Transferor andTransfereeCompanies

Page 25: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

StepNo.

Procedure Timeline Forms By

5 Convening a meeting of membersThe notice of the meeting sent to the creditors shall be accompaniedby -a) a statement, disclosing the details of the compromise or

arrangement, as far as applicable, as referred to in sub-section230 (3) of the Act read with sub-rule (3) of rule 6 of the Rules.

b) the declaration of solvency made in Form No. CAA.10;c) a copy of the scheme.

The objections and suggestions received by the ROC, Official Liquidatorand persons affected by the scheme are considered by the companiesin their respective general meetings and the scheme is approved bythe respective members or class of members at a general meetingholding at 90% of the total number of shares.

Clear 21 daysbefore the date ofthe meeting

Both Transferor andTransfereeCompanies

6 Convening a meeting of creditorsThe notice of the meeting sent to the members shall be accompaniedby -a) a statement, disclosing the details of the compromise or

arrangement, as far as applicable, as referred to in sub-section230 (3) of the Act read with sub-rule (3) of rule 6 of the Rules.

b) the declaration of solvency made in Form No. CAA.10;c) a copy of the scheme.

The scheme is to be approved by majority representing nine-tenths invalue of the creditors or class of creditors of respective companiesindicated in a meeting.

Clear 21 daysbefore the date ofthe meeting

Both Transferor andTransferee Companies

7 Filing of the Schemea) File a copy of Scheme and report of the result of each of the

meetings with the Regional Director.b) A copy of the scheme along with Form CAA. 11 shall also be filed

with:• the ROC in Form GNL 1;• the Official Liquidator through hand delivery or by registered

post or speed post.

Within seven daysfrom the conclusionof the meeting ofmembers orcreditors.

a) CAA.11

b)GNL - 1

Both Transferor andTransferee Companies

Page 26: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

StepNo.

Procedure Timeline Forms By

8 Approval of the Scheme by the Regional Director• On the receipt of the scheme, if the ROC or the Official Liquidator has no objections or suggestions to the

scheme, the Regional Director shall register the same and issue a confirmation thereof to the companies.

• If the ROC or Official Liquidator has any objections or suggestions, he may communicate the same in writingto Regional Director within a period of thirty days. If no such communication is made, it shall be presumedthat he has no objection to the scheme.

• If the Regional Director after receiving the objections or suggestions or for any reason is of the opinion thatsuch a scheme is not in public interest or in the interest of the creditors, it may file an application beforethe Tribunal in Form No. CAA.13 within a period of sixty days of the receipt of the scheme under sub-section (2) stating its objections and requesting that the Tribunal may consider the scheme under section232.

• On receipt of an application from the Regional Director or from any person, if the Tribunal, for reasons tobe recorded in writing, is of the opinion that the scheme should be considered as per the procedure laiddown in section 232, the Tribunal may direct accordingly or it may confirm the scheme by passing suchorder as it deems fit.

• If the Regional Director does not have any objection to the scheme or it does not file any application underthis section before the Tribunal, it shall be deemed that it has no objection to the scheme.

• Where no objection or suggestion is received to the scheme from the ROC and Official Liquidator or wherethe objection or suggestion of ROC and Official Liquidator is deemed to be not sustainable and the RegionalDirector is of the opinion that the scheme is in the public interest or in the interest of creditors, theRegional Director shall issue a confirmation order of such scheme of merger or amalgamation in Form No.CAA. 12.

9 Filing of confirmation order with the ROCA copy of the order confirming the scheme by the Tribunal or RD shallbe communicated to the ROC having jurisdiction over the transfereecompany and the persons concerned and the ROC shall register thescheme and issue a confirmation to the companies and suchconfirmation shall be communicated to the ROC where transferorcompany or companies were situated.

Within 30 days ofthe receipt of theorder ofconfirmation of thescheme.

Form INC-28

Both Transferor andTransferee Companies

vvv

Reference & Sources:1. Companies Act, 20132. Law and Procedure on Corporate Restructure, By- Shri, K. R. Sampath.

Disclaimer: The information is provided purely for informational and educational purpose only and based on my understanding/knowledge. This doesnot constitute any legal advice or legal opinions. Therefore, I cannot take any responsibility for the result or consequences of any attempt to use oradopt any of the information presented in this article/Compilation.

Page 27: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 28: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Black Diamond Explosives (P) Ltd.Surya Auto Campus, P.O.-Dhansar,

Dist. – Dhanbad-828109

With Best Compliments from :

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Page 29: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

VALUATION REQUIREMENTS IN INDIA

Business valuation is critical for transactions including fund raising, mergers & acquisitions (M&A), sale of businesses, strategic businessdecisions like family or shareholders disputes, voluntary value assessment and also for regulatory compliance, tax and financial reportingpurposes in India under RBI, Income Tax, Companies Act, SEBI Laws etc. Better Corporate Governance is also leading to requirement ofindependent Business Valuations.Though the valuation of a listed company whose shares are actively traded on a nationwide stock exchange in India can be derived fromits prevailing market price over a period of time, the valuation of an unlisted company and its shares is the real challenge.The eligibility to perform valuations also varies under different regulations in India. Recently from 1 February 2019 no one, other than anIBBI “Registered Valuer”, is authorised to conduct valuations under the applicable provisions of the Companies Act, 2013. The Insolvencyand Bankruptcy Code, SEBI ICDR Regulations, 2018 and SEBI (REIT and InvIT) Regulations have also defined Valuer as a person who isregistered under section 247 of the Companies Act, 2013.At the same time the Income Tax Act, 1961 has provision relating to taxability on issue of unquoted equity shares, if issued at a

premium. Only a SEBI Registered Merchant Banker is authorised to undertake such valuation by Discounted Free Cash Flow Method.Thus issue of Equity Shares by a Company may require dual valuation by an IBBI Registered Valuer as well as a SEBI Registered Merchant

