CII Global Regulatory Update, October 2013

Confederation of
Indian Industry

GLOBAL
Regulatory
DATE
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October 2013, Volume 3, Issue 11

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DISCLAIMER CLAUSE
This Regulatory Update has been compiled with a view to update readers and CII membership of changes on the covered
topics in the Corporate Governance & Regulatory Affairs domain in the international as well as the domestic front. The
compilation must not be taken as an exhaustive coverage of announcements and news nor should it be used as
professional advice. Although, every endeavour has been made to provide exhaustive information, no claim would be
entertained in the event any information/data/details/text is found to be inaccurate, incomplete, at variance with official
data/information/details released through other sources prior or subsequent to release of the issue. This is only a
compilation and not a reproduction of announcements / articles / items. CII does not subscribe to the views expressed in the
items. These reflect the author’s personal views and in the event of any violation of IPR by the subscribers, CII would not be
held responsible in any manner. Further, no part of this Update may be reproduced, copied or used without the prior
permission of CII.

Contents

DOMESTIC UPDATES
National Updates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
GLOBAL UPDATES
International Updates . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLES
REPORTING AND COMPLIANCE
Emerging Issues in Recognition . . . . . . . . . . . . . . . . . . . . . . 13
of Revenue by Real Estate Developers
New Companies Act – . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Facilitating Business Or…?
CII Submits detailed industry views on the . . . . . . . . . . . . . . 21
1st and 2nd Tranches of Draft Rules under
Companies Act, 2013

1

GLOBAL REGULATORY UPDATE

NATIONAL
By :
DOMESTIC UPDATES

Release of 3rd and 4th tranche
of draft Rules under Companies
Act 2013
The Ministry of Corporate Affairs has
hosted the 3rd and 4th tranche of
draft Rules for views from
stakeholders. The draft Rules cover
Deposits, SFIO, National Financial
Regulatory Authority (NFRA) and
IEPF. The rules are attached and also
available on the Ministry's website for
comments from stakeholders. The
URL of the weblink is
http://ncbfeedback.mca.gov.in/

I. SEBI UPDATES
Standard Operating Procedure
for Stock Exchanges in case of
companies not complying with
listing conditions

SEBI by its circular dated September
30, 2013 has decided to do away with
the practice of suspending the trading
of shares of listed companies which
have defaulted, as the suspension has
turned out to affect the interests of
non-promoters much more than those
of the promoters. In case of noncompliant companies, other penalties
such as imposition of fines, freezing of
shares of the promoter and promoter
group, transferring the trading in the
shares of the company to separate
category, would be taken before
suspending the shares of the
company.
The Standard Operating Procedure
('SOP') to be followed by the Stock
Exchanges will be as follows:
Imposition
v

of fines (on per day
basis) on the company for non-

2

compliance and delay in compliance
with continuous listing conditions.
v
In case

of non-compliance for 2
consecutive quarters, moving the
shares of the non-compliant
company to "Z" Category, where
the trades would be settled on
"Trade for Trade" basis.

v
In case

non-compliance continues,
freezing the shares of the promoter
and promoter group.

v
In order

to provide an exit window
to the non-promoters, after 15 days
of suspension of the trade, the nonpromoters on the first day of every
trading week for a period of 6
months would be able to trade their
shares on the "Trade for Trade"
basis.

SEBI permits contracts for preemption and options in
shareholders agreements
SEBI by its notification dated October
3, 2013 has permitted contracts for
incorporating clauses including right
of first refusal, tag-along or dragalong rights contained in the
shareholders agreements or articles
of association of the companies.
The contracts entered into by listed
companies can now contain an option
for purchase or sale of securities
subject to the following:
(a) the title and ownership of the
underlying securities are held
continuously by the selling party
for a minimum period of 1 year
from the date of entering into the
contract;
(b) the price or consideration payable
for the sale or purchase of the
underlying securities pursuant to
exercise of any option contained
therein, is in compliance with all
applicable laws; and
(c) the contract has to be settled by
way of actual delivery of the
underlying securities.
The contracts permitted under this
notification shall be in accordance
with the provisions of Foreign
Exchange Management Act, 1999.
Further, this notification shall not
affect or validate any contract which
has been entered into prior to the date
of this notification.
This notification supersedes the
earlier SEBI notification, i.e., S.O.184
(E) dated March 1, 2000.

SEBI (Listing of Specified
Securities on Institutional
Trading Platform) Regulations,
2013

SEBI has released the SEBI (Listing of
Specified Securities on Institutional
Trading Platform) Regulations, 2013.
This is to allow listing and issue of
capital by small and med ium
enterprises on institutional trading
platform without initial public
offering. Under these regulations, the
minimum amount for trading or
investment on the Institutional
Trading Platform ('ITP') is to be Rs. 10
Lakh with an easier exit option for
entities such as Angel Investors,
Venture Capital Funds and Private
Equities. The regulations provide that
the company would not make an IPO
while its specified securities are listed
on ITP but can raise capital through
private placement or rights issue
without an option for renunciation of
rights.
Eligibility Criteria: To be eligible for
listing on an ITP, the SME company has
to satisfy certain conditions including
not appearing on the defaulters list of
the RBI; no pending winding up
petition; no regulatory action has
been taken against the company
within five years prior to the date of
application for listing; and the
company has at least one full year's
audited financial statements, for the
immediately preceding financial year
at the time of making listing
application. The regulations also
provided that an SME seeking to list on
ITP needs to fulfill any of the
investment criteria which is either a
minimum investment of Rs 50 lakh in
its equity shares by a category of fund
approved by the regulator; or by a
Qualified institutional buyer or a
merchant banker with a lock-in period
of three years from the date of listing;
or an investment in the equity capital
has been made in the SME by a
specialised international multilateral
agency or domestic agency or a public
financial institution; or it has received
money from a scheduled bank for its

3

project financing or working capital
requirements and a period of three
years has elapsed from the date of
such financing and the funds so
received have been fully utilized.
Promoter Holding Lock-in: The
regulations require 20% of the post
listing capital to be held by the
promoters for a period of three years
from date of listing.
Exit Norms: Regarding exit norms, a
company can exit from ITP subject to
the shareholders approving the exit
proposal by a special resolution
passed through postal ballot where
90% of total votes and the majority of
non-promoter votes have been cast in
favour of the proposal, and the stock
exchange approves such exit.
A company whose securities are listed
on ITP will have to exit the ITP if its
securities have been listed for 10
years, the company has paid up capital
of over Rs 25 crore, revenue of more
than Rs 300 crore and market
capitalisation of more than Rs 500
crore.
Delisting: The company can be
delisted if it does not comply with the
corporate governance norm(s) for
more than one year or with the listing
regulations specified by the
recognized stock exchange.


SEBI- Streamlining Investor
Grievance Redressal
Mechanism
SEBI to streamline the investor
grievance redressal mechanism and
make it more investor friendly, has by
its circular dated September 26, 2013
decided to give monetary relief to
investors having claims up to Rs.10 Lac
from the Investor Protection Fund of
Stock Exchange ('IPF').
Some of the salient features of the
initiatives include:
a) The Investor Grievance Redressal
Committee ('IGRC') in addition to
the conciliation process can decide
upon the admissibility of claims,
wherein if the complaint is not
resolved upon the conclusion of
the conciliation proceedings, the
IGRC would ascertain the claim
amount admissible to the investor,
which the Stock Exchange ('SE')
would block from the deposit of
the concerned member.
Subsequently the SE would give 7
days from the date the member
signs IGRC's directions to inform
the SE, if he intends to move to the
next level of resolution i.e.
arbitration.
b) In case, the member does not opt
for arbitration, the SE would,
release the blocked amount to the
investor after the aforementioned
7 days.
c) In case, the member opts for
arbitration and the claim value
admissible is not more than Rs. 10
lac, monetary relief would be given
as mentioned below:
i. 50% of the admissible claim
value or Rs. 0.75 lac, whichever
is less, would be released to the
investor.
ii. In case the arbitration award is
in favour of the investor and

the member opts for appellate
arbitration then a positive
difference of 50% of the
amount mentioned in the
arbitration award or Rs. 1.5 lac,
whichever is less and the
amount already released to the
investor at clause (i) above,
shall be released to the
investor.
iii. I n c a s e t h e a p p e l l a t e
arbitration award is in favour of
the investor and the member
opts for making an application
under Section 34 of the
Arbitration and Conciliation
Act, 1996 to set aside the
appellate arbitration award,
then a positive difference of
75% of the amount determined
in the appellate arbitration
award or Rs. 2 lac, whichever is
less and the amount already
released to the investor at
clause (i) and (ii) above, shall be
released to the investor.
iv. The amount payable by the
investor for appellate
arbitration has been reduced
from `.30,000/- to `10,000/-.
To address the complaints received as
regards 'unauthorised trades', the
SEs' have to ensure that the contract
note issued by the member for
transactions owing to noncompliance of margin calls bears a
remark specifying the same and that
the member maintains a verifiable
record of having made such margin
calls and the clients not having
complied with the same.

