271 / 2021
Quote of the day
In this fast moving world, processes have become paramount to achieve scale and so-called success. Many a times sacrificing at the altar of process, the very people that are supposed to be serviced. I am not against systems and process. No I cannot be, coming from a governance profession. But when the people behind the process work mechanically without understanding the purpose, without being sensitive to the people being served, to the criticality of the issue, to the timelines to be met, the organisations that they represent stand to lose. Because ultimately the people being served (customers) are left dissatisfied.
“Hey, we are not mere TICKETS, we are human beings and we need to be treated likewise” exclaimed an exasperated Harsha, a first time entrepreneur. It took me a while to understand that he was unhappy with the online aggregator who had trapped him into a package for compliance services promising ‘everything under one roof’. Experiencing the services from different professionals under a single banner but operating individually across India was not the ideal solution Harsha expected. He said each time he called a ticket would be raised, his call put on hold and transferred to a new person. The same set of questions would be raised and again the call would pass on to a new person until it would either get disconnected or a standard ‘raise a query, we will resolve’ kind of response would come up. Harsha was himself a techie, deploying algorithms and what have you to offer solutions to his customers but he admitted that mere technology will not do. Technology and process must be used to offer a pleasant experience, an efficient resolution, a quick response, a proactive approach to the customer. What he missed most in the TICKET-process-approach was the lack of proactive advice, an assurance of ‘hum hain na’ (we are there), a consistency and stability that gives comfort and confidence to building a lasting business relationship. I couldn’t agree more with him when he complained that he was reduced to a mere ‘TICKET for disposal’ rather than a ‘living person to be serviced’. This disappointment and frustration is what has brought Harsha to our firm as a customer. After helping him unentangle the maze he is in, he is able to appreciate the difference in services that a boutique firm like ours brings. I am sure it is the same with most other professionals as well who care for PEOPLE rather than NUMBERS (whether ticket or revenue figures !). People are at the core of businesses, be it employees, be it vendors, be it customers, be it consumers, be it partners. While processes are required, they must be people-sensitive and agile.
I am sure each of you will have a story to share – both good and bad – about your own experiences with banks, insurance companies, retail stores, ecomm companies, educational institutions, hotels, hospitals etc. which are expanding their footprints constantly. We all have pleasant experiences too that make us go back again and again to them. Let’s create such memories in the coming years, despite the pandemic challenges that we have – the need is even more now than ever before !
It is the last day of 2021. Reading a long newsletter with multiple regulatory changes is not the best way to spend a New Year’s eve. But, can I help ? During December, there are quite a few important ones that we had to compile and place it before you – from MCA, IBC, SEBI, GST, RBI, DGFT as well as a piece of highlight from the newly enforced Direct Selling Agents Rules. Balaji, our English teacher talks about an interesting concept “Future of the past” in this 271st issue of Samhita. Check out its usage.
As we bid goodbye to 2021, let’s also disconnect from all that was negative, depressing, fearsome, uninspiring and make a fresh start with a New You embracing change in its myriad ways. Welcome 2022 with hope in the heart and spring in the step, knowing fully well that it is going to be a challenging year as well. As the motivational speaker Vivian Greene says “Life isn't about waiting for the storm to pass. It's about learning how to dance in the rain.”
For any previous issues of Samhita and the readers’ feedback, please visit https://sharadasc.com/resource-center/.
Relaxation on levy of additional fees for Annual Filing Forms
On 29.10.2021 the MCA had relaxed the levy of additional fee on filing of forms for Annual Financial Statements/ Return in respect of financial year ended 31.03.2021 ie; AOC-4, AOC-4 CFS, AOC-4 XBRL, AOC-4 Non-XBRL and MGT-7, MGT-7A up to 31.12.2021. The MCA vide its General Circular no 22/2021 dated 29.12.2021 has further relaxed the levy of additional fee up to 15.02.2022 for form AOC-4, AOC-4 CFS, AOC-4 XBRL, AOC-4 Non XBRL and up to 28.02.2022 for form MGT-7 and MGT-7A.
Net-net, the annual filing saga continues until February, 2022 !
Clarification for holding of AGM through VC up to 30.06.2022
In reference to its General Circular no. 20/2020 dated 05.05.2020 and General Circular no. 02/2021 dated 13.01.2021, MCA vide its General Circular no 19/2021 dated 08.12.2021 has clarified that companies whose AGMS are due in the year 2021 may conduct the AGM on or before 30th June, 2022 through VC or OAVM.