Banker for meeting regulatory requirements of Companies Act and Income Tax Act respectively. Interestingly, though the Companies ActValuation requirement is of minimum value, the Income Tax valuation requirement is that of maximum value.A diagrammatic view of different transactions and applicable valuation requirements under different regulations in India is depictedbelow :

Gourav Kumar Agarwal, ACSPracticing Company Secretary

email : [email protected]

Page 30: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

A typical valuation process involves the following steps:

Understanding the purpose of valuation is the first step of the valuation process. Proper analysis of the valuation engagement will assistthe valuer in considering, evaluating, and applying the appropriate valuation approaches and methods to the subject interest.In case valuation is for regulatory or financial reporting purpose, emphasis is to be given on the legal and regulatory aspects which mayprescribe a particular valuation methodology and also a particular standard and premise of valuation in some cases. In such a case, thevaluer has to undertake the valuation within the defined framework.All valuations are done at a particular point of time. The valuation date is the specific date at which the valuer estimates the value of thesubject interest and concludes on his estimation of value. Date is critical for any valuation engagement as relative valuation (bybenchmarking of comparable peer companies or transactions) is heavily dependent on the external market conditions of the industry,economy, etc. on that date.Concluding ThoughtsIt is worth mentioning that even though Valuation is taking place since last six decades in India, however neither there has been anyformal Registration of Valuers with any central Authority nor any formal education or training leading to non-standardized valuations.Valuation in itself is evolving in India and is an inexact science.Section 247 of the Companies Act, 2013 read with Companies (Registered Valuers and Valuation) Rules, 2017 (Rules) brought theconcept of registered valuers to regulate the practice of valuation of property, stocks, shares, debentures, securities or goodwill or anyother assets or net worth of a company or its liabilities in India and to standardize the practice of valuation in line with internationalstandards leading to transparency and better governance.Valuation is evolving in India and the professional judgment of a valuer is thus critical in any valuation exercise. With effect fromFebruary 1, 2019, all valuations required under the Companies Act 2013 and the Insolvency and Bankruptcy Code (IBC) 2016 areconducted through registered valuers.

Source: https://www.corporateprofessionals.com, https://www.ibbi.gov.in,www.mca.gov.inReference: IBBI Circular No. IBBI/RV/019/2018 dated 17.10.2018 and Cir. No. IBBI/RVO/026/2019 dated 16.09.2019.

Page 31: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

RECENT AMENDMENTS TO THE

COMPANIES ACT, 2013

On July 31, 2019, the Companies (Amendment) Act, 2019 received the assent of the President of India. Some of the key highlights of theAmendment Act are set out below:- Amendments from the Second Ordinance which have been notified:Some of the key amendments covered in the Amendment Act were also previously covered in the Second Ordinance and have been ineffect from November 2, 2018. :-(i) re-categorising 16 offences under the Companies Act previously carrying criminal fines and/or imprisonment into defaults carryingcivil liabilities which are subject to an in-house adjudication framework of the Registrar of Companies ('ROC');(ii) seeking the approval of the Central Government instead of the National Company Law Tribunal ('NCLT') for certain actions (such asfor a change in the financial year, conversion of a public company to a private company, etc.);(iii) introducing a declaration regarding commencement of business in relation to companies incorporated after the Amendment Act,with the ROC having the power to cause a physical verification of the registered office;(iv) shorter timelines for registration of charges (created after the commencement of the Amendment Act) by a company with the ROC;and(v) providing for an additional ground of disqualification in relation to appointment as a director of a company (being a director in morethan 20 companies).- Additional amendments to the Companies Act (these are yet to be notified):The Amendment Act also sets out other amendments to the Companies Act, but these have not been notified as yet. The key proposedamendments are as follows:

(i) a public company will be required to only file its prospectus with the ROC, as opposed to the current requirement where the ROCregisters each prospectus only after verifying that its contents meet the prescribed registration requirements for prospectuses;

(ii) the National Financial Reporting Authority ('NFRA') will be able to perform its functions through various divisions. Additionally, whereprofessional or other misconduct is proved against a member or firm of chartered accountants, instead of debarring them from engagingin "practice as a member of the Institute of Chartered Accountants of India", the NFRA will debar such a member or firm from beingappointed as an auditor or an internal auditor, or from performing any valuation under Section 247 of the Companies Act;

Rajkumari SharmaStudent, Professional Programme

Page 32: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

(iii) where a company does not spend the amount in pursuance of its corporate social responsibility policy, the unspent amount will needto be transferred by the company (within 30 days from the end of the relevant financial year) to a special account opened by thecompany in a scheduled bank (which will be known as the 'Unspent Corporate Social Responsibility Account'), with such amounts to bespent within three financial years (failing which the unspent amount will be transferred to a fund specified in Schedule VII to theCompanies Act.

(iv) a new offence for a company not spending the prescribed amount on corporate social responsibility, or being in breach of (iii) above,has been introduced whereby the company will be punishable with a fine, and the officers in default will be punishable withimprisonment or a fine;

(v) where an investigation report of the Serious Fraud Investigation Office states that a fraud has taken place in a company in relation towhich any of its directors, key managerial personnel or officers have taken undue advantage or benefit (in the form of asset / property /cash / any other manner), the Central Government may present an application before the NCLT with regard to disgorgement of suchassets, property or cash;

(vi) in cases of oppression and mismanagement, where the Central Government is of the opinion that:- a person concerned with the conduct and management of the affairs of the company is guilty of fraud, misfeasance, negligence /default in carrying out his legal obligations, or breach of trust;- such person has not managed the company's business in line with sound business principles and commercial practices;- the manner in which such person has managed the affairs of the company is likely to or has caused serious damage to the company'strade, industry or business; or- such person has managed the company with the intent to defraud creditors, members or any other person; for a fraudulent purpose,or even in a manner prejudicial to public interest;then the Central Government can approach the NCLT for an order against such persons, with the NCLT having the power to determinewhether such persons are fit and proper persons to hold an office concerned with the conduct and management of the company; and

(vii) Currently, the ROC cannot present a petition for the winding up of a company on the grounds that it is just and equitable to wind upsuch company. However, this exception has been proposed to be deleted and the ROC will be able to file a petition for the winding up ofa company with the NCLT on these grounds.

vvv

Page 33: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Etiquette refers to good manners which help an individual leave his mark in the society. An individual must know how to behave at theworkplace. One needs to be disciplined at the workplace. Etiquette in simpler words is defined as good behavior which distinguisheshuman beings from animals. People around us must not feel embarrassed by our behavior. One should not behave irrationally orillogically in public. It’s not only about our own good manners, but making other people feel comfortable by the way we behave. It isessential for every individual to behave in a socially acceptable way.