SEBI releases draft of Real
Estate Investment Trusts
Regulations, 2013 for public
comments
SEBI has sought public comments on
the draft REIT Regulations by October
31, 2013 under which it has proposed

4

the listing of Real Estate Investment
Trusts ('REITs'). The REITs would
under the regulations be allowed to
list on stock exchanges through Initial
Public Offer ('IPO') and would be
allowed to raise funds further through
Follow-On Offers.
Qualified REIT: In order to be listed the
REIT would need to be first registered
with SEBI in the prescribed manner.
Compliances: Amongst the
compliances which the REIT would
have to undertake, it would be
mandatory for all REITs to declare its
net asset value at least twice a year
post listing. In case of an IPO, the size
of the assets would need to be at least
Rs 1,000, the same proposed to ensure
that initially only large assets and
established players enter the market.
The minimum initial offer size of Rs
250 crore and minimum public float of
25 per cent is specified to ensure
adequate public participation and
float in the units.
Raising Funds: The REIT would be able
to raise funds from any investors,
resident or foreign. However, initially,
till the market develops, it is proposed
that the units of REITs may be offered
only to High Net Worth individuals
/institution and therefore the
minimum subscription size is
proposed be Rs 2 lakh and unit size to
be Rs 1 lakh.
Sponsors are also expected to
compulsorily maintain a certain
percentage of holding in the REIT "to
ensure a 'skin-in-the-game' at all
times.

Investments: REITs will be able to
invest in properties directly or through
SPVs. The REIT would not be allowed
to invest in vacant land or agricultural
land or mortgages other than in
mortgage backed securities. The
investment would be restricted to
assets based in India.
Investor's Approval: To safeguard the
investors' interests, their approval has
been made mandatory for cases such
as certain related party transactions,
transactions who's value exceeds 15%
of the REIT's assets, change in
sponsor, change in investment
strategy or delisting of units.

SEBI approves draft SEBI
(Foreign Portfolio Investors)
Regulations, 2013
SEBI in its Board meeting held on
October 5, 2013 has approved the
draft SEBI (Foreign Portfolio
Investors) Regulations, 2013
("Regulations").
The SEBI (Foreign Portfolio Investors)
Regulations, 2013 have been framed in
light of the provisions of SEBI (Foreign
Institutional Investors) Regulations,
1995, Qualified Foreign Investors
(QFIs) framework and the
recommendations of the "Committee
on Rationalization of Investment
Routes and Monitoring of Foreign
Portfolio Investments".

(a) "Category I Foreign Portfolio
Investor" which shall include
Government and Government
related foreign investors;
(b) "Category II Foreign Portfolio
Investor" which shall include
appropriately regulated broad
based funds, appropriately
regulated entities, broad based
funds whose investment
manager is appropriately
regulated, university funds,
university related
endowments, pension funds;
or
(c) "Category III Foreign Portfolio
Investor" which shall include all
others not eligible under
Category I and II foreign
portfolio investors.
4. All existing FIIs and sub accounts
may continue to buy, sell or
otherwise deal in securities under
the FPI regime.
5. All existing Qualified Foreign
Investors (QFIs) may continue to
buy, sell or otherwise deal in
securities till the period of one year
from the date of notification of this
regulation. In the meantime, they
may obtain FPI registration
through DDPs.

The salient features of the
Regulations include:

6. The registration granted to FPIs by
the DDPs on behalf of SEBI shall be
permanent unless suspended or
cancelled by SEBI.

1. Existing FIIs, Sub Accounts and
Qualified Foreign Investors (QFIs)
shall be merged into a new
investor class termed as "FPIs".

7. FPIs shall be allowed to invest in all
those securities, wherein Foreign
Institutional Investors (FIIs) are
allowed to invest.

2. S E B I a p p r o v e d D e s i g n a t e d
Depository Participants (DDPs)
shall register FPIs on behalf of SEBI
subject to compliance with KYC
requirements.

8. Category I and Category II FPIs
shall be allowed to issue, or
otherwise deal in offshore
derivative instruments (ODIs),
directly or indirectly.

3. The FPI shall be registered as one
of the following:

5

SEBI - Issues pertaining to
primary issuance of debt
securities
SEBI has been holding discussions
with issuers and various other market
participants regarding the issues
concerning development of
Corporate Bond Market. Based on the
suggestions received in the aforesaid
meetings, it has been decided to
implement the following measures:
I. Disclosure of Cash Flows: cash
flows emanating from the debt
securities shall be mentioned in
the Prospectus/Disclosure
Document, by way of an
illustration.
II. Withdrawal of requirement to
upload bids on date-time priority:
allotment in the public issue of
debt securities should be made on
the basis of date of upload of each
application into the electronic
book of the stock exchange.
However, on the date of
oversubscription, the allotments
should be made to the applicants
on proportionate basis.
III. Disclosure of unaudited financials
with limited review report: listed
issuers (who have already listed
their equity shares or debentures)


who are in compliance with the
listing agreement, may disclose
unaudited financials with limited
review report in the offer
document, as filed with the stock
exchanges in accordance with the
listing agreement, instead of
audited financials, for the stub
period, subject to making
necessary disclosures in this
regard in offer document including
risk factors.
IV. Disclosure of contact details of
Debenture Trustees in Annual
Report: It has been decided to
amend the Listing Agreement for
Debt Securities as specified by
inserting a clause stating that the
companies, which have listed their
debt securities, shall disclose the
name of the debenture trustees
with contact details in their annual
report and as ongoing basis, on
their website, to enable the
investors to forward their
grievances to the debenture
trustees.
The provisions in Para I of this circular
shall be applicable for the debt
securities issued, in accordance with
SEBI (Issue and Listing of Debt
Securities) Regulations, 2008, on or
after December 01, 2013. The
provisions in Para II and III of this
circular shall be applicable for the
draft offer document for issuance of
debt securities filed with the
designated stock exchange on or after
November 01, 2013. The provisions in
Para IV shall be applicable from
December 01, 2013 and all stock
exchanges are advised to carry out the
amendments in their Listing
Agreement.

(STAs) and the Depositories / Issuer
companies (in-house STAs) for
effecting transmission of securities
held in physical as well as
dematerialized mode. With a view to
make the transmission process more
efficient and investor friendly, it has
been decided that:
In case of transmission of securities in
dematerialized mode, where the
securities are held in a single name
without a nominee, the existing
threshold limit of ` 1,00,000 (Rupees
One lakh only) per beneficiary owner
account has now been revised to `
5,00,000 (Rupees Five lakh only), for
the purpose of following simplified
documentation, as already prescribed
by the depositories vide bye-laws /
operating instructions.
In case of transmission of securities
held in physical mode:
a. where the securities are held in
single name with a nominee,
STAs/issuer companies shall follow
the standardized documentary
requirement
b. where the securities are held in
single name without a nominee,
the STAs/issuer companies shall
follow, in the normal course, the
simplified documentation, for a
threshold limit of ` 2,00,000
(Rupees Two lakh only) per issuer
company. However, the Issuer
companies, at their discretion, may
enhance the value of such
securities.
The timeline for processing the
transmission requests for securities
held in dematerialized mode and
physical mode shall be 7 days and 21
days respectively, after receipt of the
prescribed documents.

Standardisation and
Simplification of Procedures
for Transmission of Securities

SEBI amends formats under
SEBI (Substantial Acquisition of
Shares and Takeovers)
Regulations, 2011(Regulations).

SEBI has reviewed the process being
followed by the Share Transfer Agents

In order to ensure that adequate
disclosures are made to help investors

6

in taking an informed decision, it has
been decided to modify the formats
for disclosures under regulation 29 (1),
29 (2) and 31 of the Regulations.

II. RBI UPDATES
Branch Opening Regulations
extended
The RBI by its circular dated
September 19, 2013 has decided to
extend its permit in allowing the well
managed domestic scheduled
commercial banks to open branches in
Tier 1 centres of the country subject to
their fulfilling certain criteria.
The banks seeking to open branches in
Tier 1 centres will have to ensure that
(a) 25% of the total number of
branches are opened in unbanked
rural centres i.e. Tier 5 and 6 centres
of the country; and
(b) the total number of branches in
Tier 1 centres do not exceed the total
number of branches opened in Tier 2
to 6 centres and in all the centres in the
North Eastern States (including)
Sikkim.
Further in case the bank is unable to
open all the branches it is eligible to
open, in Tier 1 centres in a year, it may
carry-over and open them in the
succeeding 2 years. However the
shortfall in respect of opening
branches in Tier 2 to 6 centres, or in
unbanked rural centres (Tiers 5 to 6
centres) during the financial year,
must necessarily be rectified within
the next financial year.

