FAQs on Companies (Significant Beneficial Owners) Rules, 2018

Short Summary:

The Ministry of Corporate Affairs (the ‘MCA’) vide its notification No. G.S.R. 561(E) dated the 13^th of June, 2018 introduced the Companies (Significant Beneficial Owners) Rules, 2018 (‘Rules’).

The author explained provisions of “Beneficial Owner (hereafter referred as “BO”) and Significant Beneficial Owner (hereafter referred as “SBO”)” in its earlier article- All about Companies (Significant Beneficial Owners) Rules, 2018.

In this Article author discussed some FAQ’s and hypothetical situations in relation to significant beneficial interest.

A. What is difference between Beneficial Owner (BO) and Significant Beneficial Owner (SBO)?

Beneficial Owner: Every individual, who acting alone or together, or through one or more persons or trust, including a trust and persons resident outside India, holds beneficial interests,  in shares of a company or the right to exercise, or the actual exercising of significant influence or control.

Significant Beneficial Owner: means beneficial owner holding ultimate beneficial interest not less than 10% and whose name not entered in the register of members of a Company.

Conclusion:  To check relation of BO and SBO, percentage of interest shall require checking.  Beneficial owner required to make disclosures as per Section 89 even if interest is more then or less than 10%. However, disclosures requirement of SBO shall occur only if interest is at least 10%.

B. What are the specific rights of Beneficial Owner?

• To exercise any or all the rights attached to the shares.
• Receive and participation in the dividends
• Receive and participation in other distribution in the shares (like: Right offer, bonus Shares)

C. What are the specific rights of Register Owner?

• Right to get notice of General Meetings
• Right to attend General Meeting
• Right to appoint Proxy
• Right to vote in the Meeting
• Right to demand poll

D. Whether Calculating 10% interest in the shares, whether Debentures or preference shares shall be include or exclude?

As per explanation to the SBO Rules, following shall be including in shares while calculating 10% interest in shares:

• Global Depository Receipts,
• Compulsorily Convertible Preference Shares or
• Compulsory convertible debentures.

E. Some Important Question -Significant Beneficial Owner (SBO)

E. COMPANY:

Holding Company (H) Subsidiary Company     (S)

Shareholder of H:  Mr. A  Mr. B  Mr. C

Situation I:

Company ‘H’ holding 50% shareholding of Company ‘S’. Mr. A, B and C hold 10%, 20% and 30% shares of Company ‘H’. Whether A, B, C have to file BEN-1 to Company‘s’?

Solution:  Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘S’	Holding of ‘S” in ‘H’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	10%	50%	(50*10%) =     5%	N
2.	B	20%	50%	(50*20%) =     10%	Y
3.	C	30%	50%	(50*30%) =     15%	Y

Situation II:

Company ‘H’ holding 30% shareholding of Company ‘S’. Mr. A, B and C hold 50%, 30% and 5% shares of Company ‘H’. Whether A, B, C have to file BEN-1 to Company‘s’?

Solution:  Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘S’	Holding of ‘S” in ‘H’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	50%	30%	(30*50%) =     15%	Y
2.	B	30%	30%	(30*30%) =     9%	N
3.	C	5%	30%	(30*5%) =       1.5%	N

Situation III:

Company ‘H’ holding 10% shareholding of Company ‘S’. Mr. A and B hold 99%, and 1% shares of Company ‘H’. Whether A and B have to file BEN-1 to Company‘s’?

Solution:  Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘S’	Holding of ‘S” in ‘H’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	10%	99%	(10*99%) =     9.9%	N
2.	B	10%	1%	(30*1%) =         .1%	N

NOTE:

As we discussed about the Company as Beneficial Interest same is situation with Partnership firms or Trust.

F. On the basis of above mentioned situation, what should be course of action on the part of Company H, Company S, Auditors / Directors of Company ‘S’

There are following course of actions for above mentioned parties:

I. Company S: As per section 90(5), A company shall give notice, in the prescribed manner, to any person (whether or not a member of the company) whom the company knows or has reasonable cause to believe

(a)  To be a significant beneficial owner of the company;

(b) To be having knowledge of the identity of a significant beneficial owner or another person likely to have such knowledge; or

(c) To have been a significant beneficial owner of the company at any time during the three years immediately preceding the date on which the notice is issued,

Rule 6: Company shall give notice seeking information in Form No.BEN-4.

