Another pertinent question which arises on similar lines with respect to the aforesaid rules is regarding advances received in the course of business which remains unadjusted for a period of more than 365 days.
Say any advance received in Apr '13 which has been partially / fully unadjusted and becomes more than 365 days old from the date of its receipt in Apr '14, will it become deposit under the Rules and requirements with respect to DPT 4 and refund will have to be mandatorily complied with.
Also going forward will all unadjusted advances have to be voluntarily refunded even if not claimed by the customer within 365 days of its receipt.
regards,
Raja Prasad
On Sunday, 20 April 2014 5:09 PM, Nitesh More <moreassociate@gmail.com> wrote:
CL: If any Loan existing on 1st April,2014 received by a Pvt Ltd co from its shareholders, Director's relatives & other individuals, than can these be treated as deposits & should statement in "Form DPT4" be filled to ROC by 30th June,2014 & all dues to be repaid within 1 year as required u/s 74 of Co Act,2013?
1) Loan is covered under definition of deposits under both Company Act, 1956 & 2013 read with both deposit Rules, 1975 & 2014.
2) a) However, if loan is received from any other company by any co., than it is not covered as deposits under both Co Laws read with both deposit Rules.
b) If loan is received from directors or shareholders or director's relative by pvt ltd co, than these were not covered as deposits under Co Act, 1956 read with deposit Rules, 1975. However, if such loan is received by Public Ltd co than these were covered as deposits under Co Act, 1956 read with deposits Rules, 1975.
Under New Company law, if loan is received by any company (both Public & Pvt) from directors, than it will not be covered as deposits. However, If loan is received from shareholders or director's relative by any Co, than these will be covered as deposits.
c) If loan is received from other individuals by either Pvt Ltd Co or Public Ltd Co, than these will be covered as deposits under both Co Law read with both deposit Rules.
3) a) As per sec 74 of Co Act, 2013, If deposit or any interest remains unpaid on commencement of this Act, co. shall file, within 3 months, with ROC a statement in "Form DPT4"of all deposits accepted & sums remaining unpaid and Co repay the dues within 1 year i.e. by 31st march, 2014.
b) Tribunal may, on application made by co., allow further time to repay the deposit.
c) Penalty - Company – shall pay deposit and interest along with fine Rs. 1 crore to Rs. 10 crores and officer in default - Imprisonment upto 7 years or fine Rs. 25 Lakhs to Rs. 2 Crores, or both.
b) Tribunal may, on application made by co., allow further time to repay the deposit.
c) Penalty - Company – shall pay deposit and interest along with fine Rs. 1 crore to Rs. 10 crores and officer in default - Imprisonment upto 7 years or fine Rs. 25 Lakhs to Rs. 2 Crores, or both.
4) A question arise if any loan is received by Pvt Ltd Co. from shareholder or director's relative under Co Act, 1956 should we include these as deposit in Form DPT4 or not?
a) ONE VIEW: Yes, include these as deposits in Form DPT4.
Reasons:
i) The meaning of the term "deposit" under sec 74 under Co Act, 2013 will be as per sec 2(34) of the Co Act, 2013. Hence, these will be included as deposits in Form DPT4.
ii) The intention of introduction of sec 74 is to repay all old deposits within one year time or extended time. MCA wants that all deposits accepted have to follow new Act & New Rules.
iii) This view can also be supplemented by the fact that legislature is giving enough time i.e. 1 year time to repay the deposits existing on 1st April, 2014 to comply with new Act & New Rules.
iv) ROC is expected to take this view .
b) ANOTHER VIEW: No, do not include these as deposits in Form DPT4.
Reasons:
i) These were not deposits at the time when these loans have been received. Hence, sec 74 will not be applicable for such deposits.
ii) What was not a deposit at the time of receiving deposits cannot & should not be subsequently compelled to repay by bringing it under ambit of deposits.
Warm Regards
CA.Nitesh More | FCA, |
Visit our blog: caniteshmore.blogspot.com
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