RBI issues norms for UCBs to be
included as financial
institutions
consider applications from Urban Cooperative Banks ('UCB') for being
treated as a 'financial institution'
under Second Schedule of the RBI Act,
1934.
The UCB eligibility criteria requires the

fulfillment of the following financial
conditions:
a) Demand and Time Liabilities of not
less than `750 crore on a
continuous basis for one year;
b) CRAR of minimum 12%;
c) Continuous net profit for the
previous three years;
d) Gross NPAs of 5% or less;
e) Compliance with CRR / SLR
requirements and
f) N o m a j o r r e g u l a t o r y a n d
supervisory concerns.

Export Credit Limits in Foreign
Currency
The RBI after receiving
representations on account of the
depreciating rupee value has by its
circular dated September 25, 2013
decided to protect the exporters from
the rupee fluctuations. The banks are
now permitted to set monthly export
credit limits for the borrowers in
foreign currency based on the
prevalent position of their current
assets, current liabilities and
exchange rates.

No Refinancing of ECB at a
higher all-in-cost
The RBI from October 01, 2013 has
decided to discontinue allowing
borrowers to raise ECB at a higher allin-cost to refinance / reschedule an
existing ECB. However, the borrowers
can raise fresh ECB at a lower all-incost, subject to the condition that the
outstanding maturity of the original
ECB is either maintained or extended.

Discontinuance of submitting
details pertaining to expenses
incurred in maintaining Branch
Offices situated abroad
By its circular dated September 20,
2013, the RBI has decided to
discontinue the practice of requiring
the AD to submit half yearly
statements in Form ORA to the
Regional Office of RBI which
constitute the details pertaining to the
remittances and recurring expenses
incurred by the Indian companies for
maintaining their trading office / nontrading office / branch office/
representative office established
abroad. However, the ADs may
continue to keep records of the
approvals granted for the opening of
such offices by the Indian companies.

Clarification for ECB proceeds
for acquisition of shares under
the Government's
disinvestment programme of
PSUs
The RBI has issued a clarification on
September 30, 2013 by which the ECB
can be availed for multiple rounds of
disinvestment of the PSU shares
under the Government disinvestment
programme and not restricted to the
first stage of acquisition of shares and
the mandatory second stage offer to
the public.

Lowering of maturity period
for foreign currency
borrowings undertaken by AD
till November 30, 2013
lower the maturity period from 3 years
to 1 year for the foreign currency
borrowings made by AD Category- I
banks made on or before November
30, 2013 for the purpose of availing of
the swap facility from the RBI. After
the aforesaid date, the said
borrowings will have to be of a
minimum maturity of 3 years.

APPOINTMENTS
l
Mr Melwyn Rego elevated as

Deputy MD at IDBI Bank
Bajaj
l Allianz appoints Mr Anuj
Agarwal as Managing Director
Mr Vikram Kirloskar is new SIAM
l
President
Mr Ashok Vemuri appointed as CEO
l
of iGate
Mr Ashok K. Kantha appointed as
l
next Ambassador to China
Mr M.K. Goel appointed PFC
l
Chairman
Mr Tom Albanese joins Vedanta
l
Resources Holdings
Zenith
l Optimedia appoints Ms
Anupriya Acharya as group CEO

Mr V
l Bhaskar appointed as the
Chairman of AP Electricity
Regulatory Commission
NSEL
lappoints Mr Saji Cherian as
new CEO & MD

Mr Ravi
l Bangar appointed as High
Commissioner to Cyprus
Mr Pawan Goenka appointed as
l
Mahindra's executive director
BPL Medical Technolgies appoints
l

Mr MK
l Lokesh is new ambassador
to Switzerland

Mr Sunil Khurana as CEO
PepsiCo
l names Mr Sanjeev Chadha

Escorts
l appoints Mr Nikhil Nanda
as Managing Director
Ascendas appoints Mr Lee Fu Nyap
l
as CEO of India operations
Tata Steel names Mr TV Narendran
l
as MD; to assume operations from
November 1
Hitachi
l Home & Life Solutions
appoints Mr Shoji Tsubokuta as
new MD

7

as CEO, AMEA region
NDTV
lappoints Mr Soli Sorabjee as
independent ombudsman
SKS Microfinance reappoints Mr R
l
Ramachandra Rao as MD & CEO
Mr Sundeep Sikka appointed
l
chairman of AMFI


GLOBAL
By :

INTERNATIONAL UPDATES

FRC consultation on UK
Corporate Governance Code
The Financial Reporting Council (FRC)
is consulting on whether the UK
Corporate Governance Code requires
to be changed in light of the new
directors' remuneration reporting and
voting framework. The proposed
amendments:
Extend
l the clawback provisions.
Deter
l the appointment of nonexecutive directors (NEDs) who
are also executive directors in
other companies as members of
the remuneration committee.
Specify the action companies
l
should take when a significant
minority of shareholders votes

against the directors'
remuneration report.
The consultation document was
published on 2 October 2013 and the
deadline for responding is 6
December 2013.

Philippines - Firms told to post
corporate governance reports
online
Philippines - SEC has ordered listed
firms to make their annual corporate
governance reports more accessible
to the public. In line with the peer
review process that is being
undertaken by corporate governance
experts within the Southeast Asian
region, all publicly listed companies
are mandated to post their annual

8

corporate governance reports (ACGR)
in their respective websites,.

European Union judgment on
strict liability of professionals
On 19 September 2013, the Court of
Justice of the European Union
('CJEU') gave its interpretation on
"professional diligence" as a major
element of companies' liability under
the Parliament and Council Directive
('the Unfair Commercial Practices
Directive') on the reference for a
preliminary ruling by the Austrian
Supreme Court.
The case brought before the Austrian
Supreme Court concerned an Austrian
travel agency which in its brochure
stated that it had exclusivity rights on

booking services for certain hotels. In
fact the hotels concerned had, by
contract, guaranteed such exclusivity
to the travel agency, but they did not
honour it. Thus the information
contained in brochures was
objectively incorrect and constituted,
from the viewpoint of the average
consumer, a misleading commercial
practice.

need to ensure, in case of misleading
commercial practices, a very high level
of consumer protection. However this
ruling is also somewhat disorienting
for professionals which vis-à-vis
consumers will have no defense if not
by demonstrating the objective truth
of their advertising.

UK brings changes to
Companies Act, 2006

Article 5(2)(a) of the Unfair
Commercial Practices Directive
provides that a commercial practice
would be considered 'unfair' if it is
contrary to the requirements of
professional diligence. In addition,
Article 6(1) also states that a
commercial practice shall be regarded
as 'misleading' if it contains false
information and is therefore
untruthful or is likely to deceive the
average consumer.

The remuneration report must now
include two separate sections - the
remuneration policy and the
implementation report.

The CJEU ruled that if a commercial
practice satisfies all the criteria set out
in Article 6(1) of the Unfair
Commercial Practices Directive for
being categorised as a misleading
practice in relation to the consumer, it
will not be necessary to determine
whether such a practice is also
contrary to the requirement of
professional diligence, as referred to
in article 5(2)(a) of the Unfair
Commercial Practices Directive, in
order for it to be regarded legitimately
as unfair and, therefore, prohibited.

The company has to make payments
in terms of remunerating a current,
former or future director, as per the
remuneration policy. Any payment
which is inconsistent with an
approved policy will be held by the
recipient in trust and can be recovered
by way of a derivative action. The
amendments make the directors
jointly and severally liable for approve
payments outside the scope of the
remuneration policy to indemnify the
company against any loss resulting
from the payments. However the

The recent amendments brought to
UK's Enterprise and Regulatory
Reform Act 2013 will introduce certain
new provisions to the Companies Act
2006, providing a framework for
shareholders' approval for the
director's remuneration policy.

Therefore the CJEU isolated the
notion of misleading practice from the
general notion of unfair commercial
practice. It concluded that the
requirement of professional diligence
is not satisfied even by compliance in
good faith, it amounts to strict liability
for the professional.
This ruling of the CJEU sheds a new
light on the Unfair Commercial
Practices Directive since given by the

9

director may escape liability if he
shows that he acted honestly and
reasonably and the court considers
that, in all the circumstances, relief
ought to be granted.
The implementation report must set
out how the remuneration policy has
been implemented in the relevant
financial year. Shareholders will have
an annual advisory vote on a
resolution to approve the
implementation report.

