companies act 2013 : loans, advances and related party transactions (sec. 185, 186, 188)
TRANSCRIPT
COMPANIES ACT 2013
Loans, Advances & RPTs
CA Chintan N. Patel
Naresh J. Patel & Co.
Chartered Accountants
Ahmedabad
www.nareshco.com
LOANS &
INVESTMENTS
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Sec. 185 : Loan to Directors
Sec. 186 : Loan and Investment by Company
Loans by Company
To
Directors
OR
To
Any Other OR
Company in which
director are interested
Sec. 185
Company
Sec. 186
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Section 185:
A company cannot, directly or indirectly, give any loan,
including loan represented by a book debt, to any of its
directors or to any other person in whom the director is
interested or give any guarantee or provide any security in
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interested or give any guarantee or provide any security in
connection with any loan taken by him or such other
person.
Loan:
A loan is defined by the Oxford English Dictionery as ‘a thing lent,
something the use of which is allowed for a time, on the
understanding that it shall be returned or an equivalent given; esp.,
a sum of money lent on these conditions and usually with interest.’
The essential requirement of a loan is the advance of money (or of
some article) upon the understanding that it shall be returned, and
it may or may not carry interest.
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Indirect:
The word ‘indirect’ used means that the co should not give a loan
to director through the agency of one or more intermediaries.
However the word ‘indirect’ cannot be read as converting what is
not a loan into a loan.
[Dr. Fredie Ardeshir Mehta v Union of India [1991] 70 Comp. Cas
210 (Bom.)
‘any other person in whom director is interested’ :
(a) any director of the lending company, or of a company which is its
holding company or any partner or relative of any such director;
(b) any firm in which any such director or relative is a partner;
(c) any private company of which any such director is a director or
member;
(d) any body corporate at a general meeting of which not less than
25% of the total voting power may be exercised or controlled by any
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25% of the total voting power may be exercised or controlled by any
such director, or by two or more such directors, together; or
(e) any body corporate, the Board of directors, managing director or
manager, whereof is accustomed to act in accordance with the
directions or instructions of the Board, or of any director or directors,
of the lending company.
Body Corporate :Section 2(11) of 2013 Act:
It includes a company incorporated outside India but does not include a co-operative
society and any other as specified by CG.
Characterstics
Incorporated under some law, Perpetual succession, Ability to hold property in its own
name , Legal entity apart from the members
Examples:
• All companies registered under Indian Companies Act
• All companies registered under any Act outside India
• Any Corporation registered under any special law in India or abroad
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• Any Corporation registered under any special law in India or abroad
• Public financial institutions u/s 2(72) of Companies Act 2013
• Nationalised banks incorporated under Banking Companies (Acquisition & Transfer
of Undertakings) Act 1970
• LLPs (LLP Act 2008)
Not Body Corporates:
• Proprietorship concerns
• Partnership firms (other than LLPs)
• HUFs
• Societies registered under Societies Registration Act
• Mutual funds managed by trustees (UTI is a body corporate)
Prohibition on Loan
by Company To
Director
Partnership Firm(If Director or Relative
of Director is a partner)
IndividualOther than
Individual
Body Corporate(If BOD, MD or manager
Sec. 185
Summary
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Any Partner
of Director
Any Relative
of Director
Director of
Holding Co.
Pvt. Ltd. Co.(If Director is a director
or member)
Body Corporate(If Director/s having
atleast 25% voting power)
(If BOD, MD or manager
accustomed to act as per
directions of director/s,
board of lending co.
Subject to EXCEPTIONS
Exceptionsof Sec. 185
Loan to
Managing or
Whole time
Director
LGS by a company
in the ordinary
course of business
LGS by Holding
Co. to Wholly
Owned
Subsidiary Co.
GS by Holding Co.
to Subsidiary Co. in
respect of loan by
Bank or FI
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Provided that such Loans are utilised by the
subsidiary for its principal business activitiesInterest is charged at a rate
not less than bank rate
As a part of condition of service to all employees
OR
Pursuant to scheme approved by members in SR
Section 185 : Practical Solutions
Convert Lender
& Borrower to
LLP
Convert Borrower
Company to Limited
Company
(If Common Directors
hold Less Than 25% of
Borrowing company)
Change in
Directorship/
Shareholding
1) Appoint New i.e Uncommon Director
2) Resign Common Director from either Company
(in which Director is not share holder)
3) Change the Shareholding in such a way that no Director of
Borrower / Lender are shareholder of other company.(i.e.
