Updates of MCA, SEBI, RBI & IBBI for the month of January 2021

Article contains updated with respect to Notifications, Circulars, Rules, Regulations issued in the Month of January 2021 by Ministry of Corporate Affairs (MCA), Securities Exchange Board of India, Updates of the Reserve Bank of India (RBI), Insolvency and Bankruptcy Board of India (IBBI) and also includes Recent Corporate News. Article attempts to analyses Notifications, Circulars, Rules, Regulations issued in the Month of January 2021 in simple Language for understanding of Readers.

Updates of the Ministry of Corporate Affairs (MCA):

⇒ Rules

♦ The Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021:

• The Ministry of Corporate Affairs (MCA) has vide notification dated 22^nd January, 2021 notified the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021.

The Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021 With effect from 22nd January, 2021

https://taxguru.in/company-law/companies-csr-policy-amen.html

 “Legitimate profit earning can not be devoid of social responsibility, and that companies can not get away without meeting corporate social responsibility requirements– Ms. Nirmala Sitharaman

(Minister of Finance)

With the Corporate Social Responsibility (CSR), Companies are able to develop their own social investment strategies and decide where to invest and implement programs, but the government has recommended particular areas of need, including eradicating hunger and poverty, maternal and child health, promoting gender equality and environmental sustainability etc. Companies should give preference to the local areas where they operate. If a company does not conduct its own Corporate Social Responsibility (CSR), it can give the required amount to the government’s socio-economic welfare programs such as the Prime Minister’s National Relief Fund etc.

When the provision for Corporate Social Responsibility (CSR) was introduced by Companies Act 2013, It was being said by the Government that the provision for Corporate Social Responsibility (CSR) will follow what is globally known as “Comply or Explain (COREX)”, Which means the Companies will not be mandated to spend on Corporate Social Responsibility (CSR) and the Board Report will only give reasons for not spending.

The Ministry of Corporate Affairs (MCA) has amended the Companies (Corporate Social Responsibility Policy) Rules, 2014 through notification dated January 22, 2021. It shall be noted that the MCA has brought major changes in the Companies (Corporate Social Responsibility) Rules, 2014 (‘the Rules’) through the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021.

The Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021 has amended the Rules majorly with respect to following facets;

• Following is the detailed analysis of the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021;

Rule 2: Definitions

• It shall be noted that the following amendments have been made through the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021; 

√ “Administrative overheads” means the expenses incurred by the company for ‘general management and administration’ of Corporate Social Responsibility functions in the company but shall not include the expenses directly incurred for the designing, implementation, monitoring, and evaluation of a particular Corporate Social Responsibility project or programme.

In the above definition general management and administration expenditure excludes direct expenses towards particular CSR Project or Programme.

√  “CSR Policy” means a statement containing the approach and direction given by the board of a company, taking into account the recommendations of its CSR Committee, and includes guiding principles for selection, implementation and monitoring of activities as well as formulation of the annual action plan.

In the above definition, a statement shall contain the approach and direction with relation to selection, implementation and monitoring of CSR Project or Programme.

√ “International Organization” means an organization notified by the Central Government as an international organization under section 3 of the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), to which the provisions of the Schedule to the said Act apply.

The Government has allowed the International Organization for designing, monitoring and evaluation of the CSR Project or Programme.

√  “Ongoing Project” means a multi-year project undertaken by a Company in fulfilment of its CSR obligation having timelines not exceeding three years excluding the financial year in which it was commenced, and shall include such project that was initially not approved as a multi-year project but whose duration has been extended beyond one year by the board based on reasonable justification.

As per definition, Ongoing project = Project already commenced + multi-year project whose duration is not less than one year but not exceeding 3 years

√ “Public Authority” means ‘Public Authority’ as defined in clause (h) of section 2 of the Right to Information Act, 2005.

• The Board shall ensure that the CSR activities are undertaken by the company itself or through –

√  Section 8 Company;

√ Registered Public Trust;

√ Registered Society registered u/s 12A & 80G of Income Tax Act, 1961; or

√ Company with established track record of atleast 3 years.

