253 / 2021
Quote of the day
"Constitution is not a mere lawyer's document. It is a vehicle of life & it's spirit is always the spirit of age."
- BR Ambedkar
In May, 2020, in the peak of Corona, a 70 year old non-descript woman called Kamalamma from Mysuru made headlines. Social media was agog with her selfless gesture of donating Rs. 500 out of her measly monthly pension of Rs. 600 towards a food distribution programme. As is the nature of Mysoreans, she handed over the amount very sheepishly and apologetically to the volunteers group and requested them to accept her humble contribution. She made headlines all over. Many of you will recall the cartoon that depicted the generous Mother on top of the Corona donors table, way above the corporate czars – George Soros, Azim Premji, Bill Gates & Jack Dorsey. Why not when she had donated 90% of her earnings ? At a time when she herself was eating out of distributed food, having lost her house-maid job thanks to Corona. That 500 rupees was truly a precious, premium donation indeed ! Over the last 9 months, many people across the world have responded in different ways demonstrating their humaneness.
This reminds me of something I read years ago, post the 2011 Fukushima power plant disaster caused due to the earthquake and tsunami. To keep the emotions intact, I am reproducing what was written by a policeman Ha Minh Tanh about a 9 year old Japanese boy and his generosity, a true lesson in sacrifice:
“Brother, there was a really moving incident. It involves a little Japanese boy who taught an adult like me a lesson on how to behave like a human being.
Last night, I was sent to a little grammar school to help a charity organisation distribute food to the refugees. It was a long line that snaked this way and that and I saw a little boy around 9 years old. He was wearing a T-shirt and a pair of shorts.
It was getting very cold and the boy was at the very end of the line. I was worried that by the time his turn came there wouldn't be any food left. So I spoke to him. He said he was at school when the earthquake happened. His father worked nearby and was driving to the school. The boy was on the third floor balcony when he saw the tsunami sweep his father's car away.
I asked him about his mother. He said his house is right by the beach and that his mother and little sister probably didn't make it. He turned his head and wiped his tears when I asked about his relatives.
The boy was shivering so I took off my police jacket and put it on him. That's when my bag of food ration fell out. I picked it up and gave it to him. "When it comes to your turn, they might run out of food. So here's my portion. I already ate. Why don't you eat it?"
The boy took my food and bowed. I thought he would eat it right away, but he didn't. He took the bag of food, went up to where the line ended and put it where all the food was waiting to be distributed.
I was shocked. I asked him why he didn't eat it and instead added it to the food pile. He answered: "Because I see a lot more people hungrier than I am. If I put it there, then they will distribute the food equally."
When I heard that I turned away so that people wouldn't see me cry.
A society that can produce a 9-year-old who understands the concept of sacrifice for the greater good must be a great society, a great people.”
Both Kamalamma and the 9 year old Japanese boy demonstrated what is CSR – no, not Corporate Social Responsibility but Citizen Social Responsibility !! I am sure they knew nothing of such jargons constructed by people like you and me. It came straight out of their heart and into the hands of the people. There was no compulsion, no mandate, no direction, no nothing. It was a genuine response to the need of the hour made way beyond their means. With Republic Day just behind us, it is a good time to remember our duties under the constitution as well. One of them is “Spirit of common brotherhood”.
Talking of our great nation, this is what the well-known American author Mark Twain had to say “India is, the cradle of the human race, the birthplace of human speech, the mother of history, the grandmother of legend, and the great grandmother of tradition. Our most valuable and most instructive materials in the history of man are treasured up in India only.”
We have mothered many more firsts, amongst them being the Secretarial Standards (for board meetings and shareholder meetings laid down by my alma mater The Institute of Company Secretaries of India in 2015) and mandatory CSR (Corporate Social Responsibility) provisions. Yes, India is the first country to have Secretarial Standards and CSR for corporates. Introduced in 2014, CSR has journeyed its way through the years, survived the COVID-19 and evolved. You will agree when you read the article titled “CSR provisions overhauled” that comprehensively captures the changes brought about by the Companies Amendment Act, 2019 and CSR Amendment Rules, 2021. It is presented as a ‘know-your-CSR’, one-stop-document integrating the existing law with the new changes made effective from 22nd Jan, 2021 and 1st April, 2021.
While CSR amendments is the centre-piece of Samhita 253rd issue, MCA has relented after lot of representations, requests, protests and outcries. Additional 15 days time has been granted for filing audited financial statements (in form AOC-4) without additional fee of Rs. 100 per day. Only those (read professionals) who have suffered the trauma of staring at the weird messages of MCA portal and struggling to push the forms since December, 2020 can understand what this short relaxation means. Apart from the MCA updates, there is a round up of changes made by other sister ministries as well. The 2 useful tips about Business English (how to say thank you and what general mistakes to avoid in emails) are a must read under “Let’s Excel in English” feature. For any previous issues of Samhita and the readers’ feedback, please visit https://www.sharadasc.com/resource-center/.
MCA Notifications and Updates
CSR provisions overhauled
It may be recalled that several changes to CSR were proposed in the draft CSR Rules, which we had carried in our Samhita #245/2020 issue. Based on feedback received and further deliberation, MCA has notified Companies (CSR) Amendment Rules, 2021 and certain provisions of section 135 of the Companies Act, 2013. Some of them are effective 22.01.2021 (the date of notification) while the rest are effective from 01.04.2021.