Need for Etiquette

Etiquette makes you a cultured individual who leaves his mark wherever he goes.

Etiquette teaches you the way to talk, walk and most importantly behave in the society.

Etiquette is essential for an everlasting first impression. The way you interact with your superiors, parents, fellow workers, friends speaka lot about your personality and up- bringing.

Etiquette enables the individuals to earn respect and appreciation in the society. No one would feel like talking to a person who does notknow how to speak or behave in the society. Etiquette inculcates a feeling of trust and loyalty in the individuals. One becomes moreresponsible and mature. Etiquette helps individuals to value relationships.

A Professional or Corporate Etiquette refers to set of rules an individual must follow while he is at work. One must respect hisorganization and maintain the decorum of the place. To earn respect and appreciation, it is important to behave well at the workplace.

A Company Secretary is a vital link between the Company and its Board of Directors, shareholders, government and regulatoryauthorities. He Commands high position in the value chain and acts as conscience seeker of the company. Thus it becomes crucial tofollow some basic principles:

ARRIVE ON TIME

It shows that you are a true professional. It doesn’t matter how smart, capable and competent you are. If you’re habitually late, be it atwork or on deadlines, you run the risk of undermining your professional reputation. By being punctual, you show you respect to others.

PROFESSIONAL ETIQUETTES FOR COMPANY SECRETARIES

Rachna MakinCS Qualified

Page 34: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

DRESS APPROPRIATELY

When you are in the profession of a Company Secretary, dressing appropriately becomes significant. Dress codes range from formal tobusiness casual to casual, depending upon the needs of a situation.

With a view to enhance the visibility and brand building of the profession and ensuring uniformity, the Council of the Institute ofCompany Secretaries of India at its 148th Meeting has prescribed the following professional dress for members while appearing beforejudicial / quasi-judicial bodies and tribunals:

For male members: Navy Blue suit and white shirt with a tie (preferably of the ICSI) or navy blue buttoned-up coat over a pant or a navyblue safari suit

For female members: saree or any other dress of a sober color with a Navy Blue jacket.

Members in employment may wear the dress/uniform as specified by the employer for all employees or if allowed the aforesaidprofessional dress.

Practising Company Secretaries appearing before any tribunal or quasi-judicial body should adhere to dress code if any prescribed forappearing before such tribunal or quasi-judicial body or if allowed the aforesaid professional dress.

IMPORTANCE OF FIRST IMPRESSION

Making a good first impression is important. The way you dress, for instance, impacts the way you are perceived by others. Otherpeoples’ impressions of you should be positive so that they continue doing business with you. To accomplish this, start with your attire.Ask yourself if you look professional, or if your outfit needs some fine-tuning. Looking sloppy, messy and dirty will put off your coworkersand turn away potential clients.

WATCH YOUR BODY LANGUAGE

Maintain an erect posture when you are standing or sitting. Make sure your handshake is neither too firm not too soft. Avoid strolling orwalking too fast when you are in a group. Make sure you maintain an appropriate distance from people at all times. Avoid getting tooclose or staying too far when you are talking to someone.

LANGUAGE AND COMMUNICATION

Use of appropriate language aligns with good communication. Profanity, excessive slang or other crude or vulgar language may seemacceptable with friends, but it doesn't support your image as a good communicator at work. Professional etiquette requires beingconstantly mindful that you are in a diverse environment with people you do not know on a personal level. Speak as though someonefrom human resources is always listening.

Page 35: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

SHOW INTEREST IN OTHERS

When speaking with someone, show you are truly engaged. Do not play on your phone or computer, and if you have to answer acommunication say, “Excuse me one moment; I'm so sorry.” Maintain friendly eye contact. Listen. People will remember how you makethem feel, and nobody wants to feel as if they are ignored.

AVOID GOSSIP OR EAVESDROPPING

Gossip and eavesdropping are childish behaviors that have no place in the professional world. If you hear a rumor about someone, donot pass it on. People don’t always know or remember who starts a rumor, but they always remember who spreads it. If you walk intoan area, and it seems your co-workers don't know you are there, make sure to greet them politely to remove any chance that youaccidentally eavesdrop on their conversation.

Good Professional etiquette means that you act professionally and exercise proper manners when engaging with others in yourprofession. It is a valuable skill-set that will make you stand out from others, People with good etiquette are rewarded for theirprofessional and polite skills. Establishing good rapport is significant if you want to progress your professional future.

ICSI has issued Guidelines for Attire and Conduct of Company Secretaries as approved by the Council in its 266th Meeting held on 9thJanuary, 2020 at New Delhi, with a view to:

Provide the rules of etiquette and decorum for appearance before the courts, statutory bodies and quasi-judicial bodies such as NCLT,NCLAT, SEBI, CCI, etc.

Ensure respect for authority and to maintain dignity of the profession of company secretaries.

Prevent company secretaries from contemptuous behavior to the judicial authorities.

Guide company secretaries as to which attire is considered unsuitable, unconventional or inappropriate and interfering with the orderlyadministration of justice.

