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Basic guide to deposit with request compliance

 Basic guide to deposit with request compliance

 

In this article, we are supposed to cover one of the most open for discussion topic “Deposit” though the section is very ambiguous due to its vast definition of exceptions we are getting ahead only for the basic terminology and essential compliances of filing an offer of Deposit and Return of Deposit and after reading the same A reader will have a fundamental knowledge of Deposit.

 

Introduction to Deposit

 

Every loan comes under the ambit of Deposit but every loan is not a Deposit this is what definition under section 2(31) of Companies Act, 2013 “Deposit” includes any receipt of money by way of deposit or loan or in any other form, by a company, but does not include:

What?

So here are the exceptions to the definition of “Deposit” that the following amounts received by the company shall not be considered as Deposit.

 

  1. Receipt of Amount from Central or State Government, Local or Statutory Authority.
  2. Receipt of amount from a source that is repayable by Central or State Government.
  • Receipt of amount from international sources with comes under the provision of FEMA:

 

Foreign government

 

Foreign banks,

 

Multilateral financial institutions

Foreign export credit agencies

Foreign authorities,

Foreign bodies corporate

Foreign citizens

Foreign collaborators

A person resident outside India

Any other Subject to the approval of FEMA

 

  1. Receipt of an amount as loan or facility from Co-operative Banks, Banking Company, Banks notified by CG as per RBI Act.
  2. Receipt of an amount as loan from PFI, FI, Regional Financial Institutions, or scheduled banks.
  3. Receipt of funds against Commercial papers.
  • Any Inter-Corporate Loans or Deposit.
  • The amount received towards an offer of subscription to security, share application money or advance as well as pending allotments

but if securities are not allotted withing 60 days then such amount shall be also covered under Deposit if such amount is not refunded to the subscriber within 15 days after completion of 60 days.

  1. The amount transfer by the director through his own funds only not borrowed funds.
  2. Transfer by a relative of the director through his own funds only.
  3. Secured Debenture/Bond with the first charge on any tangible assets or Convertible secured debenture with a term less than 5 years.
  • Listed NCD’s (Non-Convertible Debentures)
  • Security deposit received from an Employee in terms of his/her appointment but not exceeding his annual income from the company as well as the same should be interest-free.
  • The interest-free amount received from a Trust or held in trust of a Company.
  1. The amount received as an advance in the due course of business for the following reasons:

a)     Amount received as an advance for the supply of goods and services which is adjusted within a time lap of 365 days.

b)    If the amount received under an obligation of any legal proceedings then a limit of 365 days shall not be applicable and the same shall not be considered as a deposit.

c)     Advance received under an agreement of immovable property and the same is appropriated as per the terms of the agreement.

d)    Security deposit to provide service or performance of a contract.

e)     Advance received to supply Capital goods in the long run.

f)      Receipt of advance money in place of warranty or AMC as per written agreement either for 5 years or as per common business practice whichever is less.

g)     Receipt of amount from any sectoral regulator as directed by the Central or State Government.

h)    Advance subscription money for Publication either in print or electronic media to be appropriated against such subscription.

In contradiction to the above points: Company dealing in those goods or services for which no authorization has been obtained amount received shall be Deemed Deposit in the lapse of 15 days from the date when it becomes due. (Applicable for point no.  a, b, and c only)

 

  • Unsecured loan bought by promoters of the company in a stipulation of any Bank or FI subject to the following condition:

 

A loan is provided as a stipulation imposed by a lender (Bank/FI) on promoters to contribute such finance;

A loan is provided by promoters themselves or through their relatives.

This exception under this subclause is only available till these loans are repaid.

 

  • Receipt of the amount by a Nidhi Company.
  • Funds received for subscription in respect of a chit under the Chit Fund Act 1982.
  • Funds were obtained under any collective investment scheme as per SEBI regulations.
  1. Fund of Rs. 25 Lakhs or more received in a one-time transfer from a person by a start-up company by way of convertible note i.e. Equity convertible instrument or repayable within 5 years.
  • Receipt of the amount under Alternative Investment Funds, Domestic Venture Capital Funds, Infrastructure Investment Trusts, Real Estate Investment Trusts, and Mutual Funds registered with SEBI.

 

All aforementioned exceptions are not covered in the definition of “Deposit”.

 Who is eligible to accept Deposit?

 A Public Company who fulfill the following conditions:

Net worth not less than Rs. 100 Crore.

Turnover not less than Rs. 500 Crore.

Obtained Prior consent of Members in duly convened General Meeting by passing Special Resolution.

 

Note: If an eligible company accepts deposit by within limits specified under section 180(1)(c) of the Companies Act, 2013 shall be required to pass an Ordinary Resolution in case of acceptance of deposit from the public.

 Other Companies Eligible to accept deposit:

A private company is a start-up or if fall under the following criteria:

1.Not an associate/subsidiary of any other company.