Antitrust confidentiality waiver
updated by US Federal Trade
Commission and Department of
Justice
With a view to providing a balanced
benefit to authorities and companies
to the extent of conducting
investigations and complying with the
filings and making the procedure less
cumbersome, the US Federal Trade
Commission ('FTC') and the Antitrust
Division of the Department of Justice
('DOJ'), have on 25 September 2013,
jointly released an updated model
waiver of confidentiality for use in civil
matters involving non-US competition
authorities. Confidentiality waivers
allow for the sharing of confidential
company information among the
competition agencies of different
countries and jurisdictions.
The model waiver has revised the
manner of how the FTC and DOJ will


treat privileged information. If the FTC
and DOJ receive information from
another competition authority that
would be legally privileged in the
United States, the agencies will treat
such information as if it were
inadvertently produced and will
return, sequester or destroy that
information in accordance with the
Federal Rules of Evidence and Federal
Rules of Civil Procedure. The agencies
have also asked the companies to
clearly identify privileged documents
to make privilege determinations
easier. The model waiver also makes
clear that it applies to both merger
and non-merger civil investigations
and to matters where international
cooperation between competition
authorities is involved.
The model waiver provides clarity on
the treatment of confidential
information disclosed to non-US
authorities and received by the FTC
and DOJ by separating such
information in two sections. The
waiver provides that information
disclosed by the FTC and DOJ will be
treated as confidential by the non-US
authority in accordance with the laws
of the jurisdiction in which that
authority operates. The waiver further
provides that any information
indirectly received by the FTC and DOJ
will be treated as if it were obtained
directly by the FTC and DOJ, including
with respect to confidentiality,
destruction of documents and
exemption from Freedom of
Information Act disclosures.
The model waiver is a reflection of the
growing international cooperation
between US and international
antitrust authorities and the desire by
the US agencies to eliminate obstacles
to co-operation with other antitrust
authorities.

UK's HM Revenue and Customs
Authority introduces
alternative dispute resolution
mechanism
The HM Revenue and Customs
Authority ('HMRC') has made
available a form of alternative dispute
resolution ('ADR') to small and
medium enterprises ('SME') and
individuals as a means of resolving tax
disputes in a time bound and efficient
manner.
SMEs and individuals can now apply to
HMRC to use a facilitation-based form
of ADR in connection with
outstanding tax disputes. This
involves the appointment of a trained
HMRC facilitator who will work with
the taxpayer and the HMRC case
owner in order to try to broker an
acceptable agreement. The process is
intended to be relatively informal.
HMRC will only accept cases if they are
considered to be suitable for ADR and
are within the framework of HMRC's
litigation and settlement strategy.
However, HMRC will not accept cases
for ADR if they involve issues requiring
clarification in the wider public
interest or which are linked to other
appeals.
ADR may, however, be useful mode of
reaching a negotiated settlement
which the SMEs and individual
taxpayers involved in prolonged
disputes with HMRC can now
consider.

European Union upholds
parental liability in cartel
The Court of Justice of the European
Union ('CJEU') has made it clear that
even if a parent company is unable, by
reason of the ownership structure of
the joint venture, to impose certain
decisions on the joint venture, it

10

remains possible for the parent to
exercise "decisive influence".
The CJEU dismissed appeals filed by
Dow Chemical Company ('Dow') and
E.I. du Pont de Nemours and Company
('DuPont') related to the European
Commission's ('Commission')
decision in the chloroprene rubber
cartel. The CJEU upheld judgments
which found DuPont and Dow to be
jointly and severally liable for the
conduct of their 50-50 joint venture,
DuPont Dow Elastomers LLC ('DDE'),
on the basis that they each exercised
"decisive influence" over it. The CJEU
while dismissing the appeals,
highlighted on the reasoning of the
General Court which other than the
settled principle of 'decisive influence'
relied on a wider assessment of the
economic, organisational and legal
factors that linked DDE to both of its
two parent companies and
particularly their involvement in their
joint venture, which was responsible
for supervising the business of DDE
and approving certain matters
pertaining to its strategic
management.
EU Commission proposes regulation
on indices used as benchmarks in
financial instruments and financial
contracts
The EU Commission has published a
proposal for regulation on indices
used as benchmarks in financial
instruments and financial contracts. It
covers a variety of benchmarks

including interest rate benchmarks
such as LIBOR and commodity
benchmarks, benchmarks used to
reference financial instruments
admitted to trading or traded on a
regulated venue, such as energy and
currency derivatives; benchmarks
that are used in financial contracts
such as mortgages and those that are
used to measure the performance of
investment funds. It seeks to improve
the governance and controls over the
benchmark process through prior
authorisation and ongoing
supervision at national and European
level, and requiring administrators to
avoid conflicts of interest where
possible.

New IOSCO standard on crossborder cooperation
The International Organization of
Securities Commissions ('IOSCO') has
on 18 September 2013 adopted
measures to encourage non-signatory
members to sign the IOSCO
Multilateral Memorandum of
Understanding on cooperation and
exchange of information ('MMoU')
which is an instrument used by
securities regulators globally to
establish an international benchmark
for cooperation and information
sharing.

Committees will be suspended from
30 June 2014; and
l
the voting rights of all remaining

non-signatory members will be
suspended from 30 September
2014.
The resolution will restrict the nonsignatories' ability to influence key
IOSCO decisions due to the limited
support they can provide to IOSCO's
enforcement efforts.

SEC announces settlements in
enforcement actions for short
selling
The Securities and Exchange
Commission ('SEC') has reached a
settlement with 22 of the 23 firms
against which it announced
enforcement actions for short selling
violations.
The firms charged in the enforcement
actions are alleged to have bought
offered shares in a follow-on public
offering after having sold short the
same security during the restricted
period which the law prescribes to be
5 days prior to the date of the public
offering. The enforcement action
shows the commitment of the SEC
towards preventing firms from
improperly participating in public

The highlights of the measures are:
l
all outstanding non-signatory

members cannot nominate
candidates from their organisation
for election to leadership positions
from 30 September 2013;
l
all outstanding non-signatory

members in leadership positions
will be asked to step down from 31
March 2014;
l
the participation of non-signatory

members in IOSCO Policy

11

stock offerings after selling short
those same stocks.

UK Competiton Commission
finalises measures to open up
audit market
The Competition Commission (CC) has
published changes that will open up
the UK audit market to greater
competition and ensure that audits
better serve the needs of
shareholders in future.
The main measures the CC has
proposed are as follows:
l 350 companies must put
FTSE

their statutory audit engagement
out to tender at least every ten
years. This differs from guidance
introduced by the Financial
Reporting Council (FRC) in 2012,
which encouraged companies to
go to tender on a 'comply or
explain' basis. No company will be
able to delay beyond ten years,
and the CC believes that many
companies would benefit from
going out to tender more
frequently at every five years. If
companies choose not to go out to
tender this frequently, the Audit
Committee will be required to
report in which financial year it


shareholders on the findings of
any AQR report concluded on the
company's audit engagement
during the reporting period.
l
A prohibition of 'Big-4-only'

clauses in loan agreements (ie
clauses that limit a company's
choice of auditor to a preselected
list or category), although it will be
possible to specify that any
auditor should satisfy objective
criteria.
l must be a shareholders'
There

vote at the AGM on whether Audit
Committee Reports in company
annual reports are satisfactory.
plans to put the audit engagement
out to tender and why this is in the
best interests of shareholders.
lFRC's Audit Quality Review
The

(AQR) team should review every
audit engagement in the FTSE 350
on average every five years. The
Audit Committee should report to

l quality global journalism
High

requires investment. Please share
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e 2 - 2 a a 9 - 1 1 e 3 - a d e 3
00144feab7de.html#ixzz2jCv41pDJ

Competition and Markets
Authority unifying OFT with
Competition Commission
launched
UK's biggest overhaul of competition
regulation for decades has taken place
as the Competition and Markets
Authority officially came into
existence. The CMA has been created
by unifying the Competition
Commission with most functions of
the Office of Fair Trading - tackling
price fixing, monopolies and unfair
mergers. The agency will not start
taking on its own investigations or
market studies until April, with the
two legacy regulators running their
respective cases until then.