Director Should hold the share in which they are director.)
4) Shares/Directorship Held by Relatives of the Directors not
considered.
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Penalties for Contraventionof Sec. 185
LENDER
COMPANY
BORROWER
IMPRISONMENT UPTO 6
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FINE
RS.5 LACS
TO
25 LACS
MONTHS
OR
FINE Rs. 5 LACS TO Rs. 25 LACS
OR
BOTH
Sec 186 – Loan & Investment by company(corresponding to sec 372A of Act,1956)
(1) Without prejudice to the provisions contained in this Act, a co shall unless otherwise prescribed, make investment through not more than two layers of investment co’s :
Provided that the provisions of this sub-section shall not affect, -
(i) a co from acquiring any other co incorporated in a (i) a co from acquiring any other co incorporated in a country outside India if such other co has investment subsidiaries beyond two layers as per the laws of such country ;
(ii) a subsidiary co from having any investment subsidiary for the purpose of meeting the requirements under any law or under any rule or regulation framed under any law for the time being in force.
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LOANS & INVESTMENTS
BY COMPANIES
Section 186
NO
Investments through
more than two layers
of Investment Co.
Upto
1.Give loan to any person OR body corporate
2. Give guarantee or provide security in connection with
loan
3. Purchase subscription, purchase securities
Upto
Higher of 60% of
Paid up Capital
(+) Free Reserves
(+) Security Premium
100% of
Free reserves
(+) Security Premium
Alternate Route :
If Loan Exceeds the above threshold limit, then Prior Approval by Special Resolution at
General meeting is MUST . (Subject to Exceptions)
OR
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Exceptions to Prior Approval
No Prior Approval required:
- L G S to WOS
- L G S to Joint Venture
- Investment (Acquisition) by holding company by way
of subscription, purchase or otherwise of securities of subscription, purchase or otherwise of securities
of WOS
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Exception to Sec. 186(a) L G S by a banking company or insurance company or a
housing finance company in the ordinary course of its
business or a company engaged in the business of financing of
companies or of providing infrastructural facilities ;
(b) to any acquisition –
(i) made by a non-banking financial company registered
under chapter III-B of the RBI Act 1934 and whose principal under chapter III-B of the RBI Act 1934 and whose principal
business is acquisition of securities ;
Provided that exemption to non-banking financial company
shall be in respect of its investment and lending activities
(ii) made by a company whose principal business is the
acquisition of securities ;
(iii) of shares allotted in pursuance of clause (a) of sub-section
(1) of section 62.
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Disclosure in Financial Statement
• Full particulars of the L G S I and
• Purpose for which it is proposed to be utilised by
the borrower - L G S (Not I) .
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Unanimous Board Resolution Sec. 186(5)
• No investment shall be made or loan or guarantee should be
given unless the resolution is passed at board meeting with
unanimous vote.
• Interested Directors cannot vote in a resolution.
• All Directors present at the meeting must vote in favour of the
resolution. This is an exception to general provision that all
decisions of Board are by simple majority. decisions of Board are by simple majority.
• Thus, prior and unanimous approval of board of directors is must
and circular resolution or committee’s approval is not sufficient
as provided in sec. 179 (3) (e & f).
• However, the board of directors unanimously can approve the
upper limit for investment and can delegate the powers to
Committee / MD, Manager specifying loan, nature and purpose,
for making investment within that prescribed limit.
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Prior approval of Public Financial Insti. (PFI)
• Prior approval of Public Financial Institution where
any tem loan is subsisting if
(i) Company has made default in repayment of loan
or interest to PFI OR
(ii)The aggregate of LGSI along with proposed
exceeds the limit prescribed in sec. 186 (2)
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SEC 186 – Loan & Investment by company
• No company, which is registered under section 12 of the
SEBI Act 1992 and covered under such class or classes of
companies as may be prescribed, shall take inter-
corporate loan or deposits exceeding the prescribed
limit and such company shall furnish in its financial
statements the details of the loan or deposits.statements the details of the loan or deposits.
• No loan shall be given under this section at a rate of
interest lower than the prevailing yield of one year,
three year, five year or ten year government security
closet to the tenure of the loan..