Project a professional image amongst the regulators and build a brand for the profession of Company Secretaries.

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Page 36: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 37: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

With Best Compliments from :

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Hirapur, Dhanbad

Mob. : 9835142767

Page 38: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

“Small Company" means a company, other than a public company,—

paid-up share capital of which does not exceed ten crore rupees or such higher amount as may be prescribed

Turnover of which as per profit and loss account for the immediately preceding financial year does not exceed one hundred crore rupeesor such higher amount as may be prescribed

Provided that nothing in this clause shall apply to—

(A) A holding company or a subsidiary company;

(B) A company registered under section 8; or

(C) A company or body corporate governed by any special Act;

According to the definition given above, the companies which fulfill the following provisions can be featured as the small company:

Company should be Private Limited

Paid Up capital should not be more than Rs. 10 crore

Turnover should not exceed more than Rs. 100 crore

Some of the certain annual compliances which are required to be followed by a small company are as follows:

Director's Interest:

Every director shall at the first meeting of the Board in which he participates as a director and thereafter at the first meeting in everyfinancial year or whenever there is any change in the disclosures already made, then at the first Board meeting held after such change,disclose his concern or interest in other entities and in the company which shall include the shareholding. The changes in the director'sinterest, if any, shall be given in forms MBP-1 in the next board meeting.

ANNUAL COMPLIANCES FOR SMALL COMPANIES

Manish AgarwalCS Qualified

Page 39: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Appointment of Directors:

At least one director must be 'Resident in India'. A person who stays more than 180 days in a calendar year India is regarded as a'Resident'

Appointment of Auditors:

Appointment of an auditor should be made in the BOD meeting within 30 days of Incorporation. Auditor shall be appointed in 1st AnnualGeneral Meeting (AGM) i.e. the 'Shareholders Meeting' for 5 years. The company shall inform the auditor concerned of his or herappointment, and also file a notice of such appointment with the Registrar by filing mandatory form ADT-1 within 15 days of themeeting in which the auditor is appointed.

Annual General Meeting:

The small Company should hold a general meeting (meeting of Shareholders) at the Registered Office each year as AGM. Notice ofAnnual General Meeting shall be sent to all the Directors, Members, and Auditors, legal representative of any deceased member and theassignee of an insolvent member. Notice shall be sent by hand or by ordinary post or by speed post or by registered post or by courier orby facsimile or by email or by any other electronic means.

Board meetings:

The Board shall hold its first meeting within 30 days of the date of incorporation of the company. Every Small Company shall hold at leasttwo meetings of the Board of Directors (BOD) in a financial year (April-March). That is to say 1 meeting of BOD in each half of thecalendar and the gap between two meetings shall not be less than 90 days. Directors can participate in BOD in person or through videoconferencing or another audiovisual mode which can be recorded.

Audit of Accounts:

The Company shall Coordinate with their auditors to prepare and file the Tax Audit Report on the prescribed due dates. It's a special &separate report required by the Income Tax Act in case the Annual Turnover exceeds INR 10 Million (USD 150 Thousand).

Filing of Financial Statements:

It would be mandatory to file the audited financial statements with the Registrar of Companies (ROC) together with Form AOC-4 and theconsolidated financial statements, if any, with Form AOC-4 CFS. Moreover, the Company shall send to all the members of the Company,all trustees for the debenture holders and to all persons being the persons so entitled, copy of the (approved) Financial Statements(including consolidated Financial Statements, if any, auditor's report and every other document required by law to be annexed/ attachedto the financial statements) at least 21 clear days before the Annual General Meeting. Except in the case where AGM is called on shorternotice pursuant to section 101(1)

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Annual Return:

Every Company shall file Its Annual Return within 60 days of holding of AGM or where no AGM is held in any year within 60 days fromthe date on which the AGM should have been held together with the statement specifying the reasons for not holding the AGM. With aview to facilitating ease of doing business and for reducing the burden of Small Company, the Central Government has prescribed anabridged form of Annual Return to be annually filed by Small Companies. The Annual Return of every Small Company shall be signed bythe company secretary or where there is no company secretary by the director of the company.

Apart from the above-mentioned compliances the company shall also maintain some registers which are mandatory namely register ofmembers, register of debenture holders, register of any other security holders, etc. However, as you strive to grow your Small Company,there is one thing to keep in mind, and i.e. ensuring its compliance. If you fail to do so, you can lose your protections and accrue fees andpenalties.

vvv

With Best Compliments from :

IDL Explosives LimitedHyderabad – 500018

(Wholly owned subsidiary ofGOCL Corporation Limited)

Page 41: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Whenever to run a company and to take any kind of decision the role of board of director have come into existence as Company is anartificial person it act through its board of Directors therefore an independent Board is needed to ensure better complianceManagement and to take unbiased decision.

An Independent board member is able to play a pivotal role in neutralizing any conflicts that arise among the board. In such a scenariorole of independent Director come into play as independent Director is the person who is responsible for taking unbiased decision incompany’s Board so as to ensure better corporate governance.

In order to meet this situation appointment of independent director is required and for this purpose Ministry of Corporate affairsdecided to conduct examination for such high level appointments.

This Article will cover the following key aspects of Independent Director:-

Meaning

Independent director is the person who in the opinion of board is an independent person and does not have any material monetaryrelationship with the company and its holding , subsidiary and Associate company apart from receiving approved fix Remuneration.

An Independent Director is a non executive director of a company and helps the company in improving corporate credibility andgovernance standard.

Qualification of Independent Director

It is expected from the independent Director to have appropriate skill, experience and knowledge in one or more fields of finance, law,management , sales ,marketing administration , research, corporate governance, technical operation or other disciplines related to thecompany’s business

The role of independent director is very crucial for effective Corporate Governance.

