CS Divesh Goyal
Deposits are crucial Topic under Companies Act, 2013. As the month of March is on its end, most of the companies which have taken loan earlier under the companies act 1956 and have filed DPT-4 in this Financial year declaring that the companies has such and such amount of deposits as on 31.03.2014, are now required to repay such loan on or before March 31, 2015 under Section 74(1)(b) otherwise those companies which shall not repay the amount within the prescribed time period, shall be punishable under section 74(3) and the penalty is so much swerve that it has brought the wrinkles on heads of officers of the companies.
Have a serious look into what is stated herein with your skillful application of mind. Section 74 of the Companies Act, 2013, provides that any deposit accepted before the commencement of the Companies Act, 2013, needs to be repaid/refunded on or before 31st March 2015. The said section also states that a return has to be filed with ROC in respect of existing deposits.
New Section 74 of the companies Act, 2013 the relevant portion of which is as under:
“(1) Where in respect of any deposit accepted by a company before the commencement of this Act, the amount of such deposit or part thereof or any interest due thereon remains unpaid on such commencement or becomes due at any time thereafter, the company shall-
(b) repay within one year from such commencement or from the date on which such payments are due, whichever is earlier.”
Rule 2(b) of the Companies (Acceptance of Deposits) Rules, 1975 the relevant provision of which is as under:
“ deposit” means any deposit of money with, and includes any amount borrowed by, a company, but does not include–
(ix) any amount received by a private companies from a person who, at the time of the receipt of the amount, was a director, relative of director or member…”
In the Earlier Companies Act, 2013, Private Company could accept deposits from the following Sources as per above definitions:
a) Receiving of Money from the Directors
b) Receiving of Money in the form of Share Application money.
c) Receiving of Money from the Relative of Directors and Members.
d) Receiving of Money as Advanced from the Customers.
Let’s discuss on above mention points:
A. RECEIVING OF MONEY FROM THE DIRECTORS:
As per Sub rule (viii) Rule-2 of Acceptance of Deposits by Companies Rules, 2014, Deposit doesn’t include: Any amount received from a person who, at the time of the receipt of the amount, was a director of the Company.
So as per sub rule (viii) All the Companies including private limited company are allowed to accept loan from the directors of the Company. Condition: Director furnishes to the Company at the time of giving the money, a declaration in writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others.
B. RECEIVING OF MONEY IN THE FORM OF SHARE APPLICATION MONEY:
There are two situations:
i. Share application money received before 1st April, 2014.
ii. Share Application money received after 1st April, 2014.
i. Share application money received before 1st April, 2014:
As per ICSI FAQ’s No. 126
Share Application money with the company in excess of 2 months is treated as Deposit under Companies Act, 2013. Would Share Application money in excess of 2 months existing on 31st March 2014, be termed as deposit?
The Share Application money lying with companies as on 31st March 2014 may not be termed as deposit in case the same is repaid within 2 months i.e. upto 31st May, 2014. Else the same would also be termed as deposit.
Bare Act Language:
As per Sub rule (vii) Rule-2 of Acceptance of Deposits by Companies Rules, 2014: Any amount received as Share application money for issue of securities. Such securities should be allotted within 60 days from the receipt of Share application money.
As per the ICSI, FAQ If any company have pending share application money as on 1st April 2014 irrespective of date of receipt of Share Application Money. The Company has Two months upto 31st May, 2014 for allotment of shares.
If Company doesn’t allot shares for such Share application money upto then
ii. Share application money received after 1st April, 2014:
If Share Application money received after 1st April, 2014 then As per Sub rule (vii) Rule-2 of Acceptance of Deposits by Companies Rules, 2014: Any amount received as Share application money for issue of securities. Such securities should be allotted within 60 days from the receipt of Share application money and if company fails to allot shares within 60 days of receipt of money then company requires refunding same to subscribers within 15 days of expiry of 60 days.
If company fails to allot shares and refund money then such money will be considered as Deposits.
C. RECEIVING OF MONEY FROM THE RELATIVES OF DIRECTORS & MEMBERS:
There are two views of professionals for the amount received by the Private Limited Companies before 1st April, 2014 from the Relatives of Directors and Members of Company.
i. Above Money will not be treated as Deposits.
ii. Above Money will be treated as Deposits.
i. Above Money will not be treated as Deposits.
a) Section 74(1) of the Companies Act, 2013 is using the words “any deposit accepted by a company before the commencement of this Act.” Thus before the Companies Act, 2013 if a company has accepted any deposit under the Companies Act,1956(which was in existence prior to 2013 Act), the same needs to be repaid as per the mandate of section 74(1)(b) on or before 31st March,2015.
b) Therefore, all the monies received from relatives of Directors and members of a private company including the amounts stated in (i) to(xii) of clause (b) of rule 2 of the Companies (Acceptance of Deposits) Rules, 1975 on or before the commencement of companies Act,2013 are not required to be repaid as they were not deposit when accepted. Crux of Section 74 lies in the fact that when the amount received whether the same was deposit or not.
The provisions of Section 74 of the Companies Act are applicable only to deposits which were accepted in accordance with the provisions of section 58A of the Companies Act, 1956 read with Companies (Acceptance of Deposits) Rules, 1975. Unfortunately due to misinterpretation of Section 74 many unnecessary returns have been filed with ROC and the same is being pressed to be filed again.
ii. Above Money will be treated as Deposits.
In the safer side many professionals have view that any amount received from the relatives of directors and members even before 1st April, 2014 will be considered as deposits under Companies Act, 2013. Therefore following compliances will be required to be done by Companies:
But the question if company not able to repay the same. As per me following are the way outs:
1. The Companies, which have filed DPT-4, should repay the whole amount before the end of this month as the companies have already declared that the amount was a deposit and hence, need to repay such amount as per Section 74(1)
2. Wait for any clarification to be issued by the Ministry in this regard but caution it can be too late for those corporate, if no clarification being issued or if issued, is not in favour of corporate.