• It shall be noted that the eligible intermediaries through which the company shall undertake the CSR Project or Programme will require to register itself with the Central Government by filing the Form CSR-1 electronically with effect from April 01, 2021.
• Further on filing the Form CSR-1 with the Central Government, a unique CSR Registration Number will be generated by the system automatically.
• International Organization as defined in Rule 2 of the Rule can also be engaged for designing, monitoring and evaluation of the CSR projects or programmes as per its CSR policy as well as for capacity building of their own personnel for CSR.
• Further, it is the responsibility of the Board of the Company to monitor the implementation of ongoing projects and to ensure that the funds are utilized for approved purpose and shall be certified by the Chief Financial Officer (CFO) or Person in charge of finance.
• The Board shall have a power to make modifications in such projects to ensure smooth implementation of the project within permissible time limit.

Rule 5: CSR Committees

• It shall be noted that the CSR Committee shall formulate and recommend to the Board, an annual action plan in pursuance of its CSR policy, which shall include the following, namely:

√ the list of CSR projects or programmes that are approved to be undertaken in areas or subjects specified in Schedule VII of the Act;

√  the manner of execution of such projects or programmes as specified in sub-rule (1) of Rule 4;

√ the modalities of utilization of funds and implementation schedules for the projects or programmes;

√ monitoring and reporting mechanism for the projects or programmes; and

√ details of need and impact assessment, if any, for the projects undertaken by the company

• Board may alter such plan at any time during the financial year, as per the recommendation of its CSR Committee. 

Rule 7: CSR Expenditure

• The board shall ensure that the administrative overheads shall not exceed 5% of total CSR expenditure of the company for the financial year.
• Any surplus arising out of CSR activities shall be ploughed back into the same project or shall be transferred to the Unspent CSR Account and spent in pursuance of CSR policy and annual action plan of the company or transfer such surplus amount to a Fund specified in Schedule VII, within a period of 6 months of the expiry of the financial year.
• Any excess amount may be set off against the requirement to spend up to immediate succeeding 3 financial years subject to the conditions that;

√ the excess amount available for set off shall not include the surplus arising out of the CSR activities, if any, in pursuance of sub-rule (2) of this rule;

√ the Board of the company shall pass a resolution to that effect.

• Provisions with relation to acquisition of Capital Assets:

• Any capital asset created by a company prior to the commencement of the Companies (Corporate Social Responsibility Policy) Amendment Rules, 2021, shall within a period of 180 days from such commencement comply with the requirement of this rule, which may be extended by a further period of not more than 90 days with the approval of the Board based on reasonable justification.

Amendment to Rule 8: CSR Reporting

• Companies with average CSR obligation of 10 Crore or more in the 3 immediately preceding financial years shall undertake impact assessment through an independent agency for projects of 1 crore or more which have been completed not less than 1 year before undertaking the impact study.
• The impact assessment reports shall be placed before the Board and shall be annexed to the annual report on CSR.

Amendment to Rule 9: Website Disclosure   

• The Board of Directors of the Company shall mandatorily disclose the composition of the CSR Committee, and CSR Policy and Projects approved by the Board on their website, if any, for public access.

Amendment to Rule 10: Transfer of unspent CSR 

• Until a fund is specified in Schedule VII for the purposes of sub-section (5) and(6) of section 135 of the Act, the unspent CSR amount, if any, shall be transferred by the company to any fund included in schedule VII of the Act.
• New format inserted for disclosure of ‘Annual Report on CSR activities’ to be included in the Board’s Report

♦ The Companies (Incorporation) Amendment Rules, 2021:

The Ministry of Corporate Affairs (MCA) vide its notification dated 25^th January 2021 amended few provisions of the Companies (Incorporation) Rules, 2014.