 

2. Borrowings from Bank/FI or any

Body-corporate is less than twice of its paid-up capital or Rs. 50 Crore, whichever is less

3. Company has not made any default in repayment of its borrowings.

 

Checklist to accept Deposit from Members

 Though post-enactment of the Companies Act, 2013, No company is allowed to offer and accept deposit except a public company who fulfill the aforementioned Conditions but to accept Deposit from members, an Eligible company needs to abreast following conditions namely as well:

  

Compliance

Other than Private Company

For Private Company

MGT-14

Special Resolution in General Meeting shall be filed with ROC within 30 Days.

Ordinary Resolution in General Meeting shall be filed with ROC within 30 Days.

 

Filing of Circular

Filing of the circular and statement with the Registrar within 30 days before the date of issue of the circular.in form DPT -1.

 

Certificate for Issuing Deposits shall be obtained and attached from the Statutory Auditor that the company has no defaults in past.

 

No Such Requirement in the case of Exempted Private Companies.

Trust Deed

Before 7 days of issuing a circular in DPT-1 company is required to execute a deposit trust deed in DPT-2

Not Applicable.

Deposit Repayment Reserve (DRR)

1. Opening of Separate Bank account with a Schedule Bank DRR Account.

2.On or before 30th April each year, deposit 20% or more amount of Deposits maturing during the financial year

3.Amount Deposited not less than 20% in  DRR account shall not be utilized for purposed other than repayment of funds

Not Applicable.

Charge on Assets Secured

(On the discretion of Company)

If secured debentures are issued then compliance of creation of charge has been made on such secured assets

if the company has not secured a deposit or partially secured deposit those Deposits shall be Termed as Unsecured Deposit

Optionally Applicable.

Receipt of Deposits

Provide receipts of deposit to depositors with 21 days of the amount received.

Similarly, Applicable to Exempted Private Companies.

Registers

Maintain Registers of Deposit and make entries within 7 days of receipt of the deposit amount.

Similarly, Applicable.

Tenure:

Not less than 6 months or more than 36 months

Except: if the Deposit amount is not exceeding 10 % of its paid-up capital and free reserves and securities premium.

Similarly, Applicable.

Interest Rate

No company shall issue a deposit carrying rate of interest exceeding the rate provided by NBFC Norms.

Similarly, Applicable.

Return of Deposit

E form DPT -3 shall be filed as a return of deposit annually by 30th June.

Similarly, Applicable.

 

                                   

 Limits to accept Deposit from Members:

 

Public Company

Specified IFSC

Eligible Company

Other Companies

Upto 100%of its paid-up capital & free reserves

Upto 10%of its paid-up capital & free reserves

Upto 35%of its paid-up capital & free reserves

 

Private Company

Start-Ups

Fulfills 3 conditions as mentioned above

Other Companies

Upto 5 years no limits no compliance

No limits No compliance

Upto 100%of its paid-up capital & free reserves

 

Some Quick FAQ’s on Deposit:

 Ques1: What is the rate of penal interest for the overdue amount of deposit?

Ans: A Company is liable to pay 18% interest for delay repayment of deposit, Deposit which are matured & claimed but not repaid.

 Ques2: Are deposits can be subscribed to in joint names?

Ans: Yes, Deposits can be subscribed jointly like shares but the number of joint holders cannot exceed 3 names.

 Ques3: Can a Deposit holder appoint a nominee for subscribing a deposit?

Ans: Yes, just like a shareholder as allowed under section 72 a Deposit holder can also appoint a nominee who in case of death of the nominee can claim those deposit amounts.

Ques4: What is the maximum tenure for to preserve Registers of Deposit?

Ans: As mentioned in the act, The Register of deposit shall be preserved for 8 years by the authorized director or company secretary.

 Ques5: Is it possible to claim a deposit before the date of maturity?

Ans: Yes, the Deposit amount can be claimed before maturity but only after completion of 6 months from the date of deposit at a reduced rate by 1%.

 Ques6: What shall be the treatment of unclaimed/unpaid deposits?

Ans: As per section 125(2)(i) of The Companies Act, 2013 the amount which is unclaimed/unpaid in place of deposit for more than 7 years shall be transferred to IEPF (Investor Education & Protection Fund).

 Ques7: What shall be the Penal Provision in case of Non-Compliance?

Ans: Contravention in Repayment of Deposit along with Interest.

Company

Officers

Company Shall be liable to pay the Deposit amount along with Interest thereon,

 A fine of min. 1 Crore or twice the amount of deposit, whichever is lower,

Which can be extended to 10 crores.

Officer or Directors in default shall be liable for imprisonment of seven years

A fine of not less than 25 lakhs which may be up to Rs. 2 Crore.

 

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Budget update 2021

Short Summary Union Budget Discussion 2021

 

Economic Reforms & Schemes – Budget highlights 2021

 

The overall capital expenditure for FY 2021-22 is Rs.5.54 lakh crore. Since the healthcare sector’s improvement is the need-of-the-hour, FM proposed a new centrally sponsored scheme, PM Aatmanirbhar Swasth Bharat Yojana, with an outlay of about Rs.64,180 crore over six years.