CONTACT
Krishnayan Sen / Dipankar Bandyopadhyay
partners@verus.net.in
Mumbai
24 M. C. C. Lane
Fort
Mumbai 400023
E: mumbai@verus.net.in
T: +91 22 22834130 / 01
F: +91 22 22834102
India member firm of:

New Delhi
E-177 Lower Ground Floor
East of Kailash
New Delhi 110065
E: delhi@verus.net.in
T: +91 11 26215601 / 02
F: +91 11 26215603

Kolkata
10 Old Post Office Street
Ground Floor
Kolkata 700001
E: kolkata@verus.net.in
T: +91 33 22308909
F: +91 33 22487823
Winner:
Best Newcomers: India
Business Law Journal Awards
2012

W: www.verus.net.in
12

Hyderabad
Chamber#103 Ground Floor
6-3-252/A/10 Sana Apartments,
Erramanzil
Hyderabad 500082
E: hyderabad@verus.net.in
T: +91 40 39935766

Emerging Issues in Recognition
of Revenue by
Real Estate Developers
By Mr. Koosai Lehery, Director, Accounting Advisory Services,
KPMG, India

C

urrently there is no separate
Accounting Standard (AS) in
India for recognition of
revenue by real estate developers.
The accounting and reporting for such
transactions is based on principles
specified in Guidance Note (GN) on
Accounting for Real Estate
Transactions, which was issued by the
Institute of Chartered Accountants of
India (ICAI) in February 2012 and as
supplemented by the guidance in AS 9
- Revenue Recognition and AS 7 Construction Contracts.

The 2012 GN has replaced the 2006 GN
of the ICAI on Recognition of Revenue
by Real Estate Developers. The 2006
GN required certain principle based
conditions (risk and reward of
ownership and effective control being
transferred, revenue being
measurable and no significant
uncertainty on ultimate collection)
and specific conditions (price risk
being transferred to the buyer, and
buyer being able to transfer right in
the property during construction
period) to be met before any revenue

13

is recognised from real estate
transactions. Such principle based
conditions in 2006 GN had resulted in
diversity in practice since these
principles were interpreted and
applied very differently by different
real estate developers in deciding and
applying their accounting policies. The
increase in complexity of real estate
transactions had also contributed to
the increased diversity.
To address this diversity in practice,
the 2012 GN mandates the application


of the percentage of completion
('POC') method in most cases and
gives certain 'bright-lines' (viz. all
critical proje ct approvals are
obtained; 25 percent of the actual
construction costs (excluding cost of
land and development rights) are
incurred; at least 25 percent of the
saleable project area is secured by
contracts; and at least 10 percent of
the revenue is collected on individual
contracts for determining the
eligibility of real estate transactions
for revenue recognition.
The 2012 GN is applicable to real estate
projects which are commenced on or
after 1 April 2012 and also to projects
which have already commenced but
no revenue is recognised up to 1 April
2012.
This article discusses some of the
emerging issues in real estate revenue
recognition, especially on
implementation of the 2012 GN.
Transition period - While the 2012 GN
gave an early adoption option, most of
the real estate developers have
applied it prospectively from 1 April
2012. This has resulted in most
companies following two separate
policies for the same accounting
period, i.e. policy as per the 2012 GN
for projects where the revenue is
recognized for the first time post 1
April 2012 and that as per 2006 GN for
projects where even a small amount
of revenue was recognized before 1
April 2012. Typically, the real estate
projects are long gestation projects
and therefore, the diversity in revenue
recognition is likely to continue until
the projects where the revenue
recognition is based on 2006 GN are
complete.

smallest group of units, plots or
saleable spaces which are linked with
a common set of amenities in such a
manner that unless the common
amenities are made available and
functional, these units, plots or
saleable spaces cannot be put to their
intended effective use. Since there is
no further guidance in the 2012 GN on
'common set of amenities',
determination of what constitutes a
project (complete township, cluster
of towers or an individual tower) has
been subject to diverse
interpretation. This interpretation
may impact the determination of
whether the project is eligible for
revenue recognition. For example, if
an individual tower is determined to
constitute the project and 25 percent
of the saleable area relating to that
tower is sold, the requirement of the
2012 GN relating to minimum sale
would be met. However, in the same
situation if a cluster of towers is
determined to constitute the project,
this criterion may not be met if there
are insufficient sales in other towers
within the cluster.
Since most companies applied the
2012 GN prospectively for projects

'Project' - a unit of account - The unit
of account under the 2012 GN is a
'project', which is defined as the

14

where the revenue is recognized for
the first time post 1 April 2012, the
determination of the unit of account
has also been critical from the
perspective of transition. For
example, if the entire cluster or a
phase has been determined to be a
project and if a small amount of
revenue is recognized on sale of units
in any of the buildings within the
cluster or a phase, then the entire
cluster or a phase may be outside the
scope of the 2012 GN.
Critical approvals - The 2012 GN also
requires that all critical approvals such
as environmental clearances;
approvals of plans and designs; title to
land or other development rights; are
obtained before any revenue is
recognized from the project. For real
estate projects in India, it is common
for developers to start the
construction activity based on partial
approvals. For examples, if the overall
project is of 30 floors, initially the
developer gets approvals for 10 floors.
However, the budgets and financial
projections are for the overall project
size of 30 floors. Such situations could
be subject to different
interpretations, one interpretation

could be that since the approvals for
the entire project are not obtained,
however likely they are, that particular
project does not meet one of the
criteria for revenue recognition and
no revenue should be recognized
from that project.
Cost of land and development rights Cost of land and development rights is
defined in the 2012 GN as all costs
related to the acquisition of land,
development rights in the land or
property including cost of land, cost of
development rights, rehabilitation
costs, registration charges, stamp
duty, brokerage costs and incidental
expenses. In a typical redevelopment
project, a real estate developer incurs
various costs related to rehabilitation
of the slum, such as payments to the
slum dwellers for vacation of the land,
rental charges for temporary housing
of the slum dwellers, construction
cost of rehabilitation units etc. Based
on this, costs related to the slum
rehabilitation (including construction
cost of rehabilitation units) would be
part of land and development right
and needs to be excluded from
calculation of 25 percent threshold for
revenue recognition. There may be
diversity in practice in such cases.
Continuing defaults in payments - The
2012 GN requires that the recognition
of project revenue by reference to the
stage of completion of the project
activity should not at any point exceed
the estimated total revenues from
'eligible contracts'. 'Eligible contracts'
are defined as contracts where at least
10 percent of the contracted amounts
have been realised and there are no
outstanding defaults of the payment
terms in such contracts. Hence, the
2012 GN puts a cap on overall revenue
recognition from a project. For
example, if a company has sold 100

flats in a project and if there are
defaults in payment on 5 flats, then
the revenue from that project cannot
be more than the estimated total
revenue on 95 flats. This is a very
challenging area, especially when a
project is nearing completion and if
there are defaults from many buyers,
theoretically the 2012 GN may require
reversal of revenue already
recognized from the project.
Capitalization of borrowing costs The 2012 GN requires capitalization of
borrowing costs as project costs in
accordance with AS 16, Borrowing
Costs. However, it is not clear from the
2012 GN if the borrowing costs are
excluded from the calculation of
threshold for revenue recognition.
While paragraph 5.3(b) only permits
construction and development costs
to be considered for calculation of
threshold, but the same paragraph
also refers to paragraph 2.5 which
allows allocation of borrowing costs
to cost of construction and
development.
Further, AS 16 requires that the
capitalisation of borrowing costs

15

should be suspended during extended
periods in which active development
is interrupted. Therefore, in a real
estate project, if there are delays (in
obtaining approvals, in the
construction process etc.) that are not
necessarily part of the construction
process, the capitalization of the
borrowing cost during the periods of
delay should be suspended. However,
determining the actual period of delay
and hence, in arriving at the amount of
borrowing costs to be charged to
profit and loss could be very
subjective and may be an area of
inconsistent application in practice.
Joint developments - In the recent
times, Joint Development
Agreements (JDA) have become very
common, wherein the land owners
contribute the land and the real estate
developer constructs and markets the
project. In some cases the land
owners take active part in the day-today construction and development
activities while in most cases the
developer takes care of the execution
of the project and land owner is only
an investor. There are various forms of


arrangement, some developers do
record an upfront cost of
development right based on an
estimated cost of construction of the
area attributable to the land owner.
Such upfront cost may become part of
the percentage of completion
workings for revenue recognition
once the thresholds as per 2012 GN are
met. Some other developers do not
record any upfront cost of
development rights and they would
only record revenue from their share
of the area and charge full cost of
construction, including for the land
owner's area to the profit and loss,
thereby factoring the free area to be
given to the land owner.
JDAs such as profit sharing, area
sharing, revenue sharing or a
combination. Even though the 2012
GN does not give guidance on the
accounting in the books of developer
or the land owner for JDAs, it applies
to the accounting for the projects
which are under JDA model.
In the absence of any specific
guidance, the accounting for JDAs is
diverse in the books of both the land
owners as well as the developers. The
accounting treatment is driven mostly
from the conclusion if the
arrangement is under a joint control. If
there is joint control on the project,

generally, the accounting in the books
of both the land owners as well as the
developers is based on the guidance in
AS 27, Financial Reporting of Interests
in Joint Ventures. In case the project is
not subject to joint control, the
arrangement is generally in the nature
of a barter transaction; whereby the
land owner gets a constructed area or
a share of profit or revenue in
exchange for the land.
For barter transactions, the
accounting practices are diverse with
respect to recording the upfront cost
of development rights in the books of
the developers. In an area share

Authored by:

Mr. Koosai Lehery
Director
Accounting Advisory Services
KPMG, India

16

Even though the revised GN has been
subject to a few issues which could be
interpreted differently (some of them
have been highlighted above), it has
managed to significantly reduce the
diversity in accounting practices, at
least for projects on which revenue is
recognized for the first time post 1
April 2012.
Lastly, the accounting treatment
given in 2012 GN is inconsistent with
Ind-AS (i.e. IFRS converged standards
issued by the Ministry of Corporate
Affairs) and therefore, companies
need to keep an eye out on the
implementation of these standards.