Companies (Incorporation) Amendment Rules, 2021

With effect from 25^th January, 2021

Link: https://taxguru.in/company-law/companies-incorporation-fourth-amendment-rules-2019.html

• It shall be noted that the said notification amended the Rule 41 of the Companies (Incorporation) Rules, 2014 which is related to Application under Section 14 for conversion of Public Company into Private Company.
• As per the notification, where an objection is received or Regional Director on examining the application has specific objection under the provisions of the Companies Act, 2013, the same shall be recorded in writing and the Regional Director shall hold a hearing or hearings within a period of 30 days as required and direct the company to file an affidavit to record the consensus reached at the hearing, upon executing which, the Regional Director shall pass an order either approving or rejecting the application along with the reason within 30 days from the date of hearing.
• In case no consensus is received, the Regional Director may approve the conversion if he is satisfied having regard to all the circumstances of the case, that the conversion would not be against the interests of the company or is not being made with a view to contravene or to avoid complying with the provisions of the Companies Act, 2013, with reasons to be recorded in writing.
• However, it shall be noted that the conversion shall not be allowed if any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Companies Act, 2013.

⇒ Notifications

♦ Commencement Notification dated 22^nd January, 2021:

The Ministry of Corporate Affairs (MCA) notified that the provisions of the Companies (Amendment) Act, 2019 which will be enforced from January 22, 2021

Commencement Notification dated 22^nd January, 2021

With effect from 22^nd January, 2021

Link: https://taxguru.in/company-law/amendment-section-135-companies-act-2013-wef-22-01-2021.html

• It shall be noted that the Section 21 of the Companies (Amendment) Act, 2019 sought to amend the Section 135 of the Companies Act, 2013 which is related to Corporate Social Responsibility.
• The provisions of the Companies (Amendment) Act, 2019 introduced the penal provisions for non-compliance with the provisions of Section 135 of the Companies Act, 2013 relating to the reporting utilization and transfer of the unspent CSR funding amount.
• It shall be noted that the company which are found to be non-compliant would be punishable with fine which shall not be less than Rs.50,000/- but which may extend to Rs.25,00,000/- and every officer of the company found to be in default shall be punishable with imprisonment for a term which extend to 3 years or with fine which shall not be less than Rs.50,000/- but which may extend to Rs.5,00,000 or with both.
• It is important to note that the Companies (Amendment) Act, 2019 now ensures stricter compliance for such non-compliance resulting in payment of fine by the company and potential risk of imprisonment of the officers found to be in default.

♦ Commencement Notification dated 22^nd January, 2021:

The Ministry of Corporate Affairs (MCA) notified that the provisions of the Companies (Amendment) Act, 2020 which will be enforced from January 22, 2021.

Commencement Notification dated 22^nd January, 2021

With effect from 22^nd January, 2021

Link: https://taxguru.in/company-law/mca-notifies-amendment-companies-act-2013-wef-22-01-2021.html

• Following is the gist of the enforced provisions of the Companies (Amendment) Act, 2020;

⇒ Circulars

♦ Clarification on spending of CSR funds for Awareness and public outreach on COVID-19 vaccination programme :

Circular on spending of CSR funds for Awareness and public outreach on COVID-19 vaccination programme

With effect from 13^th January, 2021

Link: https://taxguru.in/company-law/spending-csr-covid-19-vaccination-public-outreach-valid-csr-activity.html

• The Ministry of Corporate Affairs (MCA) released a circular on 13^th January, 2021, regarding spending of CSR Funds for awareness and public outreach on COVID-19 vaccination programme.
• The Ministry of Corporate Affairs (MCA) clarified that spending of CSR funds for carrying out awareness campaigns on COVID-19 Vaccination programme is an eligible CSR activity under item no. (i), (ii) and (xii) of Schedule VII of the Companies Act, 2013 relating to promotion of health care, including preventive health care and sanitization, promoting education and disaster management respectively.

