RETROSPECTIVE CSR


Indian laws are interesting phenomena incrementally so in recent years. It is like the king’s wishes. If king pronounces a desire it will be treated as law and will of God. Procedure to convert that desire formally to the law may be complied with in a due course. Any donation made by a company till 26th May 2020 was not legally a CSR contribution except under ages-old pre-democracy principle of king’s wishes. Now, due course of law-making granted king’s wishes its due legal status retrospectively.

Schedule VII of the Companies Act, 2013 which list out items which might be considered as CSR may be amended without parliamentary node by way of Notification issued by concerned Joint Sectary of the Ministry of Corporate Affairs. Practically it requires official approval from concern Minister. Mere wishes of the Minister or even of the whole cabinet are not enough to change a legal position.

In the present case, Prime Minister announced a new but controversial fund almost parallel to existing and well settled “Prime Minister’s National Relief Fund”. New fund is named as the “Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)”.

The major difference in both PM funds is the audit – previous one is to be audited by a constitutional authority – Comptroller and Auditor General of Indian (CAG) which place its audit report to Public through the Parliament of India – called as the temple of Indian Democracy by the present prime minister. On the other hand, newer one is to be audited by a Chartered Accountant firm of choice of the fund and the audit report shall largely be a private affair of the fund. Hopefully, the second one shall be made public under federal transparency law called the Right of Information Act, 2005. However, nothing is clear as of now.

As soon as Prime Minister of India announced this Fund and requested contribution to this fund as part of Corporate Social Responsibility, money starts pouring into this fund. But where was the law? No due diligence was made either by the Government at the time of acceptance of the Fund as CSR nor by contributors. India particularly Corporate India has a long history of pleasing the ruling king then the compliance of the law. This was one fit case.

Soon, auditors of the contributing companies start raising queries. A national but silent whistle was blowing which was a wakeup call for the Government.

Now the notification read as under:

  1. (the number is actually missing, a familiar typo) In Schedule VII, item (viii), after the words “Prime Minister’s National Relief Fund”, the words “or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)” shall be inserted.

  2. This notification shall be deemed to have come into force on 28th March 2020.

What it actually convey? No company contributing to the fund since 28th March 2020 till 26th May 2020 is good in legal interpretation. These companies receive no proper legal advice despite hiring big law firms. They actually do not care about the written law as they understand and believe the king’s wishes are law after all.

No, I have no issue with the king’s wishes as long as it gives a positive result to the society and the Nation. Read paragraphs hereinabove in a lighter tone and just for legal understanding only. We all know this was actually a hard time for Ministers and Secretaries working on various relief packages. It was appreciable work when a good number of government officers was working from home.

Take inspiration and stay at home as far as possible. Work from Home is a buzz word.

Aishwarya Mohan Gahrana

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A VALUERS’S SIDE OF DRAFT VALUATION BILL


Ministry of Corporate Affairs has placed on its website a Report of the Committee of Experts which examined the Need for an Institutional Framework for Regulation and Development of Valuation Professionals. Stakeholders may send their comments till 14th May 2020. Usually, Indian stakeholders took no interest in such draft as the law-making process is considered slow. However, stakeholders are equally responsible for plight create by half-hearted laws be it the Companies Act, 2013 or the Insolvency and Bankruptcy Code, 2016.

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GOOD OPPORTUNITY TO ATTEND AN AGM


Corona is good for corporate governance. The government, without any known intention to do so, adopted an inclusive approach for the benefit of members and shareholder of companies in India. If you are a shareholder in any company in India, this is the best time for you to attend a General Meeting of your company. Of course, you will be part of their decision-making process in all practical manner. Read More to avail best out of this opportunity and share a lot for benefit of lakhs of individual investors and improvement of corporate Governance.