New Companies Act –
Facilitating Business Or…?
By Mr. Lalit Jain, Senior Vice President & Company Secretary,
Jubilant Life Sciences Ltd.

L

ast fewmonthssaw a euphoria
over the enactment of a new
company law. Congratulatory
messages flew.
At various
professional seminars, Government
functionaries attempted to showcase
the bright side of the new law.
Professionals were enthralled at the
new vistas opening up. However,
asthe euphoria subsides, as minute
details of the law sink in and as the
real impact of various provisions
dawns, companies are realizing that
there would be far too many
restrictions and hurdles on
conducting business. Let us consider
some areas of concern.

Some Provisions that Hamper
Business
l Section 185of new law, a
Under

company cannot give loans to its
director or "any other person in

whom the director is
interested"nor provide guarantee
/ security in connection with such
loan. "Any other person in whom
the director is interested"includes
any body corporate, theboard of
directors or Managing Director or
Manager whereof is accustomed
to act in accordance with the
directions/ instructions of the
board/ any director(s) of the
lending company.
In case of a proposed loan to a
wholly owned subsidiary
company, its board members can
be said to work under the
administrative control of the
board of directors of holding
company and as such, the Board of
this subsidiary can be said to be
accustomed to act in accordance
with directions or instructions of
the board of holding company.

17

As a result, the holding company
just cannot give any loan to such
subsidiary company, not even with
shareholders' approval. There is
no provision to do so with
Government approval also.
Earlier, the corresponding section
295 specifically exempted loans
from holding company to
subsidiary companies; so this
problem did not arise.
l Section 186of new law, a
As per

company can make investments
through maximum of 2 layers of
investment companies. Many
large companies, that have more
than 2 layers already, would not be
able to make any future
investments. This will seriously
affect their planned investments
and business.


l Section 372A restricted only
Earlier

inter corporate loans and deposits
beyond prescribed limits. Now,
under Section 186 of new law,
loans to any person are covered.
As a result, a Rs 1000 loan to an
employee would require following
compliances:
- passing a unanimous board
resolution.
- ensuring that the loan carries
interest at not less than
prescribed rates.
- making entry in a register, which
would be open to the inspection
of members.
- disclosing in annual financial
statement, full particulars of
loan, recipient, purpose etc.
One can just see the extent of
needless paper work and hassles
that would be created, without
serving any purpose. And failure of
compliance can lead to
imprisonment.
Related
l party is now defined to
include a subsidiary company also.
As per Section 188of new law, no
transactions above a specified
amount or by a company with
higher than prescribed capital, can
be entered into with a related
party, without a special resolution
of shareholders. However, no
related party can vote on such a
special resolution.

providing that in case of
transactions between holding
company and wholly owned
subsidiary, the special resolution
passed by holding company shall
be enough and no separate
resolution of subsidiary company
would be required. But still there
would be many cases where
resolution cannot be passed. For
example, in case of a transaction
between S1 and S2, both being
wholly owned subsidiaries of H,
who will vote?
H- the holding
company is not a party to
transaction and hence not
required to pass a special
resolution.S1 and S2 need to pass
special resolutions, but in both the
cases, H-being sole shareholdercannot vote being a related party
to both.
There could be more examples.
Take a case of H, the holding
company, having S as 75%
subsidiary. A- an associate
company, holds balance 25%
shares in S. Here also, in case of a
proposed transaction between H
and S, both H and A, being related
parties, cannot vote on the special
resolution of S,.

Tough Regime for Private
Companies
Many provisions in erstwhile law,
which were not applicable to private

In case of a transaction with a
wholly owned subsidiary,the
holding company would not be
able to vote. So, who would vote
on such a resolution? How would
the resolution be passed?
The draft rules attempt to contain
the fallout of this anomaly, by

18

companies, would now be applicable
to these companies as well. The
important ones are:
l a private company could just
Earlier

allot shares to any one by passing a
board resolution. Now, formalities
of 'private placement' would have
to be completed. This implies
issuing an "offer letter", setting out
such details as may be prescribed.
l in a Board meeting,
Earlier

interested directors could vote on
resolutions where directors were
interested.
This enabled
transactions with related parties usually family members or associate
firms. Now a director cannot vote
on such resolutions. This would
lead to a situation where many
items of business cannot
beconducted at Board level.
Normally in such situations,
shareholders'approval should be
obtained. However new provisions
prescribe that in certain types of
related party transactions, even in
a general meeting, related parties
cannot vote. How then, will many
transactions take place? There is no
provision even for doing this with
government approval!
l
Earlier

a private company could
commence business upon
incorporation. Now even a private
company would have to file
prescribed documents just like

public companies, before
commencement of business.
l a private company could
Earlier,

give loans to a director or related
parties. Now, a private company
cannot give loans to a director or
related parties -not even with
shareholders' approval. And there is
no provision to seek government
approval.
l companies could earlier give
Private

loans to or make investment in
other companies without
restriction. Now restrictions have
been imposed as applicable to
public companies.
l a private company was free
Earlier,

to have special provisions relating
to general meetings, including for
notice, explanatory statement,
quorum, proxies, poll etc. Now, it
will be governed by the same
provisions as apply to public
companies.

They would usually be related
parties and interested in many
transactions. Recognizing this fact,
legislation in most countries,
provides easy regime to facilitate
running of private companies. India
also had similar regime, which is
now sought to be changed. Given
that over 90 percent of companies
in the country are private, the new
law would make working difficult
for such companies. One wonders
whose interests are sought to be
protected?

Excessive Powers to
Government
The Constitution's scheme is that law
making body should be separate from
enforcing agency. Further, judiciary
should be separate. It is fraught with
danger to combine all powers in one
entity. This principle of separation of
powers is universally acclaimed.

l a private company was free
Earlier,

to have any kinds of capital, apart
from equity and preference share
capital. Now, this is no more
permitted.
l members of
Earlier,

a private
company could have voting rights
on shares in a proportion different
to the proportion of shareholding.
Now this is not allowed.

l
New provisions relating to insider

trading, are sought to be made
applicable to private companies
also.
The new law thus, attempts to paint
private and public companies with
same brush, without considering
the fact that most of the private
companies are family entities
wherein family members are
shareholders as well as directors.

19

The scheme of new law militates
against this cardinal principle.
Through extensive rule making power
given to government, law making and
enforcing has been combined in
Government hands. To add to this,
adjudication powers would be given
to government officials (which was
not provided under earlier law), who
would now act in judicial capacity also!

Independent Directors Increased Responsibilities
The criterion of independence under
the law is very stringent and states
that a person to be independent,
should not have had any pecuniary
transaction with the
company/associates/ promoters
during current year or preceding 2
years. No minimum threshold is
defined. Even the word 'material' is
not used. As a result, a small
transaction with the company or


associates, could result in the director
being non-independent.
Further, independent directors now
are in danger of:
l
class action suits which are in a way

being encouraged by law
l
more stringent penalties
l of imprisonment even for
threat

minor and technical offences
Simultaneously, their remuneration is
being restricted with ESOPs being
stopped!

Remuneration to Managerial
Personnel
Earlier, as a part of liberalizing, the
Government through a circular,
allowed professional directors, who
are unrelated to promoters and not
having any stake in the company, to be
paid any amount of remuneration,
even in cases of low profits or no
profits. This provision is not included
in the new Act. As a result, all such
cases will go to Central Government
for approval.

