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Sunday, November 30, 2014
[aaykarbhavan] Free Press Journal
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[aaykarbhavan] Business Standard
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Posted by: Dipak Shah <djshah1944@yahoo.com>
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[aaykarbhavan] Source Business Standard
| Sebi to launch consultation for promoter reclassification | ||
|
Mumbai, 30 November Adopting a key non- legislative recommendation of the Financial Sector Legislative Reforms Commission ( FSLRC) panel for overhaul of financial sector regulatory framework, the Securities and Exchange Board of India ( Sebi) is launching apublic consultation for framing rules to allow reclassification of promoters at listed firms looking to become public shareholders. The new norms can have a significant impact on the way some merger and acquisition deals are structured, as also in cases involving corporate restructuring that take place due to disputes among members of business families or after settlements between rival corporates. Some of the scenarios where such reclassification has already been sought by promoters include cases of split in a promoter family, a main promoter selling majority stake to another investor, marriage between members of rival business families and a promoter group wanting to exit from day- to- day operations of a listed company. While the government is looking to implement many recommendations of FSLRC in days to come, it has asked regulators, including Sebi, to begin adoption of governanceenhancing and non- legislative suggestions made by this panel on a proactive basis. Consequently, Sebi has decided to frame all its major policy decisions after a public consultation process, as suggested by the FSLRC, a senior official said. "As the change in process of reform continues ... I have not the least doubt that a large number of these ( FSLRC) recommendations will actually see implementation in the days to come," Finance Minister Arun Jaitley said at a seminar organised by the BSE yesterday. While Sebi has been framing most of its key regulations after apublic consultation over the draft norms, it would now onwards follow this procedure for all policy matters having any significant implications for various market participants. As part of the new procedure, Sebi would make necessary amendments to its existing regulations governing re- classification of promoters after finalising a policy in this regard pursuant to a public consultation process. Among others, amendments might be required to the regulations governing takeovers, listing norms and the disclosure rules applicable to listed companies, the official said. A discussion paper containing draft regulations for reclassification of promoter as public shareholders, which have been finalised after detailed deliberations by Sebis Primary Markets Advisory Committee, would be soon put in public domain for comments from all stakeholders. The paper would also detail the various scenarios and conditions under which a promoter or promoter group can be reclassified as a public shareholder. At present, the regulatory framework does not prescribe any specific criteria for such reclassification, which Sebi feels is required to lend objectivity to the process of reclassification of promoters of listed companies as public shareholders under various circumstances. One of the scenarios include an existing promoter group entering into an agreement with anew group of investors for sale of a substantial stake and expressing its intention to become a public shareholders after giving away all special rights and privileges enjoyed by them. In another case, daughter of one of the promoters of a listed company gets married to a family member of a business rival and wants to re- classify her status as a public shareholder. The other test case presented by Sebi involves a promoter deciding to sell a majority of his or her stake to a new strategic investor looking for a controlling stake, and then retaining a minority stake along with position of chairman. | ||
| De- listing ' reform' will nudge more fraud | ||
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The fine print is yet to be out. However, even while waiting for the fine print, the very first paragraph in Sebi's press release on the subject makes it clear that de- listing transactions have been made far more difficult —they have not been made easier. The paragraph says: " The de- listing shall be considered successful only when ( A) the shareholding of the acquirer together with the shares tendered by public shareholders reaches 90 per cent of the total share capital of the company and ( B) if at least 25 per cent of the number of public shareholders, holding shares in dematerialised mode as on the date of the board meeting which approves the de- listing proposal, tender in the reverse book building process." The widening gap between approval of regulations by Sebi at a board meeting and the actual draft regulations being notified is worrisome. This practice demonstrates that the directors on the Sebi board, despite presiding over the governance of a regulatory body, consider the actual language of the regulations as too trivial to bother themselves with. It is evident that they approve regulatory prescriptions in abstract concept, although anyone involved with regulations anywhere in the world would know that the devil in regulatory frameworks lies in the detail. That is worthy of comment in a separate column altogether. Coming back to the Sebi press release, not only has de- listing been made tougher, the new intervention in the regulations is a material deviation from well- established principles of Indian corporate law. The prescription that 25 per cent of the public shareholders in number have to tender their shares is seriously problematic in implementation. Worse, it is blatantly in contradiction with the colour sought to be given to