STEP: 2- Action by Company

 The company shall,—

(a) Where that person fails to give the company the information required by the notice within the time specified therein; or

(b) Where the information given is not satisfactory, {Section 90(7) read with Rule 6 of SBO Rules}

The Company shall apply to Tribunal within 15 days of the expiry of the period specified in Notice.

Notice for an order directing that the shares in question be subject to restrictions with regard to transfer of interest, suspension of all rights attached to the shares and such other matters as may be prescribed.

II. Auditor/ Person who is signing MGT-7 of Company ‘S’:

• Auditors’ while audit the Company have to check whether there is any body corporate is shareholder of Company ‘S’.
• If Yes, whether BEN-1 is received by the Company.
• If BEN-1 not received, whether Company sent notice to such persons.
• If Notice Sent, reply not received whether Company has taken action in Tribunal.

In case of non-compliance by the Company, auditor has to report the same in his Report.

III. Directors/ Officer in Default of Company ‘S’:

It is responsibility of the directors as officer in default to do followings:

• They shall check whether there is any beneficial owner of shares of Company.
• Whether there is any Holding Company
• Whether there is any Subsidiary, WOS, associate Company

If Company having any Holding Company has to follow process as mentioned in Section 90(5) discussed above.

If Company having Subsidiary, Associate Company they have to check whether their shareholders required to file BEN-1, If yes they will follow with them to file BEN-1 to subsidiary/ associate Company.

F. To Which Companies these SBO provisions shall apply?

Provisions of SBO applicable on all the Companies. (Here company means reporting Company)

i. Listed Public

ii. Unlisted Public and

iii. Private

G. To Which Companies these SBO provisions shall not apply?

The provisions shall not apply to the holding of shares of companies/body Corporates, in case of pooled investment vehicles/investment funds such as Mutual Funds,

i. Alterative Investment Funds (AIFs),

ii. Real Estate Investment Trusts(REITs) and

iii. Infrastructure Investment Trusts (lnvlTs) regulatedunder SEBI Act.

H. The word “together with any other person to” includes interest of Relatives in shares also?

Computing threshold of 10%, the combined holding of the person along with the holding of such other persons having common interest shall also be considered.

I. Whether a Company/ Trust/ Body Corporate can be Significant Beneficial Owner?

As per Section 90, only a Natural Person can be Significant Beneficial Owner. For the purpose of significant beneficial owner, in case of ‘person other than individuals or natural person’, shall be determined as under:

S. No.	Where Member is	Along with	Percentage
A.	INDIVIDUAL	– who acting alone or – together, or – through one or more persons or trust, including a trust and persons resident outside India	Hold at least 10% of share capital of the Company
B.	COMPANY	Significant beneficial owner is the natural person, who, – Whether acting alone or – together with other natural persons, or – through one or more other persons or trust	Hold atleast 10% of share capital of the Company Or Who exercise significant influence or control in the company through other means.
C.	PARTNERSHIP FIRM	Significant beneficial owner is the natural person, who, – Whether acting alone or – together with other natural persons, or – through one or more other persons or trust	Hold at least 10% of capital or Has entitled of not less than 10% of profits of the partnership firm.
D.	TRUST	The beneficial owner shall includes – identification of the author of the turst, and – the trustee, and – the beneficiaries with not less than 10% interest in the trust and – any other natual person exercising ultimate effective control over the trust through a chain of control or ownership.

J. If an individual holding interest in shares less than 10% whether SBO rules shall apply on such person

First Condition for applicability of SBO Rules and section 90 i.e. Natural person should have at least 10% of interest in ‘Shares’.

Example:

Capital Structure of Company ABC limited is as following:
Equity Share Capital of	Rs. 1,000
CCD’s of	Rs. 1,500
CCPS’ of	Rs. 500
TOTAL	Rs. 3,000

Mr. A beneficially holds Rs. 260 equity shares in the Company. Whether Mr. A beneficially required to give disclosure under SBO?

Solution: For the purpose of SBO Rules share capital includes (CCD’s and CCP’s). Therefore total share capital of the Company is Rs. 3,000/-.

Mr. A beneficially holds Share capital of Rs. 260/-. His percentage of holding is 260/3000= 8.667%.

As holding of Mr. A beneficially is less than 10% therefore no need to give disclsoures u/s 90 of SBO Provisions.

K. Meaning of Shares under Section 90 read with relevant rules.

As per Explanation II of Rule 2 (e) of SBO Rules, For the purpose of calculation of 10% of beneficial interest in shares, Shares Includes…Instrument in form of

• Global Depository Receipts,
• Compulsorily Convertible Preference Shares or
• Compulsory convertible debentures.

L. Whether SBO rules applicable on person resident outside INDIA (Non-Resident.

The definition of SBO includes non-residents as well. Therefore, the non-residents shall also be covered by the said provisions.

M. Checks for applicability of SBO Provisions and rules?

1. There should be an Natural Person.

2. Individual having beneficial interest not less than 10% of share capital.

3. Name of such individual not entered into register of Members.

4. Share capital includes (GDR+CCP’s+CCD’s)

N. What is meaning of Senior Managing Official?

The same has not been defined in the final rules or anywhere else under Companies Act.

Therefore, as per the General practices:

> SMO shall be someone who exercises strategic decision making powers in respect of the legal person (for example, a company director).

> In situations where there is more than one official of a legal person with strategic decision making powers and none is senior to the others, all should be treated as senior managing officials.

> Accordingly, the CEO/ MD/ Manager/WTD of the company to be identified as SBO.

HYPOTHETICAL SITUATIONS

A. If an Individual (‘a’) holding shares in any Company (Exp. Mr. A Holding 50% shareholding of ABC Pvt. Ltd. and his name entered into register of member)Whether provisions of SBO shall be applicable on Mr. A or Not?

As per meaning “Significant Beneficial Owner: means beneficial owner holding ultimate beneficial interest not less than 10% and whose name not entered in the register of members of a Company.”

Therefore, One can opine that SBO provision applicable on person who is holding beneficial interest and whose name not entered into register of members. In above mentioned example individual holding shares directly in the company in his name therefore provision of SBO not applicable on such individual.

B. If an Individual (‘a’) holding shares in any Company,(Exp. Mr. A Holding 5% shareholding of ABC Pvt. Ltd. and his name not entered into register of member).

On behalf of Mr. a name of Mr. B entered into register of Members. Whether provisions of SBO shall be applicable on Mr. A or Not?

As per SBO “Significant Beneficial Owner: means beneficial owner holding ultimate beneficial interest not less than 10% and whose name not entered in the register of members of a Company.

In the above mentioned question, shareholding is less than 10% therefore question of SBO doesn’t arise. No need to made compliances as per SBO.

C. If in the question B; Mr. A Holding 18% shareholding of ABC Pvt. Ltd. and his name not entered into register of member). On behalf of Mr. a name of Mr. B entered into register of Members. Whether provisions of SBO shall be applicable on Mr. A or Not?

Mr. A is beneficial owner and Mr. B is registered owner. Mr. B holding shares on behalf of Mr. A which is more than 10%.

As per SBO provisions, Mr. A fall under conditions of Section 90. Therefore, have to comply with the provisions of Section 90.

D. What is Director Shareholding and Indirect Share holding?

• X hold 25% shares of XYZ limited in his Name.
• Y hold 99% shares of ABC Limited and ABC Limited Hold 70% shares in XYZ Limited in its name.

In the above mentioned case Mr. X hold Directly 25% shares in XYZ

And

Mr. Y holds indirectly 70% shares of XYZ Limited.

E. X hold beneficial interest in A Ltd, B Ltd, C LTD and D LTD. Should Mr. X disclose in BEN 1 to all the Companies?

Yes, Mr. X has to disclose to all the Companies.

F. X holds 80% of P Ltd, which holds 80% of Q Ltd. Can Mr. X claim that I have complied with my obligation having disclosed to P Ltd, and P Ltd should have disclosed my indirect holding to Q? Can Mr. X say that he has no idea about P’s holding of Q?