MCA has vide General Circular no. 21/2021 dated 14.12.2021 further clarified that companies who are planning to organize their AGM in the year 2022 for its financial year ending on or any time before 31.03.2022 to hold its AGM through VC or OAVM up to 30.06.2022
Clarification for Holding of EGM through VC up to 30.06.2022
MCA vide its General Circular no 20/2021 dated 08.12.2021 has allowed companies to conduct their Extra-Ordinary General Meetings (EGM) through Video Conference (VC) or Other Audio Visual Means (OAVM) or to transact items through postal ballot for a period up to 30th June 2022 in accordance with the framework provided in its General Circulars issued during 2020 and 2021.
ECB/TC- Transition from LIBOR to Alternative Reference Rate (ARR)
In view of the imminent discontinuance of LIBOR as benchmark rate for Foreign Currency (FCY) External Commercial Borrowing (ECB) /Trade Credit (TC), RBI has issued Circular dated 08.12.2021 mandating Authorized Dealer Banks to follow certain changes pertaining to the benchmark rates and all-in-cost ceiling. The changes are as follows:-
i) Benchmark rate for FCY ECBs and TCs- instead of 6-months LIBOR, the benchmark rate shall refer to any widely accepted interbank rate or alternative reference rate (ARR) of 6 month tenor, applicable to currency of borrowing.
ii) Change in all-in-cost ceiling for new FCY ECBs/TCs- increased by 50bps over the benchmark rates to 500bps for FCY ECBS and to 300bps for TCs
iii) One Time Adjustment in all-in-cost ceiling for existing ECBs/TCs- To enable smooth transition from LIBOR to ARR, the all-in-cost-ceiling for existing ECBs/TCs linked to LIBOR has been revised upwards by 100bps over ARR to 550 bps for ECBs and to 350bps for TCs.
The circular also clarifies that there is no change in all-in-cost benchmark and all-in-cost ceiling for INR ECBs/TCs and that the other contents of the ECB/TC Policy remain unchanged.
Legal Entity Identifier for Cross Border Transactions
Legal Entity Identifier is a 20 digit unique code allotted to legal entities such as companies or government entities participating in financial transactions worldwide. This helps to improve the quality and accuracy of financial data systems which will further aid in better risk management especially with respect to Global Financial crises.
LEI system has been introduced by RBI in a phased manner mainly for participants in Over The Counter Derivatives, Non-Derivative Markets, Large Corporate Borrowers and large value transactions in centralised payment systems.
RBI vide its circular dated 10.12.2021 has mandated Authorized Dealer Category I Banks to obtain LEI from resident entities (non-individuals) undertaking capital or current account transactions under FEMA 1999 of value Rs. 50 crore and above with effect from 01.10.2022.
AD Category I Banks may however encourage such resident entities to furnish LEI voluntarily for transactions being undertaken before 01.10.2022. Further, once an entity has obtained LEI it must be reported in all transactions of that entity irrespective of the transaction size.
Prompt Corrective Action (PCA) Framework for Non Banking Financial Companies (NBFCs)
Prompt Corrective Action (PCA) Framework was introduced by RBI for Scheduled Commercial Banks in the year 2002. The PCA Framework allows supervisory interventions at appropriate time and requires the entity under supervision to initiate and implement timely remedial measures to restore its financial health. In addition to the corrective measures, RBI can take any other action as it may deem fit. With the growth of NBFCs and its interconnectedness with other segments of financial system, RBI has come up with PCA Framework for NBFCs through its Notification dated 14.12.2021.
The categories of NBFCs to whom PCA Framework is applicable, key areas for monitoring PCA Framework, circumstances under which the NBFC can be placed under PCA Framework, Impact of PCA, Withdrawal from PCA and Mandatory & Discretionary Corrective actions have been provided in the Annexure to Notification.
Restriction on storage of actual card data [i.e. Card-on-File (COF)]
RBI vide its Circular dated 17.03.2020 had imposed prohibition on storage of card data (COF) by the authorised non bank payment aggregators and merchants on-boarded by them from 30.06.2021 and upon receipt of various representations, the same was extended to 31.12.2021. RBI vide its circular dated 23.12.2021 has now extended the timeline for storing COF till 30.06.2022.
RBI permitted Card on File Tokenisation vide its Circular dated 07.09.2021. Under this mechanism of tokenisation, the sensitive card data would be replaced by random numbers. In the RBI circular dated 23.12.2021 RBI has further clarified that industry stakeholders may use any other mechanism in addition to tokenisation for transactions that currently involve/requires storage of card data.