the " reform" of the regulations i. e. of making things easier. Two other new conditions have been imposed. First, the number of shareholders should have tendered their shares in dematerialised form. Second, the number of shareholders should be reckoned on the date on which the board approves the de- listing. It is well possible that a company can never delist simply because shareholders who held shares on the date the board approved may have sold their shares. Therefore, if there is a churn in the holdings of public shareholders, it is possible that more than 75 per cent of the shareholders who held shares on that date are no longer shareholders. In other words, the condition of at least 25 per cent shareholders in number as of a certain date should tender shares, could never be met. The most serious problem with the new approach is that Indian securities law would deviate for the first time from the well- established norm of corporate democracy — of reckoning voting rights in terms of percentage of shareholding rather than in terms of number of shareholders. For example, when company law lays down the standard for a resolution to be passed, it prescribes counting the vote in terms of voting rights attached to the shares. It does not provide for attaching equal voting rights to all shareholders regardless of how many shares each one owns. Sebi's new approach or introducing the number of shareholders as a metric, would initiate new jurisprudence that is wholly unnecessary. Such an approach could in fact incentivise fraud and impose enormous transaction costs on market players and serious administrative costs on Sebi to monitor compliance. When Sebi's stated objective is to combat fraudulent collusion between large public shareholders and the promoters when a company is being de- listed, it simply has to step up the game for enforcement. By changing the law, it is imposing an unwarranted burden on the market and on itself. Take the law on oppression and mismanagement under company law. The law places a materiality threshold for eligibility to approach the enforcement machinery in terms of 10 per cent of the voting rights or a hundred shareholders in number. This is to enable a greater access to justice if there were widespread discomfort among shareholders regardless of number of shares held. However, this very provision is a source of enormous litigation. Often, just before initiating litigation, shares get transferred to multiple persons to meet the eligibility threshold of the larger number of aggrieved shareholders. Weeks and months are then spent in intense litigation to determine the legitimacy of the very threshold to assert rights. Company managements typically allege that the transfers are a fraud only to meet eligibility norms. Shareholders argue that the literal meaning of the law should be adopted. In short, the new regulatory measure will nudge the securities market too towards adopting such bad practices, with the resultant litigation. Sebi's shoulders are very broad and their muscles are highly empowered to act against fraudulent practices when it finds collusion between promoters and sections of public shareholders. Both the Sebi Act and the regulations prohibiting fraudulent and unfair trade practices give Sebi sweeping powers. It should use that muscle for enforcement if it finds abuse in the de- listing market. The propensity to legislate against every problem, real and perceived, makes life difficult for all, and worse, seeds further bad conduct. The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own Sebi's propensity to legislate against every problem, real or perceived, makes life difficult for all WITHOUT CONTEMPT SOMASEKHAR SUNDARESAN The widening gap between approval of regulations by Sebi at a board meeting and the actual draft regulations being notified is worrisome | ||
|
Practising Company Secretary
Chennai
Mobile 93810 11200
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LET US SUPPORT COMPANY SECRETARY BENEVOLENT FUND FOR COMMON CAUSE
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[aaykarbhavan] Judgments and Infomration [2 Attachments]
Find here how we kill entrepreneurship in India
Shaifaly Girdharwal
You will agree with if you ever tried to start a venture in India. When I go to conferences and take part in discussion people say Indians are not that innovative, creative and daring to build something like Google, Facebook, LinkedIn, freelancer, okay I see we get the technical knowledge late so people around the world capture the market before we can enter it. But in FMCG…we are the biggest consumer market still HUL is largest seller here, why not an Indian company. If MacDonald can sell us burgers then why can't we. By the way I know some people can oppose me by telling the number of software engineers in Silicon Valley or will count me a number of people on high rank responsibilities in big corporates.Let me clear in advance, my concern is why we are CEO's but not the owner…why we are a good suitable to handle that company but not to conceive, form and grow it. One more clarification I am not opposing any corporate. And I appreciate all ventures and their regard their success. I am a citizen of India and I am also running a venture. Now I am going to tell how we kill the ventures and why there are no big ventures in India.
1) Government policies: Let me start from the poorest of ventures. Recently In Delhi, Capital of India, E-Rickshaw was introduced. Some venture mind rickshaw pullers find it a good opportunity and they borrow money to buy them so as to increase their earning and have a better life. There were other benefits also. It was a zero pollution vehicle, It was a better option for users also. Then for an accident in which a child was died Supreme Court banned them and asked government to make a policy for safety. Although many a times people died by accident of car, train, plane but nobody ban them. Now poor people who borrow at 2-3% per month have ever worst life.