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Defaulter in Repayment
No company which is in default in the repayment of
deposits accepted before or after the commencement
of this Act or in payment of interest thereon, shall give
any loan or give any guarantee or provide any security or
make an acquisition till such default is subsisting.make an acquisition till such default is subsisting.
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Register of L G S I
• Every company to keep a register which shall contain
the particulars.
• To keep register at the registered office of the company
and
(a) shall be open for inspection at such office ; and
(b) extracts may be taken therefrom by any member,
and copies thereof may be furnished to any member of
the company on payment of fees as prescribed in the
Articles not exceeding Rs. 10 per page.
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Penalty u/s. 186
• Company:
Fine : Rs. 25,000 to Rs. 5 lakhs
• Officers
Imprisonment : upto 2 years andImprisonment : upto 2 years and
fine Rs. 25,000 to Rs. 5 lakhs
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Related PartyDefinition of Related Party : Sec. 2(76)
Director, KMP or their relative
Firm in which a director or manager or his relative is a partner
Private Company in which director or manager is a member or director
Public Company in which director or manager is a director AND holds along with his
relatives > 2% of its paid up share capital
Any Body Corporate whose BOD, MD or manager is accustomed to act in
accordance with advise, director or manager (Except in professional capacity)
Co. Act
13
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accordance with advise, director or manager (Except in professional capacity)
Any person on whose advise, directions, or instructions, a director or manager is
accustomed to act. (Except in professional capacity)
Any Company which is H, S or A of Company or Subsidiary of H Co.
Director, KMP of the holding company or relative
2(77) : Relative :
Members of HUF, Husband or Wife,
As may be prescribed
Father(incld S-F), Mother (incld S-M), Brother (incld S-B), Sister (incld S-S)
Son (incld S-S), Son’s Wife, Daughter, Daughter’s Husband
Related Party(a) enterprises that directly, or indirectly through one or more intermediaries, control,
or are controlled by, or are under common control with, the reporting enterprise
(this includes holding companies, subsidiaries and fellow subsidiaries);
(b) associates and joint ventures of the reporting enterprise and the investing party or
venturer in respect of which the reporting enterprise is an associate or a joint
venture;
(c) individuals owning, directly or indirectly, an interest in the voting power of the
reporting enterprise that gives them control or significant influence over the
enterprise, and relatives of any such individual;
AS - 18
enterprise, and relatives of any such individual;
(d) key management personnel and relatives of such personnel;
(e) enterprises over which any person described in (c) or (d) is able to exercise
significant influence. This includes enterprises owned by directors or major
shareholders of the reporting enterprise and enterprises that have a member of
key management in common with the reporting enterprise.
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Relative – in relation to an individual, means the spouse, son, daughter, brother, sister,
father and mother who may be expected to influence, or be influenced by, that
individual in his/her dealings with the reporting enterprise.
Related Party• Parties are considered to be related if one party has the ability to control
the other party or exercise significant influence over the other party,
directly or indirectly, in making financial and/or operating decisions and
includes the following :
SEBI
Individual (IND) Entity
- Related party u/s. 2(76)
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- Related party u/s. 2(76)
- Control or joint control or
significant influence over Co.
(IC)
- KMP of company or parent
- Related party u/s. 2(76)
- Entity and company are members of same
group (each parent, subsidiary, fellow sub)
- One entity is Asso./JV of other entity or of a
member of a group of other entity
- Both entities are JV of same third party
- One entity is JV of third entity and other
entity is Asso. Of third entity
- Entity is post employment benefit for the
benefit of employees of co. Or related co.
- Entity Controlled/Jointly Conrolled by IND
- IC has significant infl. over entity or parent
Related Party
Transactions?
Is it Specified
Transaction?
Transactions in ordinary
course of business and Arms
Length Pricing?
Y
Y
N
Sec. 188 Not
Applicable
No Prior
Approval
Y
N
Sec. 188
N
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Transaction >
Specified Amt or
PC > Rs. 10 Cr?
Approval of Sh. Holders by Sp. Resol.
AND
Board Approval
Prior Approval
of Board
Y
N
N
Director’s Report to disclose each Related Party Transaction (irrespective of its
arms length nature) along with justification for entering into same.
Prior Approval of Company by Special Resolution
for Specified but not Arms Length Transactions
Is the Company Having Paid up
share Capital > Rs. 10 Cr.?
Prior Approval
SR Required
YN
Prior Approval
SR Required
ONLY IFGoods or Material
Sale, purchase or Supply
Directly or through Agent Services
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> 25% of Annual Turnover Availing or rendering
Directly or through Agent
> 10% of Net WorthProperty
Buying, selling, disposing
Directly or through Agent
> 10% of Net Worth
Leasing of Property
> 10% of Net Worth
Appointment
To office or place of profit
In Co., Subs, Asso
> Rs. 2.5 Lacs p.m.
Underwriting
Remuneration for underwriting
subscription of Sec. or derivative
> 1% of Net Worth
Specified TransactionsCo. Act 1956 Co. Act 2013 SEBI Listing
Agreement
Sale, purchase or supply of
any goods, material or
services
-Sale, purchase or supply of any
goods or material
-Availing or rendering of any
services
Transfer of
resources, services
or obligations
between a
company and
a related party,
regardless, of
whether a price is
Underwriting the
subscription of any
shares in or debenture.
Underwriting the subscription of
any shares in or derivatives
thereof.whether a price is
charged.Selling or otherwise disposing of, or
buying, property of any kind
Leasing of property of any kind
Appointment of any agents for
purchase or sale of goods,
materials, services or property;
Related party’s appointment to
any office or place of profit in the
company, its subsidiary company or
associate companyCA Chintan Patel
Related Party
Transactions?
Is it Material?
Prior Approval of Audit
CommitteePrior Approval of
Audit Committee
Y
Y
No Action
N
SEBI
N
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Committee
+
Prior Approval of Sh. Holders
by Sp. Resol. (Related Party
can not vote)
Audit Committee
Material :
if the transaction(s) to be entered into individually or collectively during a
financial year exceeds:
5% of the Annual Turnover; or 20% of the networth; Whichever is higher
Disclosure of RPT
• Details of all material transactions with
related parties shall be disclosed quarterly
along with the compliance report on
corporate governance.
SEBI
corporate governance.
• The company shall disclose the policy on
dealing with Related Party Transactions on its
website and also in the Annual Report.
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Sec. 188 ExceptionsNot Apply to :
Any transactions entered into in its ordinary course of business other than
transactions which are not on an arm’s length basis.
Arm’s length transaction:
Transaction between 2 related parties that is conducted as if they were
unrelated, so that there is no conflict of interest.
Ordinary Course of business:Ordinary Course of business:
• SA 550 Related Party:
Examples of transactions outside the entity’s normal course of business:
– Complex equity transactions, such as corporate restructurings or acquisitions.
– Transactions with offshore entities in jurisdictions with weak corporate laws.
– The leasing of premises or the rendering of management services by the entity to another party if
no consideration is exchanged.
– Sales transactions with unusually large discounts or returns.
– Transactions with circular arrangements, for example, sales with a commitment to repurchase.
– Transactions under contracts whose terms are changed before expiry.CA Chintan Patel
Sec. 188 Related Party Transactions
office or place of profit :
i) where it is held by a director, if he receives anything by way of remuneration over & above remuneration to which he is entitled as director, by way of salary, fee, commission, perqs, rent free accommodation or otherwise;
ii) by any individual, other than director, or by any firm/ pvt co / body corporate holding it receives from the co anything by way of remuneration, salary, commission, perqs, any rent free accommodation or remuneration, salary, commission, perqs, any rent free accommodation or otherwise
If Not Approved:
Where entered without obtaining consent of board/ approval by special resolution in GM and if not ratified by Board/GM within 3 months, such contract voidable at the option of board and director concern (sanctioning) shall indemnify against any loss incurred by it.
Open to the co to proceed against director / any other employee for recovery of any loss
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Listed Co.
- Imprisonment upto 1 year
- Fine not less than
Any Other Co.
Fine not less than Rs.25,000/-
may extend to Rs. 5 lacs
Penalty for Contravention of Sec. 188
Any director/ any other employee of co who entered into / authorized such contract/ arrangement in violation, shall
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- Fine not less than
Rs.25,000/- may extend to Rs.
5 lacs
or
- Both
may extend to Rs. 5 lacs
CA Chintan N. Patel
+91-90999 21163
CA Chintan Patel
Naresh J. Patel & Co.
Chartered Accountants
www.nareshco.com