Company where appointment of Independent Director is mandatory

APPOINTMENT OF INDEPENDENT DIRECTOR :

AN IMPORTANT CRITERIA FOR COMPANY’S BOARD

Meenakshi Kandhway,Student, Professional Programme

Page 42: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Every listed public company shall have at least one-third of total no. Director as independent Directors and Central Government haveprescribed for unlisted public Company minimum two Director as independent. the criteria of unlisted public companies are as follow:-

• Paid up capital 10 Crore or more

• Turnover 100 Crore or more

• Outstanding loan, debentures and Deposit (in aggregate) 50 Crore or more

The Following classes of company shall not be covered by the above mentioned rules namely:-

• Pvt Co.

• Joint Venture

• A wholly owned subsidiary; and

• A dormant company as defined u/s 455 of the Act

Appointment criteria

There must be an Independent process for appointment of independent director. Databank may be used to appoint an independentDirector. Data bank containing names, addresses and qualification of persons who are eligible and willing to act as independentDirectors.

This Data Bank shall be maintained by any body, institute or association as may be notified by the Central Government, having expertisein creation and maintenance of such data bank

The Ministry of Corporate Affairs/the Central Government, vide its notification dated October 22, 2019 has amended the Companies(Appointment and Qualification of Directors)Fifth Amendment Rules, 2019 and also issued the Companies (Creation of Maintenance ofDirectors Databank of Independent Director ) Rules,2019. The effective date of this notification is December 1, 2019 (the effective Date).

The new norms shall be applicable to below category only:-

Those who are already serving as Independent director in the board of a company

Those professional who are intending to be appointed as ‘’Independent Director’’

The companies which are required to appoint Independent Directors

As per the new Amended Rules every individual who is already an existing Independent director in a company shall within a period of 3months from the commencement of said rules or individual intended to get appointed as an independent director after December1,2019 shall before such appointment apply (online) to the ‘’Indian institute of Corporate affairs at Manesar’’(the Institute) for inclusionof his name in the data bank for a period of 1 (one) year or 5 (five) years or for his lifetime as the case may be.

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Every individual whose name has been included in the data bank as above shall have to clear the online Proficiency self-assessment test(passing percentage will be minimum of 60% in aggregate) conducted by the Institute within one year from the date of inclusion of his/her name in the data bank.

In case the above test is not passed by the individual, his /her name shall stand removed from the data bank by the Institute. howeverthey are not disqualified they can be appointed as a normal director since the restriction shall apply only for appointment ofIndependent director.

However the Rules also provided an exemption from appearing the exam(online proficiency self-assessment (test) to those individualwho have already served for a period of 10 years or more as a director or key managerial personnel in a listed public company or in anunlisted public company having a paid up share capital of rupees ten crore or more.

Some other important criteria for Independent director:

Appointment of Independent Director shall be approved by the company in general meeting Independent director shall be appointed fora maximum period of upto 5 years. He can be appointed for less than 5 years as well. But the same shall be taken as one term’’ the termshall not exceeding more than 2 consecutive terms.

As per SEBI guideline a person must be an independent director not more than 7 listed Companies at a time.

The term and conditions of appointment of Independent Director shall also be posted on the company’s website, if any.

An independent director shall not be eligible to retire by rotation and shall not be counted for the purpose of computation of rotationalDirector.

In case Board Meeting is called at short notice in order to transact some urgent business, then the presence of at least 1 Independentdirector is mandatory.

It is the responsibility of Independent Director to declare their independence

At first board Meeting where he attend as the Director;

At the first meeting of Board of every financial year;

When a situation arises which effect his status of independence being an Independent director

He is not entitled to any stock option but receive remuneration by way of sitting fees.

Vacancy created by resignation or removal shall be filled by the Board/members within 3 months from the date of resignation /removal.

Conclusion:-

The purpose of this article is just to give an short overview about Independent Director in Company’s Board and try to elaborating therecent amendment in respect of their appointment process. However the reader must exercise their own Judgment and refer theoriginal source before any implementation.

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Page 44: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Introduction

As with most common law countries, Indian law may broadly be classified as substantive or procedural law. While substantive lawdetermines rights and liabilities of parties or confers legal status or imposes and defines the nature and extent of legal duties, procedurallaws prescribe practice, procedure and machinery for the enforcement or recognition of rights and liabilities. To put it another way,substantive laws are those that are enforced while procedure deals with the rules through which the substantive law is enforced.Insolvency resolution procedures in India were often perceived to be both operationally inadequate and lacking in efficacy, resulting inan adverse impact on both investor sentiment and the performance of domestic lenders. Additionally, with the existence of severaloverlapping legislations such as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ("RDDB Act"), the Securitisationand Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act") and the Companies Act, 2013("2013 Act"), along with multiple institutional frameworks established under these legislations, the process of insolvency resolution wascomplicated and time consuming, often taking about 5-6 years to complete. The Insolvency and Bankruptcy Code, 2016 ("Code") wasintroduced with the view to consolidate and amend the laws relating to reorganization and resolving the insolvency of corporates,partnerships and individuals. The Code is expected to help promote entrepreneurship, availability of credit and balance the interests ofall concerned stakeholders.

Steps involved in Corporate Insolvency Resolution Process (CIRP)

Issuance of Notice: A Notice shall be served by the creditor to the corporate debtor, granting him 10 days and requesting to pay thedues.

Initiation of Insolvency Resolution Process: In case of failure of any positive response by the debtor, the creditor can file an application inNCLT against the corporate debtor and initiate insolvency.

Admittance of the Application: Within 14 days of submitting the duly filled application, it shall be accepted and the corporate insolvencyprocess shall begin from the date.

In Case of Rejection of Application: In case of rejection, the applicant shall have to remove the errors pointed out by the authority,within 7 days.

Name of Proposed Resolution Professional: The name of the resolution professional has to be proposed along with the application.

JURISPRUDENCE OF RAISING DISPUTES UNDER IBC

by Shagnik Bhattacherjee

Page 45: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Once the application is accepted, the adjudicating authority proceeds with the process of insolvency in full earnestness. On average, ittakes around six months for this process to be completed.

