The Ministry of Corporate Affairs (MCA) has amended the Significant Beneficial Ownership (SBO) rules for companies under the Companies Act, 2013 which would now help identify entities that might be controlled from outside the country,
It has been titled the new amended SBO rules as Companies (Significant Beneficial Owners) Amendment Rules, 2019.
The amendment rules provides a new definition of SBO, according to which an individual as SBO is now based on direct and indirect holding of right or entitlement in the reporting entity.
Meaning of SBO
As per the amended Section 90 of the Companies Act, 2013 (‘Act’), SBO is referred as-
“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, of not less than twenty-five per cent. or such other percentage as may be prescribed, in shares of a company or the right to exercise, or the actual exercising of significant influence or control as defined in clause (27) of section 2 of the Act.
As per the definition provided in the Act, the government is empowered to prescribe other holding percentage even for the determination of the SBO. Accordingly, the revised Rules provides the following definition as –
“Significant Beneficial Owner in relation to a reporting company means an individual referred to in sub-section (1) of section 90, who acting alone or, together, or through one or more persons or trust, who possesses one or more of the following rights or entitlements in such company, namely:-
Significance of indirect holding / entitlement
The definition clarifies that if an individual does not hold any right or entitlement indirectly as per the above-mentioned clauses, then he should not be considered to be a significant beneficial owner. Therefore, as per this clarification, in order to be a SBO, a person must have an indirect right or entitlement and where the person has only direct holding, he shall not be termed as the SBO. This is mainly because the provisions have been framed to identify the ultimate beneficial so, where the owners are well disclosed to the company, the application of the said Rules will be of no use.
Determining ‘direct holding’
An individual shall be considered to hold a right or entitlement directly in the reporting company, if he satisfies any of the following criteria:
The significant beneficial ownership, in case of persons other than individuals or natural persons, shall be determined as under:
Determining ‘indirect holding’
An individual shall be considered to hold a right or entitlement indirectly in the reporting company, if he satisfies any of the following criteria:
Meaning of the term Majority Stake
This term has been newly inserted in the revised Rules, which has been defined to mean
a) holding of more than 50% of the equity share capital in the body corporate; or
b) holding of more than 50% of the voting rights in the body corporate; or
c) having the right to receive or participate in more than 50% of the distributable dividend or any other distribution by the body corporate.
Meaning of the phrase ‘person acting together’
The erstwhile rules did not specify the meaning of this phrase and hence, the same was left for different interpretations. In this regard, the revised Rules prescribes the meaning of the phrase, as per which:
If any individual, or individuals acting through any person or trust, act with a:
over a reporting company, pursuant to an agreement or understanding, formal or informal, such individual, or individuals, acting through any person or trust, as the case may be, shall be deemed to be ‘acting together’.
Meaning of Shares
As per the revised Rules, apart from the equity shares, the instruments in the form of global depository receipts, compulsorily convertible preference shares or compulsorily convertible debentures shall also be treated as ‘shares’.
Declaration of beneficial interest by SBO
Responsibility of the reporting co.:
Every reporting company is required to take necessary steps to find out if there is any individual who is the SBO in relation to that reporting company, and if so, identify him and cause such individual to make a declaration in Form No. BEN-1.
Responsibility of the SBO:
Every individual who is a SBO in a reporting company, is required to file a declaration in Form No. BEN-1 to the reporting company within 90 days from February 8, 2019.
Every individual, who subsequently becomes a SBO/ or where his significant beneficial ownership undergoes any change shall file a declaration in Form No. BEN-1 to the reporting company, within 30 days of acquiring such significant beneficial ownership or any change therein.
Clarification wrt becoming the SBO or any change therein during the transition time
Where an individual becomes a SBO, or where his significant beneficial ownership undergoes any change, within 90 days of the commencement of the Companies (Significant Beneficial Owners) Amendment Rules, 2019, it shall be deemed that such individual became the significant beneficial owner or any change therein happened on the date of expiry of ninety days from the date of commencement of said rules, and the period of 30 days for filing will be reckoned accordingly.
Filing of return of SBO
The declaration of beneficial interest received by the company, is required to be filed in Form No. BEN-2 with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of declaration by it.
Register of SBO in a company
Every company is required to maintain a register of SBOs in Form No. BEN-3.
Also, this register shall be open to for inspection during business hours, at such reasonable time of not less than two hours, on every working day as the board may decide, by any member of the company on payment of such fee as may be specified by the company but not exceeding fifty rupees for each inspection.
Duty of the reporting company
Every reporting company should in all cases where its member (other than an individual), holds not less than ten per cent. of its;-
(a) shares, or
(b) voting rights; or
(c) right to receive or participate in the dividend or any other distribution payable in a financial year,
give notice to such member whom the company knows or has reasonable cause to believe—
seeking information from such person, in Form No. BEN-4.
The rules are not applicable to the extent the shares of the reporting company is held by: