Volume 10 Issue No. 200/2018

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Hi Folks

200 is just another number. By itself it doesn’t signify anything. However, try adding ‘years’, ‘times’, ‘runs’, ‘people’ to it. It gains in stature. It reflects maturity. It shows consistency. It stands for tenacity. It embodies support. Of course suffix the humble but mighty ‘0’ (zero) to it in multiples and prefix a currency – it suddenly elevates to a new high and becomes valuable.

So also our Samhita. What started as Lexspeak way back in November, 2009 has now metamorphed into Samhita and we are proud to present to you the landmark 200^th issue. Back then when my practice had just started, we had little to do and a lot of time on hand. We had to find a way to fill the time meaningfully. To keep ourselves updated and also share the knowledge with a wider audience, we started publishing this newsletter. Today the practice has grown, we have much to do and very little time on hand. But I am glad we are continuing the fortnightly initiative as part of the practice pushing our boundaries. The journey has taught us lot of lessons in team work, scanning, mining, distilling & presenting complex information, effective communication, creative thinking, imagination, planning, execution, coordination with external agencies et al with an eye for quality and consistency. On a lighter note, who said “Consistency is the hallmark of the unimaginative” ?☺

Over the last 9 years, I am sure these lessons in leadership & organisation have positively impacted those team members who have been involved in Samhita one way or the other. These according to me are far more than an academic degree or skill set in making a true blue professional. I thank each one of them for the unstinted support they have offered through trying personal and professional schedules. I would also like to thank CA Naveen Bhat (for promptly confirming the Statutory Calendar month after month) and CA Krishnamurthy (for religiously sharing the tax summary since the advent of GST) as also Avohi, our technology partner over the years for design and delivery of Samhita on time, every time. And of course you, dear discerning readers deserve an applause for sparing time to read our thoughts & facts amidst busy schedules and flood of similar unsolicited newsletters. Your consistently encouraging and appreciative feedback to this humble release has kept the spirits up. We have promptly captured them as Readers’ Speak

Even as I was wondering how to make this milestone issue special, one of our readers and my good friend Guruprasad wrote to me asking if he can contribute an article on a contemporary topic that is transforming all our lives. I said why not. You will find the 1^st part of this article “Block Chain Technology & Governance” in this 200^th issue. Even as I contemplated how to share some new knowledge initiative on a long term basis, CAMP (Centre for Advanced Mediation Practices) came along and offered to contribute a series of awareness articles on Mediation as an alternative and cost-effective dispute resolution mechanism. Through the next few issues, you will be introduced to the World of Mediation, its techniques, application & benefits – all strung together in a lucid, easy to understand manner, written by Mediation practitioners.

Thanks are due to many, many people but honestly a BIG THANKS to MCA for the constant news feed – of course I am referring to the innumerable notifications, circulars, notices, rules & amendments being dished out by them on Companies Act. IBC, GST & FEMA follow as poor cousins – thankfully for us ☺ This 200^th issue of Samhita carries the Companies Act Ordinance effective from 2^nd November, 2018. It pays to ready carefully since most of the offences that were compoundable through fines have turned into non-compoundable penalties. Be prepared for more notices from ROC for violations and payment of penalty on adjudication.

Looking back and looking ahead, as we step into the 10^th year of Samhita and ready ourselves for the next innings of yet another 100 issues, I would like to share what Mahatria Ra (a well-known motivational speaker & spiritual guru) said in one of his Infinitheism sessions a few months back :

“Bad habits grow by themselves – like Weeds. Good habits have to be cultivated – like Seeds.”

Together let us sow and cultivate the seeds of sharing knowledge and disperse it around – like Mother Earth does. For any previous issues of Samhita and the readers feedback, please visit
https://sharadasc.com/resource-center/

Happy Reading

After the Companies (Amendment) Act, 2017 which brought several changes throughout the year starting January, 2018, now we have The Companies (Amendment) Ordinance, 2018 which is effective from 2nd November, 2018.

Based on the recommendations placed in the Report of the Committee to review Offences under the Companies Act, 2013, the Ordinance provides much needed relief to the corporates and professionals alike by decriminalising a host of offences. Some of the timelines have been stiffened and the original provisions relating to commencement of business have been re-introduced as part of the government’s strategy to curb shell companies.

