The Ministry of Corporate Affairs has introduced Form PAS-6 for the reconciliation of share capital to be filed half yearly. This Form is governed by the Rule 9A inserted by the Companies (Prospectus and Allotment of Securities) Third Amendment Rules, 2018, which provides for the dematerialization of issue of securities and existing securities of unlisted public company.
Background:
For Listed Companies:
1. Regulation 55 of the SEBI (Depositories) regulations, 1996, provides for reconciliation of the records of dematerialised securities, with all the securities being issued, on a daily basis by the issuer or its agent.
In case the issuer is State/Central Government of the Government securities, the reconciliation shall be done by the depository on a daily basis.
2. Regulation 55A of the SEBI (Depositories) regulations, 1996, the Issuer shall submit the audit report to the stock exchanges on a quarterly basis given by the Qualified Chartered Accountant or Company Secretary in Practice for the purpose of the reconciliation of the total issued capital, listed capital and capital held in dematerialized form, the details of changes in share capital and the in principle approval obtained by the issuer from all stock exchanges where it is listed in respect of such further issued capital.
The Audit report shall also confirm that the dematerialization of the securities are completed within 21 days from the date of request made by the issuer and if not done so, reasons for such delay shall be provided.
The Audit report shall provide for the updated status of the register of members
The issuer shall immediately bring notice to the depositories and stock exchanges for any difference observed in the issued, listed and the capital held by depositories in the dematerialized form.
3. SEBI CIRCULAR D&CC/FITTC/CIR – 16/2002 dated December 31, 2002 provided for the Secretarial Audit to be submitted quarterly, which was provided for shares held in depository and the physical form of issued/tally capital, updated register of members, the request for the dematerialization of securities shall be confirmed within 21 days and if not done so, reasons for delay and changes in share capital during the quarter and in principle approval from stock exchanges for all such changes.
The word “Secretarial Audit” has been replaced with the words “Reconciliation of Share Capital Audit” vide SEBI CIRCULAR CIR/MRD/DP/30/2010 dated September 10, 2010.
4. SEBI CIRCULAR D&CC/FITTC/CIR-15/2002 dated December 27, 2002 provided that if the internal department is allotted with the physical share work and an external agency is provided with the electronic registry, this will lead to delay in dematerialisation, non-reconciliation of share holding due to lack of proper co-ordination among the concerned agencies or departments. So, the SEBI decided that the share registry work should be maintained at a single point i.e., either in house or by a SEBI registered R & T agent.
Now, the Ministry of corporate Affairs has come with dematerialisation of shares of unlisted public companies and reconciliation of share capital in PAS-6 half yearly vide Section 29 of Companies Act, 2013 and Rule 9A of the Companies (Prospectus and Allotment of Securities) Third Amendment Rules, 2018
Applicability of Section 29:
1. Every Company making public offer; and
2. Promoters of Public Company making a Public offer of convertible securities.
The above companies shall issue the securities only in dematerialised form by complying with the provisions of Depositories Act, 1996 and regulations thereof
3. Unlisted Public Companies. These Companies shall hold and transfer the securities in dematerialised form as per the provisions of Depositories Act, 1996 and regulations thereof.
Applicability of Rule 9A:
1. Every unlisted Public Company with respect to its existing shares and issue of new shares;
Non-applicability:
1. Nidhi Company;
2. Government Company; or
3. Wholly Owned Subsidiary Company.
Responsibility of unlisted public company:
1. Dematerialisation of the entire holding of promoters, directors, key managerial personnel before making offer for issue of any securities or buyback of securities or issue of bonus shares or rights offer;
2. Securing International security Identification Number (ISIN) for each type of security and shall inform all existing shareholders about such facility;
3. An Agreement/Agreements shall be entered between the unlisted public company and Depository and Registrar to an issue and share transfer agent and the company shall provide for the following in such agreement:
a. Admission and Annual fees to the parties to agreement/agreements and ensuring timely payment to the both; and
b. Maintaining Security deposit with the parties to agreement/agreements and ensure that the maintenance period shall not be less than 2 years.
If the above payments are not made, the unlisted company shall not make offer of any securities or buyback its securities or issue any bonus or right shares till the payments to depositories or registrar to an issue and share transfer agent are made.
4. The unlisted Public Company shall ensure that the compliance with all the regulations/ circulars/guidelines/directions given by SEBI/depository, from time to time, with respect to dematerialization and incidental matters.
Also, the unlisted company shall comply with the provisions of Depositories Act, 1996, SEBI (Depositories and Participants) Regulations, 2018, and the SEBI (Registrar to an Issue and Share Transfer Agent) Regulations, 1993 for the dematerialization of securities of unlisted public company, except for:
a. Filing of half yearly return for reconciliation of share capital in PAS-6 within 60 days from the conclusion of half-year certified by Company Secretary in Practice/Chartered Accountant in Practice.
5. The unlisted public company shall immediately bring to the notice of the depositories any difference observed in its issued capital and the capital held in dematerialised form.
Responsibility of Security holder:
1. The security holder shall ensure that:
a. Dematerialisation of securities before the transfer; and
b. Dematerialisation of all his existing securities before subscribing to the securities of an unlisted public company by way of private placement or bonus shares or rights offer.
2. The grievances, if any, shall be filed before the Investor Education and protection Fund Authority.
Role of Investor Education and Protection Fund Authority:
The Authority shall initiate action against a depository or participant or registrar to an issue and share transfer agent after prior consultation with the Securities and Exchange Board of India.
Contents of Form PAS-6:
1. ISIN of the security reporting; (one form for each security type)
2. Period of filing; (Half yearly period)
3. Details of capital of Company in terms of number of shares and percentage; (Issued, held in CDSL and NDSL, held in physical form)
4. Reasons for difference in issued capital and total number of shares as per this form; (Total number of shares= held in NDSL+ held in CDSL+ held in physical form)
5. Details of changes in share capital during the half–year;
6. Details of shares held by Promoters, Directors and KMPs; (in physical and Demat)
7. Confirmation for updating the register of members;
8. Confirmation for dematerialization of excess shares as per previous reporting period. In case, it is not resolved, reasons for such shall be provided;
9. Total number of demat requests and confirmation of dematerialisation within 21 days of receipt of request and if not don, reasons for delay.
10. Details of CS of Company/Company;
11. Details of CS/CA in Practice; and
12. Confirmation for the appointment of a common agency for share registry work.
Verification of Form PAS-6 by director/manager/CS/CEO/CFO of the Company:
1. He shall declare that all the requirements with respect to Companies act, 2013, Depositories Act, 1996 and the rules/regulations made thereunder in respect of the subject form of this form and matters incidental thereto, have complied with;
2. He shall also declare that all the information given herein above is true, correct and complete including the attachments to this form and nothing material has been suppressed; and
3. He shall certify that he has entered into an engagement with the certifying professional.
Certification by Company Secretary in Practice or Chartered Accountant in Practice:
1. Declaration for engagement duly entered with the Company;
2. He shall certify that he has gone through the provisions of Companies act, 2013, depositories Act, 1996 and the rules/regulations made thereunder in respect of the subject form of this form and matters incidental thereto;
3. Verification of the contents with the original records;
4. Certification for:
a. The said records have been properly prepared, signed by the required officers of the Company and maintained as per the relevant provisions of the Companies Act, 2013, and the Depositories Act, 1996 and were found to be in order;
b. All the required attachments have been completely and legibly attached to this form; and
c. Liable for action under Section 448 of Companies Act, 2013 for wrong certification.
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