 

Further, the Budget outlay for Health and Well being is estimated to be Rs.2,23,846 crore for FY 2021-22, which is a rise by 137% Y-o-Y basis. The increased allocation is expected to expand and strengthen existing national health institutions, National Centre for Disease Control (NCDC), Health Emergency Operation Centers and mobile hospitals. Another major highlight was the increase in the FDI limits in the insurance sector from 49% to 74%. The government plans to divest two PSUs as well as one insurance company.

 

 

Direct Tax Proposals – Budget highlights 2021

 

Certain direct tax proposals were introduced, providing relaxation to individual taxpayers and startups to some extent. The individual and corporate tax rates for FY 2021-22 (AY 2022-23) was left unchanged. In a major move, the limit for tax audits under section 44AB has been increased from Rs 5 crore to Rs 10 crore (only where 95% of payments are digitized), providing relief to many corporate houses. The following are other proposed amendments:

  • Income Tax relaxation for senior citizens of 75 years age and above:
    It has been proposed to exempt the senior citizens from filing income tax returns if pension income and interest income are their only annual income source. Section 194P has been newly inserted to enforce the banks to deduct tax on senior citizens more than 75 years of age who have a pension and interest income from the bank.
  • Reduction in time for IT Proceedings:
    Except in cases of serious tax evasion, assessment proceedings in the rest of the cases shall be reopened only up to three years, against the earlier time limit of six years.
  • Constitution of ‘Dispute Resolution Committee’:
    Those assessed with a taxable income of up to Rs.50 lakh (for small and medium taxpayers) and any disputed income of Rs.10 lakh can approach this committee under section 245MA. It will prevent new disputes and settle the issue at the initial stage.
  • National Faceless Income Tax Appellate Tribunal Centre:
    Provision is made for faceless proceedings before the Income Tax Appellate Tribunal (ITAT) in a jurisdiction less manner. It will reduce the cost of compliance for taxpayers, and increase transparency in the disposal of appeals. Further, it will also help achieve even distribution of work in different benches and ensure efficient administration.
  • Tax incentives to startups:
    The tax holiday for startups has been extended by one more year up to 31st March 2022.
  • Relaxations to NRI:
    There is a proposal to notify rules for removing hardship for double taxation.
  • Pre-filing of returns to be forefront:
    Pre-filling will be allowed for salary, tax payments, TDS, etc. Further, details of capital gains from listed securities, dividend income, etc. will be prefilled.
  • Advance Tax on dividend income:
    Advance tax will henceforth be applicable on dividend income only after its declaration. Tax holidays are proposed for aircraft leasing and rental companies.
  • Disallowance of PF contribution:
    In case the employee’s PF contribution was deducted but not deposited by the employer, it will not be allowed as a deduction for the employer.
  • Section 43CA stands amended:
    The stamp duty value can be up to 120% (earlier 110%) of the consideration if the transfer of “residential unit”, which means an independent housing unit is made between 12th November 2020 and 30th June 2021.
  • Amendment to Section 44ADA:
    Section 44ADA applied to all the assessees being residents in India. Now onwards, it applies only to the resident individual, Hindu Undivided Family (HUF) or a partnership firm, other than LLP.
  • Section 80EEA deduction extended:
    The affordable housing additional deduction was extended till 31st March 2022. The tax exemption has been granted for affordable rental projects.

Indirect Tax Proposals – Budget highlights 2021

  • Few of the items on which Customs Duty Rates are revised are as follows:
    • Reduced duty on copper scrap from 5% to 2.5%
    • Basic and Special additional excise duty on petrol and high-speed diesel oil (both branded and unbranded) is reduced
    • Increased duty on solar inverters from 5% to 20%
    • Raised duty on solar lanterns from 5% to 15%
    • The basic customs duty on gold and silver reduced.
    • The department will rationalise duty on textile, chemicals and other products
    • The revised rates will be applicable from 2nd February 2021 onwards.
  • New tariff items under 2404 11 00 and 2404 19 00 have been inserted in accordance with upcoming HS 2022 nomenclature. Further, NCCD of 25% is prescribed on these tariff items with effect from 1st January 2022.
  • Agriculture Infrastructure And Development Cess (AIDC) has been newly imposed on petrol and diesel at Rs2.5 and Rs.4 per litre respectively.
  • Regarding agricultural products, the customs duty is increased on cotton, silks, alcohol, etc.
  • Exemption of Social Welfare Surcharge on the value of AIDC imposed on gold and silver. Therefore, these items would attract surcharge at the normal rate, only on value plus basic customs duty.
  • The exemption on import of leather will be withdrawn as they are domestically produced.
  • A new initiative called ‘Turant Customs’ will be introduced for faceless, paperless, and contactless customs measures.
  • CGST Act was amended for several provisions as follows:
    • Section 16 amended to allow taxpayers’ claim of the input tax credit based on GSTR-2A and GSTR-2B.
    • Section 50 of the CGST Act is being amended to provide for a retrospective charge of interest on net cash liability with effect from the 1st July 2017.
    • Section 35 and 44 amended: Mandatory requirement of furnishing the GST reconciliation report signed by the specified professional is relaxed by allowing the filing of annual return on a self-certification basis. The Commissioner can exempt a class of taxpayers from the requirement of filing the annual return.

 

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