Highlights are as below :

Compoundable offences have been re-categorised into an in-house adjudication framework. In over 16 sections consequence for violation has changed from “fine” to “penalty” which means such offences are not compoundable and are subject to adjudication by RoC. However, no change has been made in respect of any of the non-compoundable offences.
Ensuring compliance of the default and prescribing stiffer penalties in case of repeated defaults.
De-clogging the NCLT by :
– enlarging the jurisdiction of Regional Director (RD) by enhancing the pecuniary limits up to which they can compound offences under section 441 of the Act. Earlier, it was upto 5 lakhs with RD beyond which the matters were tried by NCLT. This limit is now increased to 25 lakhs with RD.
– vesting in RD the power to approve the alteration in the financial year of a company under section 2(41) and approve cases of conversion of public companies into private companies.
Other corporate governance related reforms include re-introduction of declaration of commencement of business provision; greater accountability with respect to filing documents related to creation, modification and satisfaction of charges; non-maintenance of registered office to trigger de-registration process; holding of directorships beyond permissible limits to trigger disqualification of such directors.

For more details kindly go through the ICSI’s analysis of the Companies (Amendment) Ordinance, 2018.

The Central Government, Ministries, Departments and Public Sector Undertakings shall procure minimum 25% of their annual value of goods or services from MSMEs (Micro, Small and Medium Enterprises). 3% within the 25% target shall be earmarked for procurement from MSMEs owned by women.

In 1842, the then Prime Minister of Britain, Mr William E. Gladstone had
rightly stated that “justice delayed is justice denied” and these words of wisdom couldn’t be more appropriate in describing the current situation of the Indian Judiciary. Litigation in India is akin to a quagmire, a sinkhole which you enter unassumingly, accidentally and once there, it’s literally impossible to get out of. Justice is almost always delayed and consequentially DENIED! With the sole intention…. Read more

Under the MSMED Act, 2006 the Central Government has notified that all companies (both public and private) with a turnover of more than Rs. 500 crores AND
all Central Public Sector Enterprises shall be required to get themselves on boarded on the Trade Receivables
Discounting System (TReDS) platform, set up as
per the notification of the RBI. Compliance shall be monitored by RoC of each state (for companies) and Department of Public Enterprises (for CPSEs).

Outstanding dues to MSMEs for more than 45 days shall be reported by Companies to MCA through a half yearly return stating the amount due along with
reasons for delay.

DCA is a selling agent who is engaged by a principal to assist in supply of goods or services by contacting potential buyers on behalf of the principal. Unlike
other agents, the DCA guarantees the payment to the supplier including arranging finances for the customer.

The CBIC has clarified the scope of transaction value in case a DCA extends a short term financing arrangement to the buyer or recipient of goods. The questions
which arise are whether the DCA is an agent and whether interest charged by the DCA for financing arrangements to the recipient of goods by the DCA is to be
included in the value of goods between the supplier and recipient. The CBIC has clarified as follows :

Where the DCA issues an invoice to the recipient in his own name he would be an agent.
Where the supplier issues the invoice to the recipient either directly or through the DCA, the DCA would not be an agent.

Where the DCA is construed as an agent under (i) above the interest charged would need to be included in the value of supply. Where the DCA is not construed
as in (ii) above, then the interest charged by the DCA to the recipient would be an independent transaction and such interest need not be included in the value of
supply.

CBIC has notified that no tax needs to be deducted at source for supply of goods and services between one PSU and another.

SEBI (Securities and Exchange Board of India) has issued 2 circulars with regard to :

Streamlining the process of Public Issue of Equity shares and convertibles
Standardised norms for transfer of securities in physical mode.

Corporate Governance is close to the heart to all Company / Chartered Secretaries be they in practice or in Industry across the world. Disruptive technology in
today’s Digital world is making this even more challenging and mind boggling.

We can harness the digital technology to some extent in having better Corporate Governance so that stakeholders across the globe are benefited.
Mr. Guruprasad. V, a finance and corporate governance professional has contributed an article for Samhita’s 200th Issue on how Blockchain can help better
Corporate Governance based on a recent study done by OECD in June 2018.

Do read Part-I of the article.

Note: The contents of this Newsletter are only a summary and has not dealt with any issue in detail. Any action taken or proposed to be taken must be in consultation with professionals and not merely based on the articles / news updates. S. C. Sharada & Associates disclaims all liability on action taken without professional advice.

S. C. Sharada & Associates,
Company Secretaries. #405, 7th Cross, IV Block, Koramangala, Bangalore – 560 034
sharadasc.com Phone : +91 80 25534374 , +91 80 25536618 Email: [email protected]

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