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Guide to Share Application Money & Borrowing Powers For Private Companies

Guide to Share Application Money & Borrowing Powers For Private Companies
Books from same Author: CA KAMAL GARG
Books from same Publisher: Bharat Law House Pvt Ltd

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Description

Chapter 1: SHARE APPLICATION MONEY 
UNDER COMPANIES ACT, 2013
1. Introduction
2. Abuse of Private Placement under Companies Act, 1956 dealt in by the Supreme Court in Sahara’s case
3. Enshrining the provisions for Private Placement under the Companies Act, 2013
4. Share Application Money to be received only through banking channels and the securities shall be allotted with prescribed time
5. Share/security application money to the extent of allotment within 2 months is exempted to be classified as deposits under Companies (Acceptance of Deposits) Rules, 2014
6. Share application money accepted before the Companies Act, 2013 vis-a-vis Companies (Acceptance of Deposits) Rules, 2014
7. Punishment for contravention:
8. Punishment for contravention of section 73 or section 76 [Section 76A]
9. Share Application Money Pending Allotment – Disclosures under Schedule III of the Companies Act, 2013
10. Diluted Earnings Per Share and Share Application Money
11. Accounting treatment of share application money pending for allotment invested by holding company in subsidiaries
12. Net worth does not include non-refundable share application money pending allotment
13. Power of Securities and Exchange Board to regulate issue and transfer of securities, etc.
Chapter 2: SHARE APPLICATION MONEY UNDER FOREIGN EXCHANGE MANAGEMENT ACT, 1999
1. Mode of payment for shares issued to person resident outside India
2. Share Application Money to be received only through banking channels and the securities shall be allotted with prescribed time — FEMA compliance at the command of Companies Act, 2013
Chapter 3: SHARE APPLICATION MONEY 
VIS-À-VIS INCOME TAX ACT, 1961
1. Mode of taking or accepting certain loans, deposits and specified sum
2. Mode of repayment of certain loans or deposits
3. Section 14A/Rule 8D does not apply to share application money
4. If the identity and other details of the share applicants are available, the share application money cannot be treated as undisclosed income in the hands of the Co. The addition, if at all, should be in the hands of the applicants if their creditworthiness cannot be proved
Chapter 4: INVITATION AND ACCEPTANCE OF 
DEPOSITS BY COMPANIES
1. Acceptance of deposits
2. Meaning of Depositor
3. Meaning of eligible company
4. Distinction between Loan and Deposit
5. 'Deposit' – meaning thereof
6. Amounts received by a company which are exempted and not included in the category of deposits
7. Conditions for acceptance of deposits
8. Acceptance of deposits from public by eligible companies
9. Creation of security for secured deposits
10. Appointment and Removal of deposit trustees
11. Duties of deposit trustees
12. Meeting of Depositors
13. Application Form for deposits
14. Declaration by the depositors that the amount deposited is not from the borrowed funds 
15. Depositor may appoint nominees 
16. Furnishing of deposit receipts to depositors
17. Maintenance of liquid assets and creation of Deposit Repayment Reserve Account
18. Registers of deposits
19. Premature repayment of Deposits
20. Return of deposits to be filed with the Registrar
21. Penal rate of interest
22. Power of Central Government to decide certain questions
23. Applicability of sections 73, 74 and 75 to eligible companies
24. Deposit accepted before the Companies Act, 2013
26. Punishment for contravention
27. Damages for fraud
28. Punishment for contravention of section 73 or section 76 [Section 76A]
29. Disclosure of particulars of deposits in the Boards’ Report
30. Provision to make online complaint to the MCA by the deposit holders
Chapter 5: POWERS OF THE BOARD
POWERS OF BOARD
1. Validity of acts of directors
2. Board should act as a collective body
3. Distribution of powers of the company
4. General power of the Board of directors
5. Manner in which the powers can be exercised by the Board
6. Powers exercisable by the Board only if authorised by Articles
Chapter 6: RESTRICTIONS ON THE POWERS OF 
THE BOARD 
1. Powers to be exercised by the Board only on the approval given by the members in general meeting by way of special resolution
2. Meaning of Undertaking
3. Meaning of Temporary Loans
4. Powers to be exercised by the members in the general meeting by way of special resolution
5. Powers to be exercised with the approval of the Tribunal
6. Certain powers which can be exercised by the Board of directors only with the approval of the members and the Central Government
7. Other major restrictions on the powers of the Board
8. Prohibition on charitable contribution
9. Prohibitions and restrictions regarding political contributions
10. Powers to make contribution to national defence funds, etc.
Chapter 7: DISCLOSURE OF INTEREST, 
RELATED PARTY TRANSACTIONS, OFFICE OR PLACE OF PROFIT AND REGISTERS THEREOF
DISCLOSURE OF INTEREST BY DIRECTOR
1. Object of disclosure of interest
2. Requirement for disclosure of nature of interest whether direct or indirect
3. Requirement for disclosure of interest is applicable to all companies
4. Applicability for disclosure
5. Requirement of disclosure if a director becomes concerned or interested after entering into contract by the Company
6. Contracts without disclosure of interest by a director shall be voidable at the option of the company
7. Non-applicability of section 184
8. General guidelines for disclosure of the nature of interest
9. Contract may be oral or written
10. Burden of proof of non-disclosure of interest
11. Interested directors shall not participate in such Board Meeting in which the relevant contract or arrangement is discussed
12. Consequences and penalties for non disclosure of interest
13. Status of contract, where a director has not disclosed his interest before the Board
14. Contracts or arrangements not covered by section 184
RELATED PARTY TRANSACTIONS
15. Applicability
16. Scope of section 188
17. Approval of contracts by the Board
18. Interested director is not entitled to present in the Board meeting while considering the contracts by the Board
19. Requirement for previous approval of the members by ordinary resolution at general meeting for arrangement or contracts with the related party
20. Non-applicability of section 188
21. Requirement for providing disclosure of related party transaction in the Directors’ Report
22. Voidable contract
23. Penalty for violation of section 188
OFFICE OR PLACE OF PROFITS
24. Appointment of a related party to any office or place of profits
25. Applicability
26. Circumstances under which a ordinary resolution is required to be passed
27. Circumstances under section 188(1)(f) under which ordinary resolution is not applicable
28. Section not applicable for appointment of Managing Director, manager or whole-time director
29. Provision of section 188(1)(f) shall not apply to any appointment of firm of professionals on case to case basis in which a director is partner
30. Payment of bonus, leave encashment, reimbursements of medical expenses are not included in computing the prescribed remuneration
31. Consent of members in general meeting may be taken subsequently
32. Increase in the remuneration of a person appointed in the Office or Place of Profit
33. Section 188(1)(f) not applicable if the relatives were appointed before his appointment as a director in the company
34. Consequences on non-compliance with the provisions of section 188(1)(f)
REGISTER OF CONTRACTS OR ARRANGEMENTS IN WHICH DIRECTORS ARE INTERESTED
35. Applicability and scope of the section
36. Requirement to keep Register of contracts or arrangements in which directors are interested
37. Disclosure has to be made by Director or KMP within 30 days
38. Register of contracts has to be kept at the Registered office and its inspection
39. Penalty on contravention of section 189
Chapter 8: LOAN TO DIRECTORS, LOAN AND 
INVESTMENT BY A COMPANY
LOAN TO DIRECTORS
1. Restrictions on providing loan to a director or to a person connected with a director
2. Meaning of “to any other person in whom director is interested”
3. Applicability
4. Restrictions apply only at the time of entering into the transaction
5. Certain loans not covered/exempted under section 185
6. Exemption from the provisions of section 185 to the holding company for the loans, guarantee and security provided to its subsidiary company
7. Penalty for contravention
LOAN AND INVESTMENT BY COMPANY
8. Meaning of certain terms for the purpose of section 186
9. Restrictions on making investment through not more than 2 layers of investment companies
10. Restriction on providing loans, guarantee and investment to other body corporate or person
11. Approval of shareholders through special resolution is necessary where the Board of directors needs to make loans, guarantee, security, investment in excess of the prescribed limits
12. Unanimous consent of all the directors at the Board meeting and prior approval of the public financial institution is required
13. No requirement for prior approval of financial institutions within the limits subject to no default of repayment of loans and interest thereon
14. Limitation on the powers of a company
15. Exemptions from the limits prescribed under section 186(3) for a loan or guarantee given or where a security has been provided by a company to its wholly owned subsidiary company or a joint venture company
16. Register of Loans, investment, guarantee or security provided by the Company