What is a dispute?

Dispute is defined under Section 5(6) of the Insolvency and Bankruptcy Code, 2016 as:

“Dispute” includes a suit or arbitration proceedings relating to —

The existence of the amount of debt;

The quality of goods or service; or

The breach of a representation or warranty.

Section 8(2)(a) Insolvency and Bankruptcy Code, 2016 says that The corporate debtor shall, within a period of ten days of the receipt ofthe demand notice or copy of the invoice bring to the notice of the operational creditor—(a) existence of a dispute AND record of thependency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute.

The above both the sections draws our attention in the word ‘includes’, ‘Suit’ and ‘Arbitration Proceedings’. Moreover, Section 8(2) usethe word “AND” which means there must be existence of dispute and its suit or arbitral proceedings are pending before authority.

How to raise a dispute?

As per Section 8 and Section 9 of Insolvency and Bankruptcy Code, 2016, an operational creditor on the occurrence of a default by thecorporate debtor should deliver a demand notice along with invoice demanding payment of the amount due. The application filed withthe National Tribunal (NCLT) must be preceded, under section 8, by a demand to repay the debt. The corporate debtor should, within aperiod of 10 days from the date of receipt of notice, either repay the unpaid operational debt or mention the existence of a dispute orrecord of the pending suit or arbitration proceedings filed before the receipt of such notice or an invoice in relation to such a dispute.While a record of a pending suit or an arbitration proceeding filed before the receipt of notice or invoice in relation to the dispute wouldlead to an immediate cessation of further proceedings, the stand-alone term “dispute” has lent itself to interpretation by the courts.

The core issue before triggering Insolvency proceedings is to determine whether there exists a Dispute between Operational Creditorand Corporate Debtor.

The definition clause provides that the term “dispute” shall include a suit or an arbitration proceeding. Principles of statutoryinterpretation provide that the word in respect of which “includes” is used, bears both its extended statutory meaning and its ordinary,popular and natural sense, whatever is properly applicable. Also, the definition in relation to which “includes” is used would have anextended meaning, and cannot be restricted to receive its ordinary, popular and natural meaning. The meaning of the term “dispute” asdefined in the code would include other forms of dispute which have not culminated in judicial proceedings, in addition to the suit orarbitration proceedings. The Supreme Court has observed that the dispute must be pre-existing prior to the receipt of the demandnotice or invoice. A dispute raised after the application for CIRP cannot be a ground for rejection of such application.

Page 46: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

The true meaning of section 8(2)(a) read with section 5(6) of the code clearly brings out the intent of the code, that the corporate debtormust raise a dispute with sufficient particulars. In case a dispute is being raised by showing the records of dispute in a pending suit orarbitration, the dispute must also be relatable to the conditions provided under section 5(6). In addition, such dispute should have beenraised with or brought to the notice of the creditor.

Hence, for rejection of an insolvency application, the adjudicating authority does not have to go into the merits of the dispute as towhether such a dispute would withstand judicial scrutiny. However, it is important that the authority determines two things – firstly thatthe dispute raised is valid in its estimation and secondly that the dispute has been brought to the notice of the creditor before the noticeis served. The first of these two aspects is subjective, but the second is an objective assessment.

Now one may ask the question – ‘What if there is a genuine dispute between the parties, but parties didn’t prefer to initiate suit orarbitration proceedings?’ In “Essar Projects India Ltd. V. MCL Global Steel Pvt. Ltd”, wherein the Mumbai bench of NCLT, whileinterpreting the definition of Dispute under the code, held that dispute in existence means only when the same is raised before a courtor an arbitral tribunal prior to the date of receipt of a demand notice.

Disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise.This would lead to great hardship; in that a dispute may arise a few days before triggering of the insolvency process, in which case,though a dispute may exist, there is no time to approach either an arbitral tribunal or a court. One of the objects of the code quaoperational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enableoperational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process forextraneous considerations. It is for this reason that it is enough that a dispute exists between the parties.

Once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject theapplication under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute inthe information utility. It is clear that such notice must bring to the notice of the operational creditor the “existence” of a dispute or thefact that a suit OR arbitration proceeding relating to a dispute is pending between the parties. The Court does not at this stage examinethe merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical orillusory, the adjudicating authority has to reject the application.

The following observations were made by Apex Court:

The Adjudicating Authority must examine whether the notice of dispute in fact raises a genuine dispute. However, the AdjudicatingAuthority does not have any power to verify the adequacy of the dispute.

The definition of ‘dispute’ under Section 5(6) of the Code is inclusive and not exhaustive. It must be given wide meaning. The ‘dispute’ isnot limited only to a pending suit or a pending arbitration.

The objects of the Code is to ensure that the amount of operational debts, which is usually smaller than that of financial debts, does notenable them to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneousconsiderations. Therefore, the threshold has been set at establishing the existence of a dispute between the parties.

Page 47: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Therefore, a dispute is said to exist when there is a real dispute as to payment between the parties that would fall within the inclusivedefinition contained in Section 5(6) of the Code. However, Section 5(6) only deals with suits or arbitration proceedings which must“relate to” one of the three sub-clauses, either directly or indirectly.

Conclusion

The definition of the term ‘dispute’ has been expanded and is not restricted to pending suits or arbitration. It includes correspondencesexchanged between the parties showing a dispute relating to payment of the debt as well. If the term ‘dispute’ had been interpretedrestrictively, i.e. including only pending arbitration or suits, it would lead to initiation of unnecessary litigation and arbitrationproceedings by the corporate debtors in anticipation that the corporate insolvency resolution process would be initiated against them bythe operational creditors.

