Dear all,
Section 74(1) contains mention about Deposit before commencement of the act, which in my view needs to be understood in light of old Companies (acceptance of deposit) rules , 1975. If any of the loans or money which was characterised as deposit under old provisions will only be eligible for reporting under DPT4.
Though private company was not eligible to raise public deposits under then rules, it could raise deposits in a manner prescribed under clause 3(2) of Companies (Acceptance of Deposit) Rules, 1975. Hence, there might be a situation where private company would have raised such deposits earlier and which has remained unpaid before commencement of new companies act 2013. Those deposits are only to be reported in DPT4. New definition of deposit in companies act 2013 can not alter the character of loans into deposits retrospectively. However, when question comes to renewal of such deposits, then new definition under companies act 2013 will apply as term "Renewal" is judicially noticed as "Acquire Again" i.e. receiving fresh deposits.
Hence, as per my little understanding, the deposits which are appearing in 31.03.2014 as Deposits (under 1975 rules) only need to be reported in DPT4.
Contrary views are welcome.
Regds,
Shripal Shah
From: "Nitesh More moreassociate@gmail.com [aaykarbhavan]" <aaykarbhavan@yahoogroups.com>
To: aaykarbhavan@yahoogroups.com
Sent: Thursday, June 26, 2014 9:53 AM
Subject: [aaykarbhavan] Analysis of Deposit provisions & filing of DPT4
To: aaykarbhavan@yahoogroups.com
Sent: Thursday, June 26, 2014 9:53 AM
Subject: [aaykarbhavan] Analysis of Deposit provisions & filing of DPT4
Dear All,
I am observing various opinions on the issue of deposits and filing of its details with ROC. Many such opinions are contradictory and creates more confusion than solving the issues. Different thought are being highlighted based on pure logic without paying heeds to the legal requirements. I am providing IN DETAIL the exact legal requirements. In case of any doubt, please refer to the undersigned.
1. Provision related to Acceptance of Deposits by the Company are governed by sections 73 to section 76 mention in Chapter V of the Companies Act, 2013 and also section 180(1)(c) ibid.
2. The provision contained in the bare act is mentioned in RED Colour for easy reference to the reader. My comments are given in Blue Colour.
3. Section 73(1) starts with the word "73(1) On and after the commencement of this Act, no company shall invite, accept or renew deposits under this Act from the public except in a manner provided under this Chapter."
There is blanket ban on inviting, accepting or renewing deposits from public. Exceptions are provided to this blanket ban. We will deal with this exception later in the discussion. First we shall understand the meaning of Deposit under this Act.
deposits
Deposit has been defined under section 2(31) of the Companies Act, 2013 as follow :
"deposit includes any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India. "
You will observe that Deposit includes RECEIPT OF MONEY BY WAY OF DEPOSIT OR LOAN OR IN ANY OTHER FORM.
Essentially, there has to be receipt of money.
If you read this with opening words mentioned above, it has to be RECEIPT OF MONEY – ON AND AFTER THE COMMENCEMENT OF THIS ACT.
The word DEPOSIT does not include such categories of amount as may be prescribed in consultation with RBI. In consultation with RBI, Companies (Acceptance of Deposits) Rules have been notified to be effective from 1st April 2014. These are given in the discussion hereunder at appropriate place. It may be noted that the exception are not exempted categories of deposits – it is in fact not treated as deposit, as it has not been included in the meaning of DEPOSIT.
Public
The word Public has not been defined in the Act.
Note : Provision of this section does not apply to Banking Company and NBFC as defined in RBI ACT, 1934.
Provision of Section 73(2) is very important as it deals with our concerns directly.