♦ Clarification on holding of annual general meeting (AGM) through video conferencing (VC) or other audio visual means (OAVM):

Circular on holding of annual general meeting (AGM) through video conferencing (VC) or other audio visual means (OAVM)

With effect from 13^th January, 2021

Link: https://taxguru.in/company-law/companies-process-agm-date-extension-face-legal-action-mca.html

• The Ministry of Corporate Affairs (MCA) in continuation of Circular No. 20/2020 dated 5^th May, 2020 and after due examination, the MCA has allowed companies whose AGMs were due to be held in the year 2020 or become due in the year 2021, to conduct their AGMs on or before 31^st December, 2021 in accordance with the requirements provided in paragraphs 3 and 4 of General Circular No. 20/2020.
• It shall be noted that this Circular shall not be construed as conferring any extension of time for holding of AGMs by the Companies under the Companies Act, 2013.
• Further, the Companies which have not adhered to the relevant timelines shall remain subject to legal action under the Companies Act, 2013.

♦ Scheme for condonation of delay for companies restored on the Register of Companies between 1^st December, 2020 and 31^st December, 2020 u/s 252 of the Companies Act, 2013:

• The Ministry of Corporate Affairs (MCA) has introduced the Companies Fresh Start Scheme, 2020 (CFSS-2020) through General Circular No. 12/2020 dated 30^th March, 2020 and through General Circular No. 30/ 2020 dated 28^th September, 2020 which was extended till 31^st December, 2020.
• It is important to note that such Companies Fresh Start Scheme, 2020 (CFSS-2020) is no longer applicable for various filings under the provisions of the Companies Act, 2013.
• However, the Ministry of Corporate Affairs (MCA) received various representations from the Stakeholders for relief as;

√  Some companies had preferred appeals under Section 252 of the Companies Act, 2013 against the striking off the names of the companies before the respective Benches of the National Company Law Tribunal (NCLT);

and

√ the orders by the National Company Law Tribunal (NCLT) were issued during the month of December, 2020.

• Due to this, such companies could not avail the benefit of filing under the Companies Fresh Start Scheme, 2020 (CFSS-2020) by 31^st December, 2020 and are liable to be levied additional fees upon filing overdue e-forms.
• In view of above, the Ministry of Corporate Affairs (MCA) vide General Circular No. 03/2021 dated 15^th January, 2021 introduced the Scheme namely, “Scheme for condonation for delay for companies restored on the Register of Companies between 1^st December, 2020 and 31^st December, 2020 under Section 252 of the Companies Act, 2013” for the purpose of condoning the delay in filing e-forms with the Registrar, insofar it related to charging of additional fees on account of delay in such filing.

Summary of the Scheme for condonation of delay under Section 252 of the Companies Act, 2013 [Restored between 1st December, 2020 and 31st December, 2020]

Scheme for condonation for delay for companies restored on the Register of Companies between 1^st December, 2020 and 31^st December, 2020 under Section 252 of the Companies Act, 2013 

Effective form 1^st February, 2021 to 31^st March, 2021 

Link: https://taxguru.in/company-law/new-mca-scheme-condonation-delay-certain-companies.html

>  Applicability:

• • The Scheme shall be applicable to the Companies which have received order for restoration of the name u/s 252 of the Companies Act, 2013 and was disposed of between 1^st December, 2020 to 31^st December 2020.

> Duration of the Scheme:

• • The Duration of the Scheme for filing any overdue e-forms by such companies shall be starting from 1^st February, 2021 to 31^st March, 2021.

> Forms for which the Scheme shall be applicable:

• • The Scheme shall be applicable for all e-forms except the following;

√ E-form SH-7: Increase in authorized capital;

√Any charge related documents (E-forms CHG-1, CHG-4, CHG-8 & CHG-9)

> Applicable fees:

• • Normal filing fees under the Companies (Registration Offices and Fees) Rules, 2014

> Important Point:

• • It shall be noted that the Scheme is not applicable for those companies whose applications were accepted during 1^st December, 2020 to 31^st December, 2020 but the National Company Law Tribunal (NCLT) had not issued the order during such period.

• • Only those companies are eligible for this scheme who have been issued order during 1^st December, 2020 to 31^st December, 2020.