As analysed by Mr. Sreenivasan Narasimhan, Associate, through the attached FAQs CSR Activity is getting more and more regulated. Corporates are required to take this more seriously and either implement the projects as per obligation or else transfer the unspent amount to a designated account. There is a clear shift from “comply or explain” to “perform or penalise
Relaxation of additional fee for Form AOC-4 till 15.02.2021
MCA, vide notification 29.01.2021 has granted a 15 day relaxation on the levy of additional fee for Forms AOC-4, AOC-4 (CFS) & AOC-4 (XBRL) for companies having FY ending 31.03.2020. The forms can be filed upto 15.02.21 on payment of only the normal fee.
A rather short extension, nevertheless a sigh of relief and a breather for professionals toiling to complete the filings amongst continued technical glitches!
Scheme for Condonation of Delay for Companies restored between 01.12.2020 & 31.12.2020
Any person aggrieved by the order of RoC notifying a company struck-off is allowed to file an appeal with the NCLT (u/s 252) for restoration of it’s name in the Register of Companies. Any such order issued by the Tribunal for restoration of the Company, requires the company to complete pending filings.
Such companies who have been issued an NCLT order between 01.12.2020 & 31.12.2020 can take advantage of the Scheme for Condonation of Delay and complete the filings without having to pay any additional fee. The Scheme shall take effect on 01.02.2021 and shall be available till 31.03.2021. During this period all e-forms (except Form SH-7 (Increase in authorised share capital) and charge related forms CHG-1, CHG-4 and CHG-9) can be filed on payment of only normal fee i.e. the additional fee shall be forgone, without any immunity from civil/criminal proceedings.
Despite continued efforts of professionals, CFSS was not extended! However, a sigh of relief has been granted for companies restored during a rather short 1 month period (01.12.2020-31.12.2020) to complete filings under this Scheme on payment of just normal fee as the filing fee which could otherwise run into a few hundred thousand if additional fee was applicable.
Commencement date for specific sections under Companies (Amendment) Act, 2020
MCA has notified 22.01.2021 as the date on which various sections under Companies (Amendment) Act, 2020 shall come into effect. It may be recalled that the Companies (Amendment) Act, 2020, was notified on 28.09.2020, decriminalising many offences. The sections so notified include:
Conversion of public company into private company – Rules Amended
MCA vide Notification dated 25.10.2021, has amended the Companies (Incorporation) Rules, 2014 relating to conversion of public company into private company:
Deemed approval in case no order for approval / re-submission / rejection has been explicitly made by the Regional Director within the stipulated period of 30 days – Removed
In case where no consensus is received as on any objection for conversion, the RD may approve the conversion, if he is satisfied that the conversion would not be against the interests of the company or is not being made with a view to contravene or to avoid complying with the provisions of the Act. Earlier in such circumstances the RD could only reject the order – Inserted
The RD is required to –
Reject the application for conversion within 30 days, recording reasons in writing, if the applicant doesn’t furnish required information within 15 days in eForm RD-GNL-5
Record the consensus arrived during the hearing of objections, if any and pass an order recording the reasons for approval/rejection within 30 days from the date of hearing
Option to extend period of reserved name – Available from 26.01.2021
The extension period for name reservation of companies at the time of incorporation is subject to fee as mentioned below:
NCLAT Chennai to function virtually w.e.f 25.01.2021
The Chennai Bench of the NCLAT shall function virtually w.e.f. 25.01.2021. Appeals against cases from NCLT at Karnataka, Tamil Nadu, Kerala, Andhra Pradesh and Telangana and Union Territories of Lakshadweep and Puducherry shall be made before NCLAT, Chennai.
Amendment to ICDR Regulations w.r.t. Rights Issue
In terms of Regulation 76 of the ICDR Regulations, an application for a Rights Issue shall be made only through ASBA facility. In view of the difficulties faced due to COVID-19 pandemic and the lock down measures, and in order to ensure that all eligible shareholders are able to apply to rights issue during such times, the issuer along with lead managers, registrar and other recognised intermediaries were allowed to institute an optional non-cash mode to accept the applications of the shareholders for Rights Issues opening until 31.12.2020.
Vide Circular dated 19.01.2021, SEBI has not extend the availability of this relaxation for all Rights issues opening until 31.03.2021.
Extension of certain relaxation w.r.t. VC/OAVM General meetings
The relaxations granted to Listed Entities w.r.t sending physical copies of annual report to shareholders and requirement of proxy for general meetings held through electronic mode, are extended till 31.12.2021.
GSTR-1 filing blocked for non-filing of GSTR-3B
Where a taxpayer fails to file GSTR-3B for two subsequent months, his GSTR-1 shall now be blocked. Earlier non filing of GSTR-3B used to result in blocking of E-way Bill facility but from now on it shall also result in blocking of GSTR-1 of the taxpayer.
Similarly, for quarterly return filers, the taxpayer failing to file GSTR-3B for the preceding quarter shall not be permitted to file GSTR-1 of subsequent quarter.