3. The Best option is to file an application with Tribunal/ Company Law Board before March 31, 2015 under section 74(2)for getting further time for the repaying the deposit amount. As once, the application is being filed; the company may get the time till the time CLB gives any order.
And The extension to be given by CLB depends upon the financial position of the company, the efforts taken up by the company during the year in repayment of deposits, further efforts taken by the company in repayment of balance deposits etc. as we have seen in a high profile company case that the extension has been given only for 6 months and that only in case when the company has repaid back the substantial part of its deposits and have applied to the Bank for obtaining loan with which the balance deposit shall be repaid.
D. RECEIVING OF MONEY AS ADVANCED FROM THE CUSTOMERS.
Bare Act Language:
As per Sub rule (xii) Rule-2 of Acceptance of Deposits by Companies Rules, 2014: Any amount received as advances from the customers. Such work should be done within 365 days from the receipt of Share application money otherwise company have to repay such amount to the customer before expiry of 365 days.
If company fails to repay within 365 days then such amount will be considered as deposits.
If any company has advance money as on 1st April 2014 irrespective of date of receipt of Money received. The Company has 365 days upto 31st March, 2015 for repayment of same..
If Company doesn’t refund such Advance money then
|S. No.||QUESTION & ANSWERS|
|A.||If the deposit is due within 6 month of Commencement of the Act, 2013, then what is the time period for the payment of deposit?|
|As per Transition period of given by the Act for repayment of deposits.Than Company will be entitled to repay deposits within one year of commencement. In this case the company gets an additional period of 6 months|
|B.||What is the Last date of repayment of deposits accepted before commencement of the 2013, Act?|
|All the deposits accepted before commencement of the act 2013 are required to be repaid no later than one year from the date of commencement of the 2013, Act.|
|C.||If deposits accepted before commencement of the 2013, Act not fallen for due and for re payment then what is the last date of repayment of same?|
|All the deposits accepted before commencement of the act 2013 are required to be repaid no later than one year from the date of commencement of the 2013, Act. Irrespective of whether such deposits have fallen due for payment or not.|
|D.||If a company is regular in payment of interest/ deposits then is it mandatory to repayment of deposits before 31.03.2015?|
|Irrespective of whether company is regular in payment of interest/ deposits it’s mandatory to repayment of deposits before 31.03.2015|
|E.||Whether deposits accepted prior commencement of Companies Act, 2013 can be renewed or not?|
|Deposits accepted prior to the commencement of the 2013 Act, need to be communicated to the Registrar and they cannot be renewed. Such deposits are required to be repaid within one year of commencement of the 2013 Act.|
|F.||If a person ceases or resign from the post of director after giving loan then such loan will be considered as deposits or not?|
|Requirement of director will be check at the time of receipt of amount. Thus, later he may cease to be a director.|
|G.||If deposit in the joint name of director and other person then how it will be treated?|
|A deposit in joint names of director and another person, who may or may not be director should be permissible, if name of director is first depositor, though there is no specific provision.|
|H.||Borrowings which are excluded from the definition of Deposits?|
|ü Amount from government and guaranteed by government.ü Amount received from foreign government or foreign Bank.ü Loan from Banks and Financial Institutions.ü Amount received against commercial paper.
ü Inter corporate borrowing.
ü Subscription to securities and call in advance.
ü Amount from Directors.
ü Secured Bonds/debentures.
ü Convertible bonds/debentures.
ü Non-interest bearing security deposit from employee.
ü Amount in trust.
ü Advance and security deposit received by company.
ü Unsecured loans from promoters.
ü Amount accepted by Nidhi Company.
|INTER CORPORATE BORROWING:As per definition of deposit Inter corporate borrowings doesn’t fall under preview of deposits. Therefore if a company wants fund then Company can take Loan from other company such loan will not treat as deposits.Any amount received by a company from another company is not ‘deposit’. Thought there is no restriction on the company borrowing the money, the lending company has to observe limits of lending as specified in section 186 of Companies Act,. 2013.Check: Before giving any Inter Corporate Loans check the applicability of Section 185 on such transaction. (Like: If director of lending company is director or member of borrowing Company then inter corporate loans not allowed, such loan fall under category of Loan to director)|
|AMOUNT FROM DIRECTORS:Any amount received from a person who was director of the company at the time of receipt of the amount is not ‘deposit’.
Condition: The director should declare in writing that the money he is depositing is not borrowed or accepting loans or deposits from others.
|UNSECURED LOANS FROM PROMOTERS: Unsecured loans brought by promoters or relatives in pursuance of stipulation of financial institutions or bank. However, after the loan is repaid the Banks/FI, the amount from promoters or their relatives will be treated as ‘deposit’.
|S. No.||Particular||Time Period of Repayment|
|A.||If the deposits fall due for repayment after one year after the commencement of 2013 Act.||Then maximum time period for repayment will be one year from the date of commencement of 2013 Act.|
|B.||If deposits fall due for repayment within one year after the commencement of the 2013 then.||Then maximum time period for repayment will be one year from the date of commencement of 2013 Act.|
|C.||If the repayment of deposits are over due by less than one year before the date of commencement of the 2013 Act.||Then the deposits shall be repaid within a period of one year from such commencement or one year from the date deposits fell due for repayment whichever is earlier and hence the maximum time period may be less than one year from the date of commencement of the Act.|
Distinction between Loan and Deposits:
For the Purpose of provisions of public deposits, all borrowings are ‘deposits’ unless excluded
(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at email@example.com)