This was the basic example how things work here. Biggest of business houses have to face the same problems. Even Vodafone in 2G scam, they were not a party to scam still their licence was also suspended.
2) Shift of power:Let me make it clear by another example. Government announce a project and ask for bids. Companies bid there and get the project, then companies borrow from the bank to start work on it. After one or say two years government change and project is cancelled. No proper communication, no reason, and yes in first phase may be they have spent in paying bribe at various levels. Now pay the interest and wait for the day you will find some mediator to approach ministry.
3) Compliances: I can't explain all the compliances but let me list some Act's we need to follow.
- Income Tax Act,1961
- Companies Act, 2013
- Service tax Provisions
- VAT/ Profession Tax Provisions
- FEMA / RBI
- Excise Duty Related Provisions
- Custom Duty / DGFT Related Provisions
Even when we don't have money to hire sales people we have to hire people to look after for all of this compliance. Also even after that you case is in scrutiny you will have to pay under the table to Income tax people
Think a hundred times before starting a new venture here.
(Author Shaifaly Girdharwal is a Cross border business set up and process outsourcing Consultant)
4 Things that destroy your LinkedIn profile
Shaifaly Girdharwal
It is really sad to find that so many people use LinkedIn but they don't understand what it is all about. When you are going to create your profile on a website like LinkedIn your approach must be very professional, serious, to the point and decent. We are here for some benefit, professional benefit. First thing to do is differentiate between LinkedIn, Facebook, meet up and dating sites. You may be shocked but I have seen so many guys here behaving extremely unprofessional. Some people try to know the personal details, some people ask for a dinner, some even go far and ask for a date and some may even start flirting directly. I guess there must be some girls who even got marriage proposals here (If any of the readers please share in comment, I would love to see that). I am just listing some of the points we should take care while using LinkedIn.1) Profile pic:
It's really funny to see the amazing profile pics like a pic showing a boy having shower (If you don't believe I can give you the link to his profile) or girls having sexy and intimate profile pics here. Some people don't take care about uploading a clear and high resolution pic and some forget to take care of background in pic. I saw a pic recently clicked in group of friends. It could have worked if they were colleges although even that will not be appreciated. LinkedIn is your professional face online, so you got to make it as professional or close to how you want to present yourself when you for a job interview or a business meeting. All of us like fun and enjoyment but for that we have Facebook. Here we are supposed to show our professional competence. Your profile image is your first introduction so choose it carefully. A pic in professional attire with a soothing background is enough, you don't need to show your sexiness here.
Avoid following clicks
a) Marriage party or birthday party pics
b) Pics in casual dresses like nightwear
c) Pics showing casual posture like laying down on bed,or laying on a couch
d) Pics in fun places like swimming pool, sea saw or on playthings.
e) Clicks with background having logo of some brand or company you are not associated. This will give a wrong impression and so many people may assume that you work there without going through your profile.
2) Connections: Be careful before sending a request to connect or accepting any request. If you will bombard your profile with so many people it will fill your dashboard with useless stuff. This will result in a wastage o time and resources. Time is less so try to make its optimum utilization. Even if you are here for marketing your product or services, adding useless people will waste even double of your efforts.
3) Communication: Avoid these things while communicating on LinkedIn
a) Asking personal question
b) Flirting: like praising too much for physical appearance
c) Asking for personal contact details especially again and again when someone has already refused it.
d) Sending spam messages
e) Group messages unless you are sure that all in group will be interested
4) Approach: Here we approach people with a professional connect and for professional reason. You may also have connected to so many people and have joined so many groups. It is important to keep your approach professional. Don't start argument on useless things as this will be in feed of so many people and will result in wastage of their time.
Keep it extremely professional, serious and show your strength. Discuss topics related to work and workspace related topics so that it can serve it's real purpose for all of us.
(Author Shaifaly Girdharwal is a Cross border business set up and process outsourcing Consultant)
5 Mistakes make your workplace the "worst place"
Shaifaly Girdharwal
Some years back I watch 'Horrible Bosses' it was amazing to see the level of torture and I know so many employees should have feel relieved after watching that movie realising that their bosses are still bearable and they don't need to plan any murder. There are so many articles on how to make work place better for employers but this one is for employees.What are the mistakes on our part that make our work places hell for us. I am listing here some of the behavioural controls that will make your life better at workplace.1. Don't make friends or foes:
Why:
1) Office is a workplace and your are supposed to maintain it strictly professional.