♦ Relaxation on levy of additional fees in filing of e-forms AOC-4, AOC-4 (CFS), AOC-4 XBRL and AOC-4 Non-XBRL for the financial year ended on 31^st March, 2020 under the Companies Act, 2013:

• The Ministry of Corporate Affairs (MCA) has decided that no additional fees shall be levied upto 15^th February, 2021 for the filing of e-forms AOC-4, AOC-4 (CFS), AOC-4 XBRL and AOC-4 Non-XBRL for the financial year ended on 31^st March, 2020. 

• It shall be noted that during the said period, only normal fees shall be payable for the filing of the aforementioned e-forms.

Updates of the Securities Exchange Board of India Rules or Regulation (SEBI):

⇒ Circulars

♦ Norms for investment and disclosure by Mutual Funds in Exchange Traded Commodity Derivatives (“ETCDs”):

• The Securities Exchange Board of India vide Circulars No. SEBI/HO/IMD/DF2/CIR/P/2019/65 dated May 21, 2019 and No. SEBI/HO/IMD/DF2/CIR/P/2020/96 dated June 05, 2020 permitted mutual funds to participate in Exchange Traded Commodity Derivatives (ETCDs).
• It shall be noted that the following exposures shall not be considered in the cumulative gross exposure as specified in paragraph 4 (v) of SEBI Circulars No. SEBI/HO/IMD/DF2/CIR/P/2019/65 dated May 21, 2019:

√ Short position in Exchange Traded Commodity Derivatives (ETCDs) not exceeding the holding of the underlying goods received in physical settlement of ETCD contracts.

√ Short position in ETCDs not exceeding the long position in ETCDs on the same goods.

• It is further clarified that mutual funds shall not write options, or purchase instruments with embedded written options in goods or on commodity futures.

♦ Relaxation from compliance with certain provisions of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 due to the COVID -19 pandemic:

• SEBI vide Circular no. SEBI/HO/CFD/CMD1/CIR/P/2020/79 dated May 12, 2020 had inter-alia relaxed certain provisions of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR”) related to general meetings, pursuant to relaxations by the Ministry of Corporate Affairs (MCA).
• Subsequently, MCA vide Circular dated December 31, 2020 has further extended relaxations to companies to conduct their Extraordinary General Meeting (EGM) through Video Conferencing (VC) or through other audio-visual means (OAVM) (hereinafter referred to in this circular as ‘electronic mode’) upto June 30, 2021. Further, vide Circular dated January 13, 2021, MCA has also extended these relaxations to Annual General Meeting (AGMs) of companies due in the year 2021 (i.e. till December 31, 2021).
• Accordingly, SEBI has also provided the relaxation of sending physical copies of annual report to shareholders and requirement of proxy for general meetings held through electronic mode, are extended for listed entities, till December 31, 2021.

♦ Relaxations relating to procedural matters – Issues and Listing:

• SEBI vide Circular no. SEBI/HO/CFD/DIL2/CIR/P/2020/78 dated May 6, 2020 granted one time relaxations from strict enforcement of certain Regulations of SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018, pertaining to Rights Issue opening up to July 31, 2020.
• It shall be noted that the validity of these relaxations, as provided by Circular no. SEBI/HO/CFD/DIL2/CIR/P/2020/78 dated May 6, 2020, was further extended for Rights Issues opening up to December 31, 2020.

Updates of the Reserve Bank of India (RBI)

⇒ Notifications

♦ Introduction of Legal Entity Identifier for Large Value Transactions in Centralized Payment Systems:

• LEI has been introduced by the Reserve Bank in a phased manner for participants in the over the counter (OTC) derivative and non-derivative markets as also for large corporate borrowers.
• The Legal Entity Identifier (LEI) is a 20-digit number used to uniquely identify parties to financial transactions worldwide. It was conceived as a key measure to improve the quality and accuracy of financial data systems for better risk management post the Global Financial Crisis.
• It has now been decided to introduce the LEI system for all payment transactions of value ₹50 crore and above undertaken by entities (non-individuals) using Reserve Bank-run Centralised Payment Systems viz. Real Time Gross Settlement (RTGS) and National Electronic Funds Transfer (NEFT).
• In preparation for the wider introduction of LEI across all payment transactions, member banks should:

√ advise entities who undertake large value transactions (₹50 crore and above) to obtain LEI in time, if they do not already have one;

√ include remitter and beneficiary LEI information in RTGS and NEFT payment messages;

√ maintain records of all transactions of ₹50 crore and above through RTGS and / or NEFT.

Updates of the Insolvency and Bankruptcy Board of India (IBBI)

⇒ Circulars

♦ Retention of records relating to Corporate Insolvency Resolution Process:

• The Insolvency and Bankruptcy Code, 2016 (Code) read with various Regulations require an insolvency professional (IP) to maintain several records in relation to the assignments conducted by him under the Code. Keeping in view the importance of such records, clause (g) of sub-regulation (2) of regulation 7 of the IBBI (Insolvency Professionals) Regulations, 2016 (IP Regulations) provides that the registration granted to an IP shall be subject to the condition that he maintains records of all assignments undertaken by him under the Code for at least three years from the completion of such assignment. Clause 19 of the Code of Conduct appended to the First Schedule to the IP Regulations mandates an IP must provide all records as may be required by the Board or the insolvency professional agency (IPA) with which he is enrolled.
• Clause (a) of sub-regulation (4) of regulation 3 of the IBBI (Inspection and Investigation) Regulations, 2017 (Inspection Regulations) provides that the Board shall conduct inspection, inter alia, to ensure that the records are being maintained by an IP in the manner required under the relevant regulations. Sub-regulation (2) of regulations 4 and sub-regulation (2) of regulation 8 of the (Inspection Regulations) empower the Inspecting Authority / Investigating Authority to direct the IP to submit records, as may be required, and it is his duty to produce such records in his custody or control before such Authority.
• Regulation 39A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) mandates the interim resolution professional (IRP) and the resolution professional (RP) to preserve a physical as well as an electronic copy of the records relating to the corporate insolvency resolution process (CIRP) of the corporate debtor (CD), as per the record retention schedule as communicated by the Board in consultation with IPAs.
• Keeping with the above, the Board, in consultation with the IPAs and IPs, directs as under:

√ An IP shall preserve copies of records generated in electronic form for a minimum period of eight years, from the date of completion of the CIRP or the conclusion of any proceeding relating to CIRP, before the Adjudicating Authority (AA), Appellate Authority or Court, or any matter pending with the Board, whichever is later.

√ For records other than (i) above, the IP shall maintain copies for minimum period of three years in physical form, and for minimum period of eight years in electronic form, from the date of completion of the CIRP or the conclusion of any proceeding relating to CIRP, before the Adjudicating Authority (AA), Appellate Authority or Court, or any matter pending with the Board, whichever is later.

√ An IP shall preserve the records at a secure place and ensure that unauthorized persons do not have access to the same. For example, he may store copies of records in electronic form with an Information Utility. Notwithstanding the place and manner of storage, the IP shall be under obligation to produce records as may be required under the Code and the Regulations.

√ An IP shall preserve records relating to that period of a CIRP which he has handled, irrespective of the fact that he did not continue the assignment till its conclusion. For example, an IP served for three months as RP before he was replaced by another IP, who served till conclusion of the CIRP. The former shall preserve records relating to the first three months, and the latter shall preserve records relating to the balance period of the CIRP.

Recent Corporate News

Disclaimer:

The entire contents of this newsletter have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, I assume no responsibility therefore. Users of this information are expected to refer the relevant existing provisions of applicable laws. The user of this information agrees that the information is not professional advice and is subject to change without notice. I assume no responsibility for the consequences of use of such information. Further, in no event shall I be liable for any direct, indirect, special or incidental damage resulting from, arising out of or in connection with the use of the information.