17. Exemption for the applicability of section 186(1)
18. Special Resolution for taking approval under section 186
19. Requirement of disclosure in the financial statements
20. Penalty under section 186
INVESTMENTS OF COMPANY TO BE HELD IN ITS OWN NAME
21. Investments in property, security or other assets of company to be held in its own name
22. Shares held by the company in its subsidiary may be held in the names of the nominees to ensure compliance of the minimum number of members
23. Exemptions from the requirement of section 187
24. Register of investments made by a company and not held by it in its own name
25. Penalty for contravention of section 187
Chapter 9: REGISTRATION AND 
MODIFICATION OF CHARGE
1. Charges requiring Registration
2. Responsibility for filing particulars for registration of charge
3. Effects of registration of charge by the Registrar
4. Certificate of registration or modification of charges
5. Consequences and penalties of non-filing/registration of particulars of charge with Registrar
6. Modification of charge
7. Satisfaction of charge
8. Register of charges
9. Punishment for contravention
10. Powers of the Registrar to condone delay in filing of the particulars for creation or modification of charges upto 300 days
11. Power of the Central Government to issue order for extension for filing charge beyond 300 days for creation or modification or beyond 30 days from satisfaction of charge
12. Appointment or cessation of manager or receiver
13. Penalty for contravention
Chapter 10: DORMANT COMPANY 
1. Introduction
2. Procedure for getting status of a Dormant Company
3. Application for obtaining status from Dormant Company to active company
4. Striking off name of Dormant Company
5. Powers of the Registrar to remove the name of Dormant Company
Chapter 11: MISCELLANEOUS PROVISIONS
1. Power of Central Government to direct companies to furnish information or statistics [Section 405]
2. Nidhi Companies
3. Offences to be non-cognizable [Section 439]
4. Power of Central Government to appoint company prosecutors [Section 443]
5. Appeal against acquittal [Section 444]
6. Compensation for accusation without reasonable cause [Section 445]
7. Application of fines [Section 446]
8. Punishment for fraud [Section 447]
9. Punishment for false statement [Section 448]
10. Punishment for false evidence [Section 449]
11. Punishment where no specific penalty or punishment is provided [Section 450]
12. Punishment in case of repeated default [Section 451]
13. Punishment for wrongful withholding of property [Section 452]
14. Punishment for improper use of "Limited" or "Private Limited" [Section 453]
15. Protection of action taken in good faith [Section 456]
16. Non-disclosure of information in certain cases [Section 457]
17. Delegation by Central Government of its powers and functions [Section 458]
18. Powers of Central Government or Tribunal to accord approval, etc., subject to conditions and to prescribe fees on applications [Section 459]
19. Condonation of delay in certain cases [Section 460]
20. Annual report by Central Government [Section 461]
21. Power to exempt class or classes of companies from provisions of this Act [Section 462]
22. Power of court to grant relief in certain cases [Section 463]
23. Power of Central Government to amend Schedules [Section 467]
24. Powers of Central Government to make rules relating to winding up [Section 468]
25. Power of Central Government to make rules [Section 469]
26. Power to remove difficulties [Section 470]
27. Compounding of Offences [Section 621A of the Companies Act, 1956]
28. Registration offices [Section 396 of the Companies Act, 2013]
29. Admissibility of certain documents as evidence [Section 397 of the Companies Act, 2013]
30. Provisions relating to filing of applications, documents, inspection, etc., in electronic form [Section 398 of the Companies Act, 2013]
31. Inspection, production and evidence of documents kept by Registrar [Section 399 of the Companies Act, 2013]
32. Electronic form to be exclusive, alternative or in addition to physical form [Section 400 of the Companies Act, 2013]
33. Fee for filing, etc. [Section 403 of the Companies Act, 2013]
34. Mediation and Conciliation Panel [Section 442 of the Companies Act, 2013]
35. Power of Central Government to appoint company prosecutors [Section 443 of the Companies Act, 2013]
36. Adjudication of penalties [Section 454 of the Companies Act, 2013]
37. Appeal against the order of adjudicating officer
38. Prohibition of association or partnership of persons exceeding certain number
Appendix 1 Definitions under Companies Act, 2013
Appendix 2 Sections 407 To 414, Companies Act, 2013

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General Information
Author(s)CA KAMAL GARG
PublisherBharat Law House Pvt Ltd
Edition1st
ISBN9789351393276
Pages208
BindingPaperback
LanguageEnglish
Publish YearDecember 2015
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