2) When you list someone as friend or enemy you get biased . you may be required to coordinate and work with people you hate and this will make your life hell.
3) People change as per their own requirements.When you are a friend you will expect support and favour and this may hurt you because it may not be feasible for either if you to favour each other.
2. Discussing personal matters in office:
Why:
I am a girl and I know it is our weakness , when we are in stress we need someone to listen to us.Generally life partner and family is there but if the reason of stress is family itself then where to relieve our stress.We do that in office with our colleagues. I am not blaming ladies I know even man do this but proportion is very less. I will say 75:25. Ladies can't help sharing their personal things and emotions in office. Soon people around you know all of your weakness and if they are self composed they will soon start using your own weaknesses against you. Then you will have no solution, control yourself.
3. How to handle this
If you are sufferring some deep stress use portal like www.shepokeme.com where you can share your stress anonimously and you will feel relieved without losing your secrets.
4. Mind your own business:
why:
1) Everybody have their own expectations, when they will be disgruntle they will come to you and speak a lot of negative about company and boss.If you will start to react on those things you will be in blacklist of company for no reason and worst part will be when that person will resolve his issues with management and will be back in good books and you will lose both of the relations.
2) Other people will also mind their business when you will need them and they should.
5. Get engage in any emotional or physical relation
Why:
1) If you know about Mr. Fanish murty of Infosys and Igate. Lost his position two time for his alleged relationship in office. For any emotional or physical desire choose people outside office.
2) It is highly unprofessional to have affair in office this will make life of others uncomfortable.
3) Whatever you will do people with take it as a favour to that person, that will destroy your image.
I am open for suggestions and feedback
(Author Shaifaly Girdharwal is a Cross border business set up and process outsourcing Consultant)
Empanelment with SBI for Concurrent Audit of Branches in Kerala
State Bank of India Local Head Office, S.S. Kovil Road Trivandrum 695 001
Empanelment of Chartered Accountants to carry out
Concurrent Audit of Branches situated in the State of Kerala
Empanelment of Chartered Accountants to carry out
Concurrent Audit of Branches situated in the State of Kerala
Applications are invited from Partnership Firms of Chartered Accountants of RBI Category II and III and suitable for empanelment as Statutory Branch Auditors for Public Sector Banks as per RBI norms for carrying out Concurrent Audit on full time, contractual basis (renewable every year, at Bank's discretion) at its selected Branches / Offices / Credit Processing Centres (CPCs) situated in the State of Kerala. The Audit firms under RBI Category I can also apply provided they are agreeable to the remuneration payable to Category II or III and found suitable as per RBI norms. The Audit firms who have already been engaged as Concurrent Auditors by Kerala Circle need not apply.
Last date for receipt of Application: 29th November 2014.
Those who are interested may submit
[i] Application/ Bio-data together with passport size photographs of all partners
[ii]Photostat copies of Degree Certificate
[iii] Membership Certificate of Institute of Chartered Accountants of India (ICAI)
[iv] RBI Category certificate
[v] Any other certification obtained, etc.
to The Asst. General Manager (Audit), State Bank of India, Audit Department, Local Head Office, S.S. Kovil Road, Trivandrum 695 001 in sealed cover.
Terms and Conditions:
[a] Expertise in audit of Banking related areas and experience as Concurrent Auditors of other Banks in the past is preferred.
[b] Preference will be given to locally based Chartered Accountants or proximity to where the Branches / offices are situated.
[c] One employee/Articled Clerk is to be stationed on a full day basis at the Branch on an ongoing basis.
[d] A partner of the firm must visit the Branch on at least two days in a week [on full day basis].
[e] The Concurrent Auditor should submit report at fortnightly intervals on irregularities observed and rectified.
[f] Audit Firm should acknowledge the appointment letter as a token of the Firm agreeing to the terms and conditions of appointment.
[g] The Bank will have right to reject applications and Bank's decision in empanelment is final. Further, if the services of Concurrent Auditors are not satisfactory, Bank will have the right to terminate the contract, any time.