Safe custody of digital tokens, documents, scrips etc.
DGFT has issued Trade Notice dated 26.11.2021 providing guidelines to members of trade and industry especially the Exporters and Importers for ensuring secured online or digital transactions. The notice particularly emphasizes on the exporters to check at regular intervals, whether the duty credit scrips are accounted for and reflected in their online module, if such scrips have not been transferred or utilized by them.
In addition to above, usage of strong password, exercise of caution while sharing sensitive data, usage of secure WIFI connection etc have also been advised to the members of trade & industry.
Electronic Filing of Registration Cum Membership Certificate (RCMC)
DGFT has introduced a common digital platform for issuing registration cum membership certificate (RCMC) or registration certificate (RC) and this platform will be the single point of access for all exporters/importers and issuing agencies.
The Trade Notice dated 30.11.2021 states that all applications whether for Fresh/Amendment/Renewal of RCMC/RC may be submitted on the aforesaid online portal w.e.f 06.12.2021. Hence it is not mandatory for Exporters to make use of the common digital platform. Direct submission to issuing agency and issuance of RCMC/RC by them under existing system may continue up to 28.02.2022 or until further orders of the DGFT. Therefore currently it is a transition period where both the systems i.e online as well as direct submission will run in parallel.
The online submissions can be made by the Exporter using DSC or Aadhar and no separate registration is required for already registered Exporters/Importers as they can use existing login credentials for availing RCMC/RC services online.
Extension of timeline for conducting Annual Meeting and other meetings for REITs and InvITs through VC
SEBI had permitted conducting of Annual Meetings and other meetings of unitholders of REITs and InvITs through VC or OAVM till 31.12.2021 and 30.06.2021 respectively. Based on representations received and with reference to MCA circular dated 08.12.2021, SEBI has decided to extend timeline for holding Annual Meetings and other meetings of unitholders of REITs and InvITs through VC or OAVM till 30.06.2022.
REITs/ InvITs shall ensure that the procedure prescribed in Annexure-I of SEBI circular no. SEBI/HO/DDHS/DDHS/CIR/P/2020/102 dated June 22, 2020 is complied with for all such meetings.
Publishing Investor Charter and Disclosure of Complaints
SEBI has issued 11 circulars during the period 26.11.2021 to 17.12.2021 each of them addressed to different intermediaries of the capital market such as Registrar and Share Transfer Agents (RTAs), Merchant Bankers (MBs), Debenture Trustees (DTs) etc. These circulars emphasises mainly on two aspects:-
Dissemination of Investor Charter prepared by SEBI for each such category of intermediary with an intention to promote awareness among Investors.
Disclosure of data on complaints periodically as specified in respective circular with a view to bring out transparency in the redressal of investor grievances by the concerned intermediaries.
All the circulars are effective from 01.01.2022. The Investor Charter prepared by SEBI to be disseminated by the intermediaries and their respective associations (wherever applicable) and the format for disclosure of complaints has been provided as Annexure to the respective Circular.
The link to aforementioned 11 circulars is given below:-
SEBI Circular to Registrar & Share Transfer Agents
SEBI Circular to Merchant Bankers for issuance in primary markets by REITs and InvITs
SEBI Circular to Debenture Trustees
SEBI Circular to Stock Brokers
SEBI Circular to Alternate Investment Funds
SEBI Circular to Mutual Funds
SEBI Circular to Portfolio Managers
SEBI Circular to Research Analysts
SEBI Circular to Investment Advisers
SEBI Circular to Merchant Bankers in connection with Private Placement of units by InvITs
SEBI Circular to Custodians and Designated Depository Participants
Revised Penal provisions for Non-Compliance of Continual Disclosures
Through its Circular dated 13.11.2020, SEBI had brought out a uniform structure for levying of fines and taking action for non-compliance of continuous disclosure requirements by the issuers of Non-Convertible Securities (NCSs) and Commercial Papers (CPs). On 29.12.2021 SEBI has released a revised circular (effective for due dates of compliance falling on or after 01.02.2022 ) in supersession of the earlier one. The Annexure to the circulars provides for fines applicable for various non compliances on per day/instance/ ISIN basis.