The IBC has taken its steps to regularize the insolvency process in India. The IBC Law was brought about with the objective to ensure thatease of doing business greatly improves in India. This law has simplified the winding up process in respect of companies, which wasearlier fragmented due to multiplicity of statutes as well as forums. It has amended over 11 legislations in India, bringing about one ofthe most significant change to commercial laws in India in recent times.

Glanville Williams, Learning the Law (Sweet & Maxwell, 1982) p. 19; Law Commission of India, 54th Report, p. 8.

Article by Raj Panchmatia, Peshwan Jehangir and Parth Gokhale, Khaitan & Co - Decoding The Code – A New Paradigm For InsolvencyDispute Resolution.

Existence of dispute under insolvency code By Abhishek Dutta, Vineet V Shrivastava and Manish Parmar, Aureus Law Partners

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Sources :

Glanville Williams, Learning the Law (Sweet & Maxwell, 1982) p. 19; Law Commission of India, 54th Report, p. 8.

Article by Raj Panchmatia, Peshwan Jehangir and Parth Gokhale, Khaitan & Co - Decoding The Code – A New Paradigm For Insolvency Dispute Resolution.

Existence of dispute under insolvency code By Abhishek Dutta, Vineet V Shrivastava and Manish Parmar, Aureus Law Partners

Page 48: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

The Economy of India is also characterized as a developing market economy. It is the world’s fifth largest economy by nominal GDP and the third largest by purchasing power parity according to the IMF . As we know that according to business concept the India’s economy is the biggest marketing economy in the world .

Economy :- Economy is a system which provides people with the means to work and earn living.

There are three Types of Economy

1.Centrally Planned Economy :- Only Government decide for Growth & Development of

Economy . For example :- Old Russia

2. Market Planned Economy :- The major participation of private Sector for Development &

Growth of Economy . The motive of this economy is profit

maximization. For Example :- America

INDIAN ECONOMY

Rahul Singh,Student, Foundation Programme

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3. Mixed Economy :- Here Public & Government both work together for growth & Development. Both take Decision for Development For Example :- India

Note :- Now India is a moving towards Mixed Economy to Market Economy

Accelerating time for Indian Economy Industrial Policy is a necessary step in this direction of development for Indian Economy.Industrial Policy Resolution (IPR) of 1991 :- The New liberalized industrial policy was announced by the Government of India on 24 July

1991.The New Industrial Policy scrapped the asset limit for Monopolies and Restrictive Trade Practices (MRTP) companies and abolished industrial licensing of all projects, except few groups. It has raised the limit for foreign participation or foreign capital in the country’s industrial landscape.

Economic ReformsChange in the policy for economic development in India

Liberalization:- The fundamental feature of the new economic reforms was that it provided freedom to the entrepreneurs to establish any industry /Trade /Business venture . The meaning of the economic liberalization is freedom for economic decision. Extension of Privatization :- Another feature of new economic reforms was the extension in the scope of privatization .Privatization is a process which reduces the role of state or public sector in country’s economic activity .The basic objective of privatization everywhere is to improve the performance of public sector UndertakingsGlobalization of Economics :- Globalization refers to a process of increasing economic integration and growing economic interdependence between countries in the world economy . Economic liberalization and privatization of public sector enterprises ultimately lead to globalization of the economy.

Growth of India by the Growth of Industrial SectorAfter 1991 the Reforms of Industrial Sector the Growth of India is Very Fast till the date. Current India is very fast developing Country in the world by the growth of industries in India. GDP is indicated in the table 1. GDP is the indicator of Growth .

Page 50: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Table 1 : Annual Growth Rate of Various Economic Activities

Source –Computed from the National accounts statistics of India, EPWRF and CSO and Economic Advisory Council Estimates

Conclusion :-Growth of All the Countries is depends upon the industrial Sector of the Country. If the Industrial Sector is Developed it means that Country is Developed. Like as China, America. Now the Industrial Sector of India is Developing that’s causes the India is a Developing country .In India ,Delhi is well developed state because of industrial sector in comparison to others state . If we want to Develop India, then we must have to focus on the industrial sector others states . Because industry provides :- Employment, Marketing Place and etc. this Will help to develop the Infrastructure that causes the problem of Unemployment is Solved. It will increase Per Capita Income If per capita Income is High then GDP is Also High .

1990-1991

and

2000-2001

1999-2000 and

2007-2008

2004-2005

and

2013-2014

Agricultural ,forestry & Fishing 2.6 2.8 3.8

Mining and Quarrying 3.9 5.1 2.8

Manufacturing 5.9 7.1 6.9

Electricity ,Gas and Water Supply 6.5 4.6 6.3

Construction 5.1 10.5 7.5

Trade ,hotels and Restaurants 7.2 8.8 9.0

Transport ,Storage and Communications 8.0 13.8 9.0

Financing ,Insurance and Real estate 8.4 8.8 11.5

Community and Personal Services 6.7 5.6 7.0

Total Services 7.5 7.9 9.2

GDP at Factor Cost 5.6 7.3 7.6

Page 51: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Gross Domestic Product (GDP) is the total monetary or market value of all the finished goods and services produced within a country’s bordersin a specific time period . The modern concept of GDP was first developed by SIMON KUZNETS for a US congress report in 1934. After theBretton Woods conference in 1944, GDP became a main tool for measuring a country’s economy . The Central Statistics Office (CSO), underthe Ministry of Statistics and Program Implementation (MoSPI), is the Responsible authority for Macroeconomic data Gathering and StatisticalRecord keeping . Though GDP is usually calculated on an annual basis , it can be calculated on quarterly basis as well . GDP includes all privateand public consumption , Govt. Outlays ,Investments, addition to private inventories paid in construction costs ,and the Foreign Balance ofTrade (Export – Import ) .GDP is important because it gives information about the size of the Economy and How an Economy is Performing .