Draconian Punishments
Excessive and severe punishments

are being proposed. Earlier law
provided different punishments for
different violations. Technical
violations like late filing, nondisclosure of directors' interest, etc.
were visited by minor fines. The new
law provides at many places, same
severe punishments for substantive
as well as technical offences. For
example:
l Section 299 of the Act
Earlier

provided for optional annual
disclosure by a director of his
interest in other companies, firms
etc. in Form 24AA. Non submission
of such annual disclosure had no
repercussion. However, it was
mandatory to disclose his interest
at the time of actual contract, if not
already done earlier and violation
carried a fine upto Rs 50,000.
Under the new law, Section 184
requires disclosure annually and
also at the time of actual contract.
Violation of any one is a ground for
imprisonment. Thus, a simple
omission of a company's name in
annual disclosure, even where no
actual transaction with that
company takes place,may land a
director in jail.

20

l under section 394, in a
Earlier

scheme of arrangement, non filing
of court orders with Registrar
within 30 days could invite a fine of
Rs. 500. Now, under Section 232 of
new law, it could be punishment
upto one year and/ or fine between
Rs 1 lac and Rs 3 lac.
Unde
lr S e c t i o n 3 7 2 A o f o l d
Actrelated to inter corporate loans
and investments, punishment for
non- maintenance of register was
Rs 5000 plus further daily fine in
case of a continuing offence. Under
the corresponding new Section 186,
for any violation, including nonentry in the register, the officer in
default shall be punishable with
'imprisonment plus fine' (it is not
even 'imprisonment or fine')!

Conclusion
It is clear that the law is poorly drafted
and creates huge compliance issues
for large companies. Private
companies are equally hit with
increased paper work and regulation.
Auditors are genuinely worried about
the potential liabilities and the
looming threat of class action suits.
Independent directors are concerned
about increasing responsibilities (and
decreasing remuneration, as no
ESOPs would be allowed to them).
The only persons happy with it would
be government officials - who would
wield more power now than ever,
and lawyers - who would be called
upon to give interpretations or
represent the companies or officials in
prosecutions against them! How
should then one describe such a law?
Is it a facilitator of business or……..?

CII Submits detailed industry views on the
1st and 2nd Tranches of Draft Rules under
Companies Act, 2013

CII has submitted detailed
recommendations on the 1st and 2nd
Tranches of draft rules prepared
under various provisions of the
Companies Act, 2013. The Act relies
heavily on subordinate legislation for
the implementation of these sections.

Chapter VI - Registration of Charges
Chapter VIII - Declaration and
Payment of Dividend
Chapter IX - Accounts of Companies
Chapter X - Audit and Auditors

First Tranche:

Chapter XI - Appointment and
Qualification of Directors

The first tranche of Rules covered the
following 16 chapters:

Chapter XII - Meeting of Board and its
Powers

Chapter I - Preliminary

Chapter XVI - Prevention of
Oppression and Mismanagement

Chapter II - Incorporation of Company
and Matters Incidental Thereto

21

Chapter XVIII - Removal of Name of
Companies from the Register of
Companies
Chapter XIX - Revival and
Rehabilitation of Sick Companies
Chapter XXII - Companies
Incorporated Outside India
Chapter XXIII - Government
Companies
Chapter XXIV - Registration Offices
and Fees
Chapter XXVI - Nidhi


Chapter XXIX - Miscellaneous
Some highlights of CII
recommendations are as follows:
lAct introduces many new
The

concepts such as establishment of
vigil mechanism, appointment of
internal auditor, performance
evaluation, appointment of key
managerial personnel etc. Time
must be given for the concepts to
evolve and be absorbed.
l finalizing the thresholds for
While

determining the applicability of
various provisions, ground-level
challenges should be recognized
and due consideration given to the
same. A staggered approach
should be adopted in introduction,
with larger companies being
asked to comply first.
l is a need for ensuring
There

balance between ownership and
management to foster
entrepreneurship and trade. India
has to be seen as a jurisdiction with
progressive regulations impediments and hindrances for
corporates must be removed.
l
It is imperative to ensure that rules

enable unambiguous
interpretation ultimately ensuring
minimal litigation for future.

Senior
l management and persons

There
l is a need to harmonize the

one level below executive
directors need to be excluded
from the definition of Related
Party

requirements as there are
fundamental differences in the
approach of SEBI and MCA with
regard to transfer of shares to the
Suspense Account. If the shares
are already lying in the demat
account of the shareholder, the
said shares should not be required
to be transferred to IEPF even if
the dividend in respect of those
shares would have been
transferred on completion of
seven years from the date of
declaration and the amount of
dividend remaining unpaid.

There
l is a need to modify Rules to
provide for 'dependant' relatives
and to narrow down the list of
'Relatives' to dependent. The
definition should include only
immediate financially dependent
relatives meaning financially
dependent parents or children
who may be expected to
influence, or be influenced by, that
individual in his/her dealings with
the entity concerned
In the
l definition of total Share
Capital which provides for
aggregate of equity and
preference share capital, only that
part of preference share capital
which is convertible into equity, as
per the terms of issuance of the
preference capital, should be
included. A transition period till
31st March, 2015 for adoption of
the new definition should be
given.
Juri
ls t i c p e r s o n s ( b o d i e s
corporate) should also be allowed
to form One Person Company
without any limitations.

Rule
l s should provide for
consolidated accounts only at the
group company level and not for
each intermediate holding
company level except where such
intermediate holding companies
are listed companies.
For disclosure of related party
l
transactions, it may be clarified,
t h a t
o n l y
t h o s e
transactions/contracts/arrangem
ents which are not entered in the
ordinary course of business, or are
not on an arm's length basis are
required to be reported in the
Board's report.
Mandatory internal audits should
l
be made applicable to all
companies meeting the threshold
criteria instead of only "public
companies", considering
involvement of borrowed funds.
The thresholds need to be
increased substantially.

l
Private companies which are

neither subsidiaries of listed
companies nor have substantial
borrowings from banks or
financial institutions should be
exempted from certain provisions
of the Act, e.g. rotation of
auditors, provisions relating to
loans and investments, sharing of
unpublished price sensitive
information, etc. Such companies
should not be treated at par with
other public interest entities.

The
l requirement

of having
independent director (in the CSR
Committee) for companies which
are otherwise not required to have
independent directors in terms of
section 149 read with draft Rules
(relating to appointment of
Independent Directors) - may be
relaxed. Requirement of having at

22

least 3 directors in the CSR
Committee may also be
considered to be relaxed for
private companies which are
allowed to have only 2 Directors

debt) should be exempted from
this requirement. Subsidiaries
with more than 90% shares held by
a single company; materially
important unlisted subsidiaries;
closely-held unlisted companies
and companies not having fixed
deposits or borrowings from
public like debentures or
optionally convertible
instruments should also be
exempt

l
Corporates should be allowed

adequate legroom to comply with
the CSR provision in a selfresponsible manner. The CSR
Policy should be broad based and
specific provisions about project/
programmes should not be part of
operating rules.

l rules prescribe public
The

l
Accounting standards prescribing

accounting treatment of the CSR
expenditure must be formulated
to obviate ambiguity surrounding
the treatment of CSR expenditure
in various circumstances. The term
"Net Profit" should be defined as
post tax profit.
l
A clarification should be provided

to the effect that contribution to
the corpus fund of the Trusts or
Section 8 Companies, or Societies
or Foundations, through which a
company may choose to carry out
its CSR activities would be eligible
to be counted towards company's
2% spend on CSR in that year.
l
A clarification / carve-out may be

considered to be provided
exempting transactions with
trusts or Section 8 Companies, or
Societies or Foundations from the
provisions of related party
transactions
l
Rotation of auditors may be

considered to be made effective
prospectively and tenure of
auditors should be considered
from the date of implementation
of the new Act. Period for which
the auditor has held office prior to
the notification of secion 139 must
be disregarded from the
calculations of 5/10 years at the
time of commencement of Act.

Only India-listed companies
should be subject to firm rotation
and private companies and public
companies which do not have
substantial public funding must be
exempt from the provision
l
Thresholds for appointment of a

woman director may be changed
to "every listed company and
every other public company"
having a paid up share capital of Rs
500 Crore or more or turnover of
Rs.1000 Crore or more.
linstitution of independent
The

directors must be given time to
evolve and till such time, the
provision should be made
applicable very selectively. Limits
may be revised as follows:
o paid up share capital of Rs. 500
crores or more;
o turnover of Rs. 1000 cores or
more;
o loans, borrowings, deposits
exceeding of Rs. 500 crores.
Wholly-owned subsidiaries of
companies having no external
funding (in the form of equity or

23

companies having paid-up share
capital of Rs. 100 crores or more
OR having aggregate outstanding
loans or borrowings or
debentures or deposits exceeding
Rs. 200 crores or more shall be
required to constitute an Audit
Committee and a Nomination and
Remuneration Committee of the
Board. Thresholds, being too low,
may be revised
lAct indicates these related
The

party transactions rules applies to
all companies. Private companies
should be excluded and the
provision should be applicable to
only public companies
l
For appointment to office or place

of profit, limit on remuneration
should be increased from Rs. 1 Lac
per month to Rs. 10 Lac per month
l
Legislation should balance

interests of multiple stakeholders
and shareholders' equity must
apply to both big and small
shareholders to avoid 'reverse
oppression' i.e. oppression of the
majority. A higher threshold, in
terms of number of shareholders,
be set out for class action suits.