Guidelines for Recommendation of IP to acts as IRPs, Liquidators, RPs and Bankruptcy Trustee
The process of identification of eligible Insolvency Professional (IP) and recommendation of the same to the Adjudicating Authority (AA) by the Insolvency & Bankruptcy Board of India ( Board) as required in various instances of Corporate or Individual Insolvency cases governed by the Insolvency & Bankruptcy Code has been affected by administrative delays. With a view to streamline the process, the Board has released new Guidelines which shall come into effect from 01.01.2022 and are in supersession of earlier Guidelines [Insolvency Professionals to act as Interim Resolution Professionals, Liquidators, Resolution Professionals and Bankruptcy Trustee (Recommendation) Guidelines, 2021] issued on June 1, 2021..
Previously, the Board has been creating Panel of IP only for appointment as IRP or Liquidator and there have been instances where the Hon’ble NCLAT has upheld that appointment of IRP or Liquidator by the AA from such Panel is tantamount to recommendation by the Board to AA. (Sandeep Kumar Gupta, Resolution Professional Vs. Stewarts & Lloyds of India Ltd. & Anr.,)
The new guidelines provide for creation of Panel of IPs by the Board which will in turn be shared to the AA (NCLT and DRT) and the AA will have the discretion to select IP from the said Panel for appointment as Interim Resolution Professionals (IRPs), Liquidator, Resolution Professionals (RPs) or Bankruptcy Trustee (BT) as the case may be.
These Panels will have zone wise list of IPs and will be replaced every 6 months. Process for inclusion of IP, manner of submitting Expression of Interest, obligations of IP etc has been covered in the Guidelines.
Online Educational Course by IPAs and RVOs- valid till 31.03.2022
In the wake of Covid-19, the IBBI had released guidelines on 10th July 2020 permitting delivery of pre-registration Educational course and Continuing professional education courses for Insolvency Professionals conducted by Insolvency Professional Agencies (IPAs) and educational courses and courses for continuing education applicable for Valuer members of Registered Valuer Organizations ( RVOs) in online mode till 31.03.2021. The permission was extended from time to time.
IBBI has now extended the validity of Online Delivery of said courses till 31st March, 2022.
Recognition to Company Secretaries in the Direct Selling segment
The Department of Consumer Affairs under the Ministry of Consumer Affairs, Food & Public Distribution has notified the Consumer Protection (Direct Selling) Rules, 2021 under the Consumer Protection Act, 2019 (“the Act”) on 28.12.2021. As the name of the Rules suggest, the intent of these rules is mainly to protect the consumers of products and services being sold by the Direct Selling Entities (DSE) and the Direct Sellers. The Rules cast several responsibilities on the Direct Selling entities and the Direct Sellers including a prohibition to promote Pyramid Scheme and Money Circulation Scheme. This will aid in strengthening the framework of genuine DSEs in the market and discourage others who have been operating under the guise of DSE but defrauding the public through Pyramid Schemes or Money Circulation Schemes.
Among other requirements under these Rules, the obligations cast upon the DSEs under Rule 5 are pertinent to note. One such obligation as per Rule 5(1)(d) is to maintain a proper and updated website. The website shall consist of details and documents specified in the Rule 4 and the self- declaration required under Rule 5(1)(c) that it has complied with the provisions of these rules and that it is not involved in any Pyramid Scheme or Money Circulation Scheme. Further as per Rule 5(1)(g), all such information provided by the DSE on its website is required to be duly certified by a Company Secretary.
Rule 5(8) of these Rules also require the DSEs to appoint a Nodal Officer who shall be responsible for ensuring compliance under the Consumer Protection Act, 2019 as well as any other law for the time being in force.
Said Rules must be complied within 90 days from the date of its publication in Official Gazette.
Mandatory Aadhaar verification
Aadhaar verification is mandatory for the following cases with effect from 01.01.2022 :-
For filing of application for revocation of cancellation of registration in FORM GST REG- 21 under Rule 23
For filing of refund application in FORM RFD-01 under rule 89
For refund under rule 96 of the integrated tax paid on goods exported out of India
Certain provisions effective from 01.01.2022
Government has notified Section 16(2)(aa) of the CGST Act 2017 which will disallow the Input Tax Credit which is not available in GSTR-2B of the buyer. The said Section will come into force w.e.f. 1st January 2022
Amendment of Section 7: Amendment in the GST law has been introduced by way of inserting clause (aa) to Sec. 7(1) of the CGST Act, 2017 retrospectively (w.e.f. 1.7.2017) that deals with the scope of supply chargeable to tax to the effect that the activities or transactions, by a person, other than an individual, to its members or constituents or vice-versa, for consideration shall be included in the scope of supply and hence shall be leviable to tax ( Applicable to clubs / associations etc.)