The GDP in India is calculated using two different methods , first method is based on economic activity (at factor cost )and second is based onExpenditure (at market price ), Further calculation are made to arrive at Nominal GDP (using the Current Market Price) and Real GDP (InflationAdjusted). Among the four released numbers , the GDP at Factor Cost is the most commonly followed .the following industry sectors areconsidered in this cast : Table 1 : Annual Growth Rate of Various Economic Activities

Source –Computed from the National accounts statistics of India, EPWRF and CSO and Economic Advisory Council Estimates

GROWTH OF INDIA (GDP)

Shaheen Parween,Student, Foundation Programme

1990-1991 and

2000-2001

1999-2000 and

2007-2008

2004-2005 and

2013-2014

Agricultural ,forestry & Fishing 2.6 2.8 3.8

Mining and Quarrying 3.9 5.1 2.8

Manufacturing 5.9 7.1 6.9

Electricity ,Gas and Water Supply 6.5 4.6 6.3

Construction 5.1 10.5 7.5

Trade, hotels and Restaurants 7.2 8.8 9.0

Transport ,Storage and Communications 8.0 13.8 9.0

Financing ,Insurance and Real estate 8.4 8.8 11.5

Community and Personal Services 6.7 5.6 7.0

Total Services 7.5 7.9 9.2

GDP at Factor Cost 5.6 7.3 7.6

Page 52: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

Indian Economy is one of the fastest Growing Major Economy in the World and is Considered as the World’s 7th Largest Economy inMeasures of GDP . According to IMF , “India Ranked 142nd by GDP (Nominal) per Capita in 2018. But Presently ,Indian Economy is passingthrough a phase of sluggish economy Growth . In the year 2018-19, GDP growth of India at constant (2011-12= is estimated at 6.8% ascompared to the growth rate of 7,17% (2017-18).

India is the fastest developing country in the world. The best example set by the capital of India i.e. DELHI. The economy of Delhi is the 13thlargest among states and Union territories. Delhi economy has been largely fulled by the territory sector! Which contributes 83.6% to GSDP,Secondary sector 14.1% & primary sector 2.3% in 2018-19. The growth in tax collection is a big boost for the govt. The economic survey hasbeen pegged the per capita income of Delhi at rupees 365529 against the national average of rupees 125397. It means that average Delhiresidence continues to earn almost 3 times more than the average Indian. The budget of Delhi Govt. has been increased by rupees 41129 crore(2015-16) to rupees 53000 crore (2018-19).

India’s GDP :- Now the GDP of India is Forecasted by RBI.

Table 2: Projections - Reserve Bank and Professional Forecasters(Per cent)

2019-20 2020-21

Reserve Bank’s Baseline Projection

Inflation, Q4 (y-o-y) 3.7 4.0

Real GDP Growth 6.1 7.0

Median Projections of Professional Forecasters

Inflation, Q4 (y-o-y) 3.9 4.0#

Real GDP growth 6.2 7.0

Gross domestic saving (per cent of GNDI) 30.1 30.5

Gross capital formation (per cent of GDP) 31.0 31.0

Credit growth of scheduled commercial banks 12.0 12.9

Combined gross fiscal deficit (per cent of GDP) 6.1 6.0

Central government gross fiscal deficit (per cent of GDP) 3.3 3.3

Repo rate (end-period) 5.0 -

Yield on 91-days treasury bills (end-period) 5.2 5.4

Yield on 10-year central government securities (end-period) 6.3 6.5

Overall balance of payments (US$ billion) 15.1 10.0

Merchandise exports growth 1.5 6.3

Merchandise imports growth 0.5 7.1

Current account balance (per cent of GDP) -1.9 -2.0

Note: GNDI: Gross National Disposable Income.#: Q2:2020-21.

Source: RBI staff estimates; and Survey of Professional Forecasters (September 2019).

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From the above data analysis, we can conclude that in the upcoming year the GDP growth rate will be increase.

Conclusion :Troubles aside, India remains a massive global exporter an agricultural powerhouse & home to all 10 of the fastest growing cities inthe world. Real GDP growth is expected to recover in 2019-20, facilitated by favourable base affects & transmission of past monetary policyactions. The measures announced by the govt. in August - September to boost growth :- such as release of funds for capitalisation of publicsector banks, reforms in the FDI regime initiatives for exports and the real estate sector, reduction of stressed assets could push above thebaseline path. Intensification of global uncertainty around US - China trade tension a hard Brexit & geo- political tension are key downside risksto the baseline growth path. The latest projects involve a significant downgrade from June 2019 forecasts, Which expected the Indianeconomy to grew at 7.5% or more in the next 3 years.

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M/s U. K. Enterprises(Manufacturer of : All kinds of E.K.G., Mechanical & Electrical Spare Parts & HEMM Spares)

4 No. Bhaga Road (Near Kali Mandir) Jharia, Dhanbad

With Best Compliments from :

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13TH ANNUAL SEMINAR - 19.03.2019

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REPUBLIC DAY CELEBRATION 2020

Page 56: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

SARASWATI PUJA – 2020

Page 57: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

PRESS COVERAGE

Page 58: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

With Best Compliments from :

M/S Sharda Engineering WorksP. O. – Karmatand, Via – Nudkhurkee,

Bokaro, Jharkhand - 828307

With Best Compliments from :

Dhansar Engineering Co. Pvt. Ltd.

With Best Compliments from :

Gainwell Commosales Pvt. Ltd.Kusum Vihar Colony,

P.O.-Koyla Nagar, Dhanbad

Page 59: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj

With Best Compliments from :

With Best Compliments from :

Akhilesh KumarCivil Contractor & General Order Supplier

Add : 37 A, Kumhar Patti, Manaitand,Dhanbad-826001

Page 60: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 61: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj
Page 62: SEMINAR ORGANISING COMMITTEE · SEMINAR ORGANISING COMMITTEE • Mr. Roshan Lal Nad, ACS • Mr. Rahul Jindal, ACS • Mr. Rahul Roy, ACS • Mr. Gaurav Kr Agarwal, ACS • Mr. Pankaj