Second Tranche:
The second tranche covers 9 chapters
which were hosted on 20 September
2013. A similar 30 day window has also


special resolution (or in the
relevant explanatory statement)
to be passed by the shareholders
for approving issue of preference
shares, without having to amend
the Articles of Association each
time such shares are issued. The
requirement of 'Shareholders'
approval' should be deleted unless
preference shares are convertible
into equity.
l
Rule restricts the directors, KMP's

been provided for these Rules for
industry and other stakeholders to
submit their views.
Chapter III - Prospectus And Allotment
Of Securities
Chapter IV - Share Capital And
Debentures
Chapter VII - Management and
Administration
Chapter XIII - Appointment And
Remuneration Of Managerial
Personnel
Chapter XV
- Compromises,
Arrangement And Amalgamations
Chapter XVII - Registered Valuers
Chapter XXI - PART I. - Companies
authorized to register under this Act
Chapter XXVIII: (Rules in respect of
Clause 442: Mediation And
Conciliation Panel)
National Company Law Appellate
Tribunal Rules, 2013.
Some highlights of the CII
recommendations are as follows:
l on Chapter III dealing with
Rules

Prospectus and Allotment of
Securities should be harmonized
with the SEBI ICDR Regulations

It should be specified that
l
shareholders' approval for private
placement of securities will be
required only for securities that are
convertible into equity shares at a
future date and not for nonconvertible securities
The restriction on the number of
l
private placements by a company
in a financial year should be
removed
Private
l companies must be given
exemption from complying with
the various requirements set out
for issuance of equity shares with
differential rights.
The capping of total sweat equity
l
shares in a company at 25% of the
total paid up equity capital of the
company may be removed or at
least permitted with the
government approval.
Companies should be allowed to
l
issue preference shares without
any conditions particularly when
issue is made to redeem the
existing shares. Also the Rule
should provide some flexibility to
companies, inasmuch as
companies should be permitted to
specify the terms and conditions of
issue of preference shares in the

24

and Promoters and their relatives
of the holding, subsidiary or
associate of the Company to be
trustee of the trust to hold shares
for the benefits of the employees.
The provision will defeat the intent
of the law. The rules may restrict
only the Promoters and Directors
to be trustee in such Trust but
should permit other employees to
be appointed as trustees of such
trust.
l
For ESOP, the provision regarding

purchase of shares by employees /
trustees to be made only through
stock exchange should be deleted
l should not be any restriction
There

on maximum tenure for
debentures for any class of
companies i.e. whether companies
are engaged in infrastructure
projects or not. The tenure of the
debentures should be left upon the
mutual understanding of the
borrowing companies and the
lenders. Alternatively, at least
concept of renewal should be
provided
l providing for return of
While

changes in shareholding position
of promoters and top ten
shareholders to be submitted to
ROC, a 'threshold limit' should be
stipulated, upon crossing of which,
either in one or more tranches, the
requirement of filing such Return

should be mandated. This would
also be in line with the approach
adopted under the SEBI
(Substantial Acquisition of Shares
and Takeovers) Regulations, 2011.
l through electronic means
Voting

should be restricted to listed
company only to begin with.
ltaining of records in
Main

electronic form (ERP) should be
optional and shall not be made
compulsory
l
Per the Rules, there has to be

disclosure of particulars of
employee drawing remuneration
in excess of INR 60 lacs. The
disclosure should be limited to the
employees drawing remuneration
higher than the Directors of the
Company or the employee holding
certain percentage of shares in the
Company / Holding / Associate etc.
Alternatively, the amount may be
revised to INR 1 crore.
lA p p o i n t m e n t o f K e y
For

Managerial Personnel, the
proposed paid-up capital criteria of
Rs. 5 crores should be substantially
enhanced.
ln
Whe

the company has
demonstrated that CDR has been
approved by 75% of the secured
creditors, it should be clarified that
no separate approval of creditors
would be required as part of the
consent to the scheme under court
convened meetings.

l
Pending matters before the

Appellate Authority for Industrial
and Financial Reconstruction
which are at final stage (i.e. for

which only final order is pending),
should get transferred to the NCLT
for final sanction/order instead of
starting the proceedings afresh
l of Section 233(1), the rules
In terms

have to prescribe such class or
classes of companies which can
undertake a merger or an
amalgamation pursuant to the
provisions of Section 233.
However, the rules have not
prescribed any such class of
companies. Accordingly, the rules
should provide for such class or
classes of companies. Further, it is
advised to include 'one person
company', as one such class, which
may take benefit of provisions of
Section 233

25

l should be added in relation
A rule

to effective date of the scheme,
and it should state that the scheme
will be given effect to from the date
on which the Tribunal's order is
filed with the Registrar.
New rule should be included to the
l
effect that except as required
under the Act, the Tribunal may
pass necessary orders which can
act as Single Window Clearance for
any specific requirements of the
Act wherever any treatment has
been provided under the scheme
of compromise and arrangement which principle have been applied
and confirmed by various courts in
India.

ADVERTISEMENT FOR CII'S GLOBAL REGULATORY UPDATE
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9th CORPORATE GOVERNANCE SUMMIT 2013
20 December, 2013: Mumbai
Each year, CII Corporate Governance Summit brings together industry members representing
various sectors to brainstorm on the global and domestic governance landscape.
Though Governance has largely been portrayed as an issue of compliance; corporates are
increasingly viewing good governance as good business. Companies that take a strategic approach
to the challenge of complying with the new corporate governance requirements can create
opportunities to strengthen their internal processes and enhance their business.
This year too, the Summit would deliberate on how companies can use compliance efforts to build
greater business value, the top global governance trends being adopted worldwide and their
suitability and adaptability in the domestic context.
Against the backdrop of the Companies Act, 2013; Industry experts will also deliberate on strategies
that would be truly effective in improving corporate governance practices rather than confining
them to the compliance checklist.

For further queries:
Prabhat Negi
Corporate Governance & Regulatory Affairs Department
Confederation of Indian Industry
The Mantosh Sondhi Centre
23 Institutional Area, Lodi Road, New Delhi - 110 003
Tel: 011-41506492
Fax: 011-24615693
Email: prabhat.negi@cii.in

14
26


The Confederation of Indian Industry (CII) works to create and sustain an environment conducive to
the development of India, partnering industry, Government, and civil society, through advisory and
consultative processes.
CII is a non-government, not-for-profit, industry-led and industry-managed organization, playing a
proactive role in India's development process. Founded over 118 years ago, India's premier business
association has over 7100 members, from the private as well as public sectors, including SMEs and
MNCs, and an indirect membership of over 90,000 enterprises from around 257 national and regional
sectoral industry bodies.
CII charts change by working closely with Government on policy issues, interfacing with thought
leaders, and enhancing efficiency, competitiveness and business opportunities for industry through
a range of specialized services and strategic global linkages. It also provides a platform for
consensus-building and networking on key issues.
Extending its agenda beyond business, CII assists industry to identify and execute corporate
citizenship programmes. Partnerships with civil society organizations carry forward corporate
initiatives for integrated and inclusive development across diverse domains including affirmative
action, healthcare, education, livelihood, diversity management, skill development, empowerment
of women, and water, to name a few.
The CII Theme for 2013-14 is Accelerating Economic Growth through Innovation, Transformation,
Inclusion and Governance. Towards this, CII advocacy will accord top priority to stepping up the
growth trajectory of the nation, while retaining a strong focus on accountability, transparency and
measurement in the corporate and social eco-system, building a knowledge economy, and broadbasing development to help deliver the fruits of progress to all.
With 63 offices, including 10 Centres of Excellence, in India, and 7 overseas offices in Australia, China,
Egypt, France, Singapore, UK, and USA, as well as institutional partnerships with 224 counterpart
organizations in 90 countries, CII serves as a reference point for Indian industry and the international
business community.

The Mantosh Sondhi Centre
23, Institutional Area, Lodi Road, New Delhi – 110 003 (India)
T: 91 11 45771000 / 24629994-7 F: 91 11 24626149
E: info@cii.in W: www.cii.in

Reach us via our Membership Helpline: 00-91-11-435 46244 / 00-91-99104 46244
CII Helpline Toll free No: 1800-103-1244

CII Global Regulatory Update, October 2013

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