No. The SBO should provide the declaration of its beneficial interest in all the companies. It is pertinent to note that the one who has control or significant influence cannot plead unawareness. Therefore, right upto the vertical spectrum, Mr. X will have to keep disclosing

G. A holds 30% of P Ltd. Now, P Ltd holds 60% of Q Ltd, and Q Ltd holds 30% of R Ltd. Mr. A holds some 5% directly into R Ltd. So, should Mr. A disclose to P Ltd, Q Ltd and R Ltd?

Yes. The definition of beneficial interest covers both direct as well as indirect holding. Therefore, the Mr. A should provide the declaration to all the companies except P Ltd.

H. XYZ Limited is a company where no natural person is identified even though in the shareholding pattern its shareholders are company and firms both. But in spite of all efforts no natural person is identified who can be categories as a significant beneficial owner in XYZ Ltd.

Keeping in view, the provisions of Section 90 read with relevant rules who would be treated as significant beneficial owner

As per Rule 2(e) (iii) of Companies (Significant Beneficial Owners) Rules, 2018, the natural person who holds the position of Senior managing official such as Directors, Managing Directors, or any person what so ever designation he holds, but who controls the affairs of the company shall be consider as significant beneficial owner

I. Situation
Mr. X Hold 10% share holding of	PQR Limited
PQR Limited hold 90% share holding of	XYZ Limited
XYZ Limited Hold 15% share holding of	ABC Limited

a. Whether Mr. X need to Give SBO disclosure to PQR Limited

No, because he is holding shares in PQR limited directly not as beneficial.

b.Whether Mr. X need to Give SBO disclosure to XYZ Limited

No, because his holding in XYZ limited is less than 10%. (90 * 10% = 9%)

c. Whether Mr. X need to Give SBO disclosure to ABC Limited

No, because his holding in ABC limited is less than 10%. (15 * 90% * 10% = 1.35%)

J. Situation
Mr. X Hold 5% share holding of	PQR Limited
PQR Limited hold 15% share holding of	XYZ Limited
XYZ Limited Hold 95% share holding of	ABC Limited

a. Whether Mr. X need to Give SBO disclosure to XYZ Limited

No, because he is holding shares in PQR limited directly not as beneficial.

b. Whether Mr. X need to Give SBO disclosure to PQR Limited

Yes, Because X Natural Person acting as as Registered Owner As Well As SBO for XYZ Limited.

Mr. A Directly hold shares	5%
Through XYZ limited Holds (95 * 15%)	14.25%
Ultimate holding of A in XYZ is (5+14.25 = 19.25%) directly or indirectly

K. COMPANY:

Holding Company (H)	Subsidiary Company (S)
Shareholder of H:	Mr. A	Mr. B	Mr. C

Situation I:

Company ‘H’ holding 50% shareholding of Company ‘S’. Mr. A, B and C hold 10%, 20% and 30% shares of Company ‘H’. Whether A, B, C have to file BEN-1 to Company‘s’?

Solution: Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘H’	Holding of ‘H” in ‘S’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	10%	50%	(50*10%) = 5%	N
2.	B	20%	50%	(50*20%) = 10%	Y
3.	C	30%	50%	(50*30%) = 15%	Y

Situation II:

Company ‘H’ holding 30% shareholding of Company ‘S’. Mr. A, B and C hold 50%, 30% and 5% shares of Company ‘H’. Whether A, B, C have to file BEN-1 to Company‘s’?

Solution: Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘H’	Holding of ‘H” in ‘S’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	50%	30%	(30*50%) = 15%	Y
2.	B	30%	30%	(30*30%) = 9%	N
3.	C	5%	30%	(30*5%) = 1.5%	N

Situation III:

Company ‘H’ holding 10% shareholding of Company ‘S’. Mr. A and B hold 99%, and 1% shares of Company ‘H’. Whether A and B have to file BEN-1 to Company‘s’?

Solution: Interest of A, B, C in ‘S’ shall be as follow:

S. No.	Shareholders	Holding in ‘H’	Holding of ‘H” in ‘S’	Ultimate inters of Shareholders in ‘S’	BEN-1
1.	A	10%	99%	(10*99%) = 9.9%	N
2.	B	10%	1%	(30*1%) = .1%	N

NOTE:

As we discussed about the Company as Beneficial Interest same is situation with Partnership firms or Trust.

(Author – CS DiveshGoyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)