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ANNUAL GENERAL MEETING IN YEAR 2020


Annual General Meeting during the year 2020 is not an ordinary affair. This is now recognized by the Ministry of Corporate Affairs. Now, bigger companies are required to facilitate members to present in their Annual General Meeting through Video Conference or other audiovisual means even when holding AGM physically, others have the facility to use hold AGM through VA and OAVM. Circular 20/2020 dated 5th May 2020 extends facility provided by Circulars 14/2020 and 17/2020to hold General Meetings through VA and OAVM to Annual General Meetings.

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PLANNING RETIREMENT/BREAK FROM DIRECTORSHIP


We received a query multiple time – how to plan retirement from directorship? Certainly, they are not asking me about post-retirement financial planning. This question particularly concerns professional directors, employee director, or independent directors concerned. This is not easy to plan a retirement which might have legal consequences up to the next 8 years. Moreover, retirement as directors is not one time exercise but a continuous one. It starts with your joining as director.

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CRITICAL VIEW ON PROPOSED NATIONAL INSTITUTE OF VALUERS


Ministry of Corporate Affairs recently published a Report of the Committee of Experts to Examine the Need for an Institutional Framework for Regulation and Development of Valuation Professionals. This report proposed a new National Institute of Valuer as a bureaucratic institution for governing the nascent profession of valuers. We will discuss the same.

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GENERAL MEETING THROUGH AUDIO VISUAL MEANS


Within days of the nationwide lockdown due to COVID-19 (Corona), Indian Stock exchanges on 26th March 2020 received intimation of first extraordinary general meeting through audiovisual means. This was not legally facilitated. After a great demand, the Ministry of Corporate Affairs came out with a hurried framework through its General Circular 14/2020 dated 8th April 2020, applicable to all listed or unlisted companies. It raises more question that solution as of now but certainly in a good direction. Thereafter Ministry issued General Circular 17/2020 dated 13th April 2020. We have already discussed this framework for companies which are not required to provide the facility of e-voting under the Act. We will in this post discuss this framework for Companies which are required to provide the facility of e-voting under the Act or any other company which has opted for such facility.

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GENERAL MEETING THROUGH AUDIO VISUAL MEANS IN OTHER COMPANIES


Within days of the nationwide lockdown due to COVID-19 (Corona), Indian Stock exchanges on 26th March 2020 received intimation of first extraordinary general meeting through audiovisual means. This was not legally facilitated. After a great demand, the Ministry of Corporate Affairs came out with a hurried framework through its General Circular 14/2020 dated 8th April 2020, applicable to all listed or unlisted companies. It raises more question that solution as of now but certainly in a good direction. We will in this post discuss this framework for private and unlisted public companies with less than one thousand members. {Update: This post is updated to incorporate provisions of General Circular 17/2020 dated 13 April 2020}

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COMPANIES FRESH START SCHEME 2020


There is a long pending demand to grant immunity from the heavy late filing fee on late filing of fee particularly on the filing of Annual Accounts and Annual Returns to be filed by the companies. Presently the late filing fee is Rs 100 per day each form under annual filing which result in huge amount in case of even 30 days delay. There are several questions customarily not to ask from companies like what was the problem if filing AGM was held on time. However, there are some genuine problems for promoters, particularly for small companies. This scheme helps these non- compliant companies. The present scheme includes many other pending forms also. We will discuss.

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Promoters in doubt to file settlement proposal during Liquidation Process


Guest Post: Adv. Nitin Kumar Kaushik (Insolvency Professional) advnitinkaushik@gmail.com Mob: 70422-58781

Issue: whether the withdrawal of application filed by the Applicant under section 7, 9 and 10 of IB Code can be permitted by the NCLT post liquidation order passed under section 33 of IB Code. OR, can promoter be entitled to propose a scheme of the arrangement after passing Liquidation Order under Section 33 of IB Code?

Earlier, as per Rule 8 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (“CIRP Rules”), the National Company Law Tribunal may permit withdrawal of Section 7, 9 and 10 of Insolvency and Bankruptcy Code, 2016 (“IB Code”), on a request by the applicant before its admission. However, at that time, there was no provision in the IB Code to permit withdrawal of the CIRP process after the admission of CIRP.