It says as follow :
"A company may, subject to the passing of special resolution in general meeting and subject to such rules as may be prescribed in consultation with the Reserve Bank of India, accept deposits from its members on such terms and conditions including the provision of security, if any, or for the repayment of such deposits with interest, as may be agreed upon between the company and its members, subject to fulfilment of the following conditions, namely :"
Here procedure is mentioned by following of which, a company can accept deposits from its members. IT MUST BE CLEARLY UNDERSTOOD THAT SIMPLY LOAN / DEPOSIT CAN NOT BE ACCEPTED FROM THE MEMBERS OF THE COMPANY.
The procedure in short is as follow :
1. Issue circular to the members in which various information are to be given. Along with circular, statement is also required to be sent containing CREDIT RATING obtained and other information prescribed.
2. Filing the copy of circular with a Statement to ROC Office within 30 days of the date of the circular.
3. Deposit not less than 15% of the sum maturing during the financial year AND maturing during financial year next following in a separate bank account to be called as "DEPOSIT REPAYEMNT RESERVE ACCOUNT"
4. Providing deposit insurance in such manner as may be prescribed.
5. Proving certificate stating that company has not defaulted in repayment of deposits or interest on deposit either before or after commencement of this act.
6. Provide security for an amount equivalent to the amount due for repayment of total deposit and interest thereon AND create charge on such security by appointing TRUSTEE.
FILING OF RETURN OF DEPOSIT
Section 74 (1) along with rule 20 and Form No. DPT-4 IS relevant to understand :
It says "74(1) Where in respect of any deposit accepted by a company before the commencement of this act, the amount of such deposit or part thereof or any interest due thereon remains unpaid on such commencement or becomes due at any time thereafter, the company shall –
(a) File, within a period of three months from such commencement or from the date on which such payments, are due, with the Registrar a statement of all the deposits accepted by the company and sums remaining unpaid on such amount with the interest payable thereon along with the arrangements made of or such repayment, notwithstanding anything contained in any other law for the time being in force or under the terms and conditions subject to which the deposit was accepted or any scheme framed under any law; and
(b) Repay within one year from such commencement of from the date on which such payments are due, whichever is earlier."
Here lies the issue of dilemma for all of us :
The entire chapter V is effective from current financial year and accordingly the word deposit will attract its definition, content and meaning effective from this financial year only. Now the wording of the act says : "DEPOSIT ACCEPTED BY A COMPANY BEFORE THE COMMENCEMENT OF THIS ACT"
This means that the word DEPOSIT (with its meaning as per 2013 act) – which also means "ANY RECEIPT OF MONEY – by any of the three means mentioned above" accepted by a company before the commencement of this act.
So, all receipt of money by a company and falling within the definition of DEPOSIT under present companies act 2013 and remain unpaid as on or becomes due for repayment after commencement of this act shall be intimated to ROC by filing form no. DPT-4 within three months from the commencement of the Act i.e. 30th June.
The above intimation is TO BE MADE ONCE IN THE LIFETIME OF THE EXISITNG COMPANY. Form NO. DPT-4 is christened as "STATEMENT REGARDING DEPOSITS EXISITNG ON THE COMMENCEMENT OF THE ACT [Pursuant to rule 20 of the Companies (Acceptance of Deposits) Rules, 2014]" i.e. THIS FORM Thereafter, return of deposit is to be filed every year within three months of the closing of financial year in form no. DPT-3. This form is christened as "Return of Deposits [ Pursuant to Rule 16 of the Companies (Acceptance of Deposits) Rules, 2014 ] Going by the above discussion, it is amply clear that DETAILS REGARDING DEPOSIT (AS UNDERSTOOD AS PER DEFINITION OF COMPANIES ACT 2013) EXISTING AS ON COMMENCEMENT OF THE ACT needs to be filed with ROC before three months from the commencement of this act.