[h] The following data in MS-Excel format may be sent by email to eca.lhotri@sbi.co.in and hard copy of the same duly signed may also be forwarded along with the application.
i) Name of the Firm
ii) FRN No.
iii) Constitution
iv) Date of Registration of Partnership firm
v) Standing of the Firm (No. of years)
vi) Address1, Address 2, Address3
vii) Main Office at
viii) Branch Office, if any 1, 2, 3
ix) Contact No. Land line , Mobile
x) Email
xi) RBI Category
xii) No. of CAs exclusively associated with the firm (Full time)
xiii) No. of partners exclusively associated with the firm (full time) (out of (ii))
xiv) Professional Staff
xv) Bank Audit Experience (Type of Audit, Name of Bank, No. of years)
Audit Fee:
| Branches | ||
| Business Level of Branches | Fee Structure (Rs per month) | RBI Grade of Auditor |
| Deposit Rs 300 Crs & above and Advance < Rs 400 Crs | 25,000 | Grade 3 |
| Advances Rs 400 Crs & above | 35,000 – 50,000 | Grade 2 / 3 |
| CPCs | ||
| LCPC/TFCPC | 25000 – 30000 | Grade 3 |
| RACPC/SMECCC/RASMECCC | 40000 – 50000 | Grade 2 / 3 |
Scope of Concurrent Audit / Areas to be covered:
[a] Compliance with RBI Guidelines / Guidelines of other regulatory agencies such as FEDAI /IBA.
[b] Compliance with Income Recognition and Asset Classification (IRAC) norms (to verify whether the classification of advances has been done as per stipulated guidelines).
[c] Whether any of the activities prohibited by RBI are undertaken; Whether Important RBI guidelines issued from time to time in the field of advances, foreign exchange, investments and other statutory requirements prescribed by RBI, are being complied with.
[d] Compliance with guidelines/ground rules of agencies such as FEDAI/IBA. Verification of various statements, returns prescribed by RBI.
[e]Compliance with provisions of Banking Regulation Act, 1949.
[f]Compliance with norms governed by Section20 in regard to granting loans/advances against own shares etc.
[g]Section 20A : Restrictions on power to remit debts.
[h]Section 26 : Submission of returns of unclaimed deposits.
[i]Section 340 : Production of documents of conditional nature to any other authority.
[j]Section 452: Return of paid instruments to customers.
[k]Banking Companies (Nomination Rules) Section 45 ZC, 45 ZE and 45 ZF.
[l]Any other provision which may be identified by Banking Operations Department of RBI for verification of compliance from time to time.
[m] FOREX / Security Transaction: To verify all FOREX / Security Transactions undertaken at the branches / dealing rooms. The Concurrent Auditor will have to verify whether the transactions or decisions are within policy parameters laid down, do not violate provisions of Exchange Control Manual / FERA 1973 and other RBI instructions and they are within delegated authority.
[n] Any other guidelines / instructions issued from time to time from Govt. of India, RBI, State Bank of India and/or any other Statutory Authorities.
S. 147: The reasons must specifically indicate as to which material fact was not disclosed by the petitioner in the course of its original assessment
In the reasons supplied to the petitioner, there is no whisper, what to speak of any allegation, that the petitioner had failed to disclose fully and truly all material facts necessary for assessment and that because of this failure there has been an escapement of income chargeable to tax. Merely having a reason to believe The assessee furnished the registration certificate from District Industries Centre as SSIU to the AO during assessment proceedings. The learned AO cannot embark upon the inquiry about the genuineness of certificate issued by another central government authority. The reliance is placed in following cases:
Apollo Tyres Ltd. V/s. CIT 255 ITR 273 (SC) = 2002-TIOL-185-SC-ITVadilal Chemicals Ltd. V/s. State of Andhra Pradesh and Others. 142 STC 76 (SC) = 2005-TIOL-100-SC-CTMalayala Mamorama Co. Ltd. V/s. CIT 300 ITR 251 (SC) = 2008-TIOL-77-SC-IT
Once the one authority of central government has issued certificate as SSIU, another authority cannot embark upon the inquiry about the genuineness of the certificate. This view is held by the SC in case of Apollo Tyres Ltd. V/s. CIT 255 ITR 273 = 2002-TIOL-185-SC-IT-LB. The SC in case of Vadilal Chemicals Ltd. V/s. State of Andhra Pradesh and Others 142 STC 76 (SC) = 2005-TIOL-100-SC-CT has recently held that the Dept. of Industries & Commerce having exercised its mind and having granted the final eligibility certificate, the commercial tax department could not go behind it. The SC while deciding this case has followed the ratio laid down by the SC course in case of Apollo Tyres Ltd. 255 ITR 273 = 2002-TIOL-185-SC-IT-LB.
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