Sec. 73/74 of the CGST Act, 2017 grants an option to conclude the proceedings for recovery subject to making the stipulated payment of the tax/interest/penalty within the stipulated time. Clause (ii) of the Explanation 1 to Sec. 74 (that is also made applicable to Sec. 73) clarifies that if the proceedings against the main person are concluded, then proceedings against all persons in respect of penalty (including penalty imposed for E-way bill violations u/s 129 and 130) shall also deem to be concluded. Now the amendment provides that the penalty imposed for E-way bill violations u/s 129 and 130 shall not be deemed to be concluded under the proceedings initiated u/s 73 or 74. Therefore w.e.f. 01.01.2022 the proceedings initiated u/s 129 & 130 for E-way bill violations shall be independent proceedings and closure of parallel proceedings u/s 73 or 74 (in respect of any person including the subject person) shall not result in the deemed closure of the proceedings initiated u/s 129 & 130.
W.e.f. 01.01.2022 the term “self-assessed tax” under Explanation to Sec. 75 of the CGST Act, 2017 shall include the tax payable on supplies in respect of which the details have been furnished by the taxpayer in GSTR 1 but the same has not been included in the GSTR 3B and hence not paid. The aforesaid amendment shall allow the department to directly initiate the recovery action as regards the said self-assessed liability. Situations wherein errors have been committed in GSTR 1 (that can be rectified only at the time of filing the next GSTR 1) that results in undue reporting of excess liability are required to be excluded from the said definition as law duly permits rectification of GSTR 1.
Provisional attachment u/s 83 of the CGST Act, 2017 can be undertaken by the department only during the pendency of the stipulated proceedings. In other words, provisional attachment cannot be undertaken if the stipulated proceedings are not pending .Now w.e.f. 01.01.2022 Sec. 83(1) is substituted to the effect that the provisional attachment can be undertaken after the initiation of any proceeding under Chapter XII, Chapter XIV or Chapter XV if the Commissioner is of the opinion that the same is necessary to protect the revenue.
In the context of filing of the first appeals (Commissioner), presently Sec. 107(6) of the CGST Act, 2017 provides for making a pre-deposit of 10% of the disputed tax amount for filing the appeal and staying the recovery. Now an amendment has been made in the context of the orders passed levying penalty u/s 129(3) for E-way bill violations to provide that the quantum of the pre-deposit in such cases shall be equal to 25% of the penalty ordered to be paid.
Amendment u/s 129(6) completely de-links the detention/seizure provisions u/s 129 with confiscation provisions u/s 130. Further, the entire quantum to be paid u/s 129 is in the nature of penalty as the applicable tax will stand collected u/s 73/74 if not paid. Also, transporter is now given an option to seek release of conveyance on making the payment wherein the maximum amount shall be Rs. 1,00,000/- (parallel payment also to be made under SGST or double the amount specified in the above table under IGST).
An amendment has been made u/s 130(2) to provide that the amount of fine payable by the person in lieu of confiscation shall be as the officer thinks fit but shall not be less than the penalty that is equal to the tax payable on the given goods. However such fine shall not exceed the market value of the goods less the tax chargeable thereon.
Calling for information :Presently Sec. 151 of the CGST Act, 2017 grants power to the Commissioner to issue a notification to collect statistics relating to any matter connected with GST. Further, it also grants power to call upon the concerned persons to furnish the requisite information/returns in respect of the statistics that are to be collected. With effect from 01.01.2022 the provisions are completely recast to provide a general power to the Commissioner to issue an order and direct any person to furnish information relating to any matter connected with GST within such time, in such form, and in such manner, as may be specified therein.
Presently Sec. 152(1) of the CGST Act, 2017 provides that information in respect of any individual return or part thereof obtained by virtue of Sec. 150 (furnishing of information return by specified authorities such as income tax, banks, etc.) or Sec. 151 (power to seek information related to any matter under GST) cannot be published identifying the concerned person without the consent of the said person or cannot be used for any proceedings. Now w.e.f. 01.01.2022 the said provisions shall apply in respect of any information gathered u/s 150 or 151 and not limited to only information in respect of any individual return or part thereof. Further, the information so obtained can now be used for any proceedings under the law but only after giving an opportunity of being heard to the concerned person.
Restaurant service through e-commerce operators
Clarification regarding modalities of compliance to the GST laws in respect of supply of restaurant service through e-commerce operators (ECO) have been provided in the CBIC circular issued on 17.12.2021