Then there are various provision for repayment of such deposit (within one year i.e. by 31-03-2015), extension of time for repayment of deposit with the approval of Tribunal etc. etc. and penalty for non compliance. Penalty is Rs.ONE CRORE MINIMUM TO START WITH AND CAN INCREASE UPTO Rs. 10 CRORE FOR THE COMPANY + IMPRISIONMENT FOR THE OFFICER WHICH CAN EXTEND TO SEVEN YEARS + MINIMUM FINE ON OFFICER Rs.25 LACS TO START WITH AND CAN GO UPTO Rs. 2 CRORES. Such penalties are not mutually exclusive. Both penalty can be imposed on the officer. BEWARE OF SUCH PENALTIES. MINIMUM PENALTY MENTIONED ABOVE (IN CRORES AND LACS COUPLED WITH IMPRISIONMENT) CAN BE IMPOSED EVEN FOR DEFAULT OF Rs. ONE ONLY. No one including union cabinet minister, supreme court or even the entire cabinet has power to reduce this penalty except by amendment to present law by parliament - which is a time consuming affairs.
You will appreciate that normal companies, private or public cannot accept deposits from the Public (this word has not been defined in the Act). However, giant companies – means companies having net worth of not less than one hundred crores rupees or a turnover of not less than five hundred crores rupees can accept deposits from public by passing ordinary resolution if the borrowing amount is not exceeding limit prescribed in section 180 (1) (c) i.e. Paid Up capital plus free reserve in our laymen's language and passing special resolution if borrowing exceeds the said limit and also by complying with other requirements mentioned in the rules and acts which are not very typical to follow.
To sum up :
Deposit does not include receipt of any amount – as advance -
- Received by a company from any other company (Rule 2(c)(vi))
- Received as Share application money (Rule 2(c)(vii)) – subject to few conditions. (See Note 1 below)
- Received from a Director (Rule (2)(c)(Viii) )– subject to few conditions
- Received as security deposit from Employees up to one year of his salary (Rule (2)(c)(x))
- Received from Customer (Rule (2)(c)(xii)(a)) subject to few conditions
- Received as consideration against property (Rule 2(c)(xii)(b)) subject to few conditions
- Received as security deposit for performance of contract (Rule 2(c)(xii)(c)) subject to few conditions
- Received against long term projects for supply of capital goods (Rule 2(c)(xii)(d)) subject to few conditions
- RECEIVED FROM PROMOTERS OR HIS RELATIVES WAY OF UNSECURED OAN PURSUANT TO STIPULATION LAID DOWN BY BANKS AND FINANCIAL INSTITUTION. (Rule 2(c)(xiii)) subject to few conditions
Note – 1 : For the sake of brevity the entire rule verbatim is mentioned herein below :
" (vii) any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards subscription to any securities, including share application money or advance towards allotment of securities pending allotment, so long as such amount is appropriated only against the amount due on allotment of the securities applied for;
Explanation – For the purposes of this sub-clause, it is hereby clarified that –
(a) Without prejudice to any other liability or action If the securities for which application money or advance for such securities was received cannot be allotted within sixty days from the date of receipt of the application money or advance for such securities and such application money or advance is not refunded to the subscribers within fifteen days from the date of completion of sixty days, such amount shall be treated as a deposit under these rules.
(b) Any adjustment of the amount for any other purpose shall not be treated as refund.
The above details are in accordance with my study and interpretation of the law. Any suggestion / comments on the same is welcome. Every day Government comes out with various clarification, relief and explanations. If any changes does happen to above position, readers are advised to keep themselves abreast of latest development. This discussion includes updates made till yesterday.
With regards,
CA Ashok K. V. Shah
+ 91 98300 75312
A H K & COMPANY
Chartered Accountants
Mercantile Building
Chartered Accountants
Mercantile Building
9/12, Lal Bazar Street
Suite # 7, Block-B, 3rd Floor
Kolkata - 700 001 WB India
Ph. No. : 4066 1120
Kolkata - 700 001 WB India
Ph. No. : 4066 1120
Fax. No.: 2231-3240
__._,_.___
Posted by: shripal shah <shrip77@yahoo.com>
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