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CORONA AMENDMENTS UNDER THE COMPANIES ACT, 2013


We firstly ignore negative news going to effects us. Secondly, we undermine the impact. Third, we start fighting. Humanity since 2017 knew and ignored about 73 corona viruses waiting to affect humanity. It is changing our life and law. I wrote a post on initial restrictions going to impact corporate compliances on 13th March 2020 which I considered now outdated. Here are measures the Ministry of Corporate Affairs announced:

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Company Affirmation of Readiness towards COVID-19


Companies Affirmation of Readiness towards COVID-19 Form is a simple web form. It can be filed from anywhere. There is no requirement of DSC and does not involve payment of any fee.

The purpose is to make companies and partnerships aware of unprecedented time and to ensure their better contribution to fighting this virus.

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MY EXPERIENCE OF WORK FROM HOME


Work form Home is buzzword world over this month and Second half of March 2020 in India. We all are preparing for this to the extent possible. I am sharing my eight years of experience of work from home, hereunder:

I opted “work from home” in June 2012 and officially working from Home and later Home Office since 5th July 2012 the day I got my Certificate of Practice. Though, this was actually not my first experience nor something new for Indian. Indian Professionals, particularly Doctors, Vaidya, Haqims, Advocates, Vakils, Pleaders, Letter writers, deed writers, Landlords and even big traders has a history of work from home or have home offices. Though we please those were the days, noting changes except in favour of home office. Technology is the biggest enabler for work from home and lack of self-discipline is a hurdle. Let us start work from home.

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Aside

I m participating in #JanataCurfew on Sunday 22 March 2020
Are you?
I will observe it on Saturday 21 March 2020 also.

CORONA RESTRICTION EFFECTING COMPLIANCE


Corona Virus is spreading eliminating mighty economies. It created unprecedented Socio-economical legal issues all over the world. India announced Visa Restrictions vide No.1/Comm/BoI/2020-81 dated 11th March 2020. On a simple reading, this looks draconian but essential. Just thereafter, stock exchange dropped an unprecedented manner. Board meetings cancelled even for companies with a foreigner in the board of Directors. Corporate India needs business plans and legislative support.

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Share Certificate and Family Company


Away from strictly legal structure know to us, we students of Indian corporate laws know specific classes of companies  – Husband-wife company, Family company, friends basically, and company – “basically partnership” etc. Nothing is defined but all these terms. The basic character of these companies is the utmost trust and faith at the time of incorporation. Due to this, we receive specific queries like:

Is it mandatory to issue a share certificate if both/all the directors are shareholders?

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Now, Added SPICe Incorporation


The era of simple incorporation has already been over. We have SPICe since long which claimed to facilitate additional registrations at the option of the applicant. Now, This is over. The Government is now at the final stage of serving added SPICe. The menu name “SPICe+”

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SUBSCRIPTION SHEET


Foundations of all great buildings are usually a neglected construction but ensuring long life of the building. Subscription Sheet is one of the neglected areas of our discussions in corporate laws. With the introduction of eMemorandum of Association (SPICe MoA) and eArticles of Association (SPICe AoA), we usually consider it obsolete. No, it is actually not.

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THE ECOSYSTEM OF LAW


How to read the ecosystem of law is the basic question all practitioners of procedural laws raise time to time. This is not the same question students of law raise in schools or lawyers in courts. This is not all about interpretation and cracking of a law code hidden behind words. Here, I am trying to reply with reference to my bread and butter – the Companies Act, 2013 and The Insolvency and Bankruptcy Code, 2016.

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Provisional Registration of Company


No. In this post, I am not discussing any existing law. This a proposal I received in form of a query on Quora about registration of a temporary company. I received another query, how India registered so many “paper companies”.

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