Deposits are a means through which companies generally acquire funding. When the Directors are not in the verge to dilute their stake, they may opt for deposits from public at large. Section 73 to 76 of the Companies Act 2013 read with Rules made under Chapter V of the Companies Act, 2013 regulate the invitation and acceptance of deposits.
As companies Act 2013, “deposit” includes any receipt of money by way of deposit or loan or in any other form, by a company, but does not include such categories of amount as may be prescribed under Rule 2(c) of the Companies (Acceptance of Deposit) Rules, 2014.
They include Any amount,
- Received from the Central Government or a State Government, or any such source where the repayment will be guaranteed by the State or the Centre.
- Received from foreign banks or international banks, foreign governments, multilateral financial institutions subject to the provisions of FEMA, 1999.
- Received by way of financial assistance or loan from Public Financial Institutions notified by the Central Government or Scheduled Banks or Insurance Companies.
- Received as a loan or facility from any banking company or the State Bank of India or any of its subsidiaries.
- Received by a company from any other company.
- Received against the issue of commercial paper or any other instruments issued in accordance with the RBI guidelines.
- Received against an offer made towards the subscription of securities, by way of share application money or advance towards allotment. The money shall be considered as a deposit provided:- a) The company fails to allot such securities within 60 days. b) And after the expiry of the aforesaid 60 days, the money that is received has still not been refunded in the next 15 days.
- Received from an employee of the company not exceeding his annual salary in the nature of non-interest bearing security deposit.
- Received amount that is non-interest bearing in nature or held in trust.
- Received from a director who provides a declaration stating that the amount is not given out of borrowings or a loan from any person.
- Raised by way of issue of debentures or bonds secured by a first charge or any other way.
- Brought in by the promoters as a loan, unsecured in nature, in pursuance with the stipulation of bank or lending financial institution.
- Accepted by Nidhi Company as per the provisions of Sec 406 of the Act.
- Received in the course/for the purpose of business as an advance:- a) Received in connection with consideration for property under an agreement. b) Received for the supply of capital goods under long term projects. c) For the supply of goods/provision of services as long as the advance is appropriated against the supply of goods/provision of services within 365 days of accepting the same.
- Received as a security deposit for the performance of a contract.
Non-Applicability
Companies may accept deposits from both, members and the general public as per the provisions of the Companies Act, 2013. Provisions of Section 73-76 of the Companies Act, 2013 shall not apply to :-
1. Banking Company
2. Non-Banking Financial Company as per RBI Act 1934
3. Any other company notified by the Central Government in consultation with the RBI.
Acceptance of Deposits by Private Companies
The Companies Act, 2013 prohibits private limited Companies to accept deposits from public at large. But the Private Company can accept deposits from its Directors, Members and relatives of Directors after fulfilling the conditions as prescribed in the deposit rules.
The Companies (Acceptance of Deposit Rules) states that:-
No company referred to in sub-section (2) of section 73 shall accept or renew any deposit from its members, if the amount of such deposits together with the amount of other deposits outstanding as on the date of acceptance or renewal of such deposits exceeds thirty five per cent of the aggregate of the Paid-up share capital, free Reserves and securities premium account of the company
Provided further that the maximum limit in respect of deposits to be accepted from members shall not apply to following classes of private companies, namely:-
(i) a private company which is a start-up, for ten years from the date of its incorporation;
(ii) a private company which fulfils all of the following conditions, namely:-
(a) which is not an associate or a subsidiary company of any other company;
(b) the borrowings of such a company from banks or financial institutions or anybody corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is less ; and
(c) such a company has not defaulted in the repayment of such borrowings subsisting at the time of accepting deposits under section 73:
Provided also that all the companies accepting deposits shall file the details of monies so accepted to the Registrar in Form DPT-3.]
Filing of Form DPT-3
Every Company (Whether, Small, Non Small, Private, Public, OPC etc.) to which deposit rules apply, shall on or before the 30th day of June, of every year, file with the Registrar, a return in Form DPT-3 mentioning the details of deposit.
As mentioned above, the private companies who have accepted monies which are not considered as deposits shall be required to file “Particulars of the transactions not considered as deposit” as per the Companies Act, 2013 and rules made thereunder in Form DPT-3.
The author can be contacted at csprernahunagund@gmail.com
******
Disclaimer: This article is written merely for informational purposes and it should not be taken as a legal advice. The readers are advised to consult competent professionals before acting on the basis of any information provided here.
Author Bio
