Govt wants early warning system on shell companies

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Qualified accounts can be flagged on the ministry’s portal, thereby, helping regulators to keep a check on suspicious entities

The ministry of corporate affairs (MCA) says work has begun for an “early warning system” regarding shell companies.

 

The term is used to refer to a company without active business operations or much of assets. This by itself isn’t illegitimate but they could be used as a manoeuvre for financial operations of a suspect or illegitimate nature.

 

Currently, there is no way to check shell companies systemically, an official said. Chartered accountants (CAs) do come out with qualified accounts of such companies but these come in a random way on the ministry’s MCA21 portal. Qualified accounts refer to bits of information about which CAs have doubts or disagreement with the audited entity’s management.

 

After the hoped-for early warning system comes, qualified accounts would be flagged on the ministry’s portal, helping it and other regulators to check on such entities. “We are yet to work out the nitty gritty of this system but are on the job,” another official said.

graphHe said this would do away with the current system of random inspections to identify such companies. The portal will have filings by CAs in such a way that regulators will be alerted, he said.

 

Earlier, minister of state for corporate affairs P P Chaudhary had said the government would try to use the information technology tool of artificial intelligence in this regard.

 

CAs told Business Standard that an early warning system by itself wouldn’t change things by much. There should also be stringent norms to make auditors more independent. One of them said it is a company’s promoters who appoint the auditor, which means the latter does not retain the independence to openly report facts. So, a CA’s appointment would need to move away from promoters.

 

The ministry had recently issued rules to limit the number of subsidiaries a company may have — no more than two layers. This will apply prospectively but existing companies have to disclose details of their entire list of subsidiaries to the registrar of companies within 150 days. Banks and insurance companies are excluded from this rule.

 

With no limit on the number of subsidiaries, regulators found it difficult to track illicit transactions.

 

Source: Business Standard

200,000 more directors disqualified for holding posts in defaulting companies

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The govt has struck off more than 200,000 firms that have not complied with the provision of the law from the list maintained by the RoC and frozen their bank accounts to check any siphoning off of funds.

The corporate affairs ministry has disqualified another 200,000 directors for holding posts in defaulting companies that have not filed their financial returns for the last three years or more, taking the total number to over 300,000, while cancelling the registration of another 10,000 companies.

These directors won’t be able to hold board seats in other companies as well and may have to resign soon from them, potentially impacting other firms as well.

While the current law does not provide for any appeal, the government is thinking of exercising “the review power to take any such plea into consideration,” PP Chaudhary, minister of state for corporate affairs, told ET. “By operation of law, these directors are disqualified but we have to see under what provision of law we can examine this. If we need to frame a rule we will do it.”

According to Section 167 of the Companies Act, a director is disqualified automatically from all other posts of director once barred under Section 164, said Chaudhary, a lawyer by profession.

200,000 more directors disqualified for holding posts in defaulting companies

The government has struck off more than 200,000 firms that have not complied with the provision of the law from the list maintained by the Registrar of Companies and frozen their bank accounts to check any siphoning off of funds.

“This exercise is part of demonetisation. No one had the guts to stop all this till now. It will prove a catalyst for the Indian economy,” said the minister of state, who took over this responsibility after the recent reshuffle. He said the money trail will be traced after data mining of these companies.

 

The government will prioritise those cases where there is evidence of a large movement of cash. He rejected the criticism that the action was retrospective in nature.

“Law has not been retrospective. Companies had two years to file returns… there was healing time,” the minister of state said. So far the shell firm chase has been limited to defaulting firms that have not filed their financial returns for the last three years or more but the government will soon go after compliant firms as well to check their holding companies structures and fund flows.

Chaudhary said the intent is to restore trust in the corporate structure and also improve ease of doing business in the country.

“We do not want to create any terror. Trust in the corporate structure is gone and we want to increase the investor confidence, not interfere in the corporate structure,” Chaudhary said.The government wants to promote ease of doing business to ensure investors that their money is safe in India, he added.

“This exercise has been triggered due to governance. We have shown scale and speed in an unparalleled way in the way we have acted against these companies and directors,” Chaudhary said.

Last week, the government made public the names of 55,000 directors who were disqualified under Section 164 (2) (A) of the Companies Act. The list included the names of prominent politicians including former Jammu and Kashmir chief minister Omar Abdullah and Malayalam filmstar Mohanlal among others.While the government will not impose any penalty on the directors of government-owned companies that figured in the list of defaulters, those in private firms will have to resign from other board seats and won’t be eligible for reappointment for up to five years.

The corporate affairs ministry will also look into these companies to identify shell companies to see if they have been used for money laundering or any other illegal activity. “We need to find who the shell company’s real beneficiary is… It could be in the name of the cook or a driver. We are taking stock of the money in these companies pre and post demonetisation,” Chaudhary said.

While spotting defaulting companies is an ongoing process, Chaudhary said that, using artificial intelligence, the government will sift out the shell companies from among those that are compliant with regulations and also create an early warning system. “The system will trigger alerts every time we see unusual activity taking place in a company. It will also help us find out the beneficial owner of the shell companies,” he said.

I-T department goes after defunct companies for tax frauds

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It’s well within the law and powers of the tax office to review an old tax assessment if there is suspicion of tax fraud.

The tax office is reopening old records of many companies that have wound up and no longer exist in the books of the government — something the revenue department has rarely done in the past.

Former directors of such closely-held private companies, which have received tax notices along with the official liquidators, fear they could be suddenly saddled with unforeseen liabilities. While opening new private companies and shutting down old ones have often been a ploy to move unaccounted money, some of the companies set up to carry out bona fide businesses which subsequently failed have also come under the glare of the income tax department.

Till now, the department has typically stayed away from companies to which it had issued non-objection certificate prior to the winding process. But, it’s well within the law and powers of the tax office to review an old tax assessment if there is suspicion of tax fraud.”In case of private limited companies, the liability of directors continues even after liquidation. Here, these ex directors have to prove that any non-recovery of tax is not due to any gross neglect, malfeasance, or breach of duty on their part in relation to the affairs of the company,” said senior chartered accountant Dilip Lakhani.

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“But such reopening in case of companies which have been liquidated or struck off from the RoC (Registrar of Companies) records should be done very selectively — may be only in situations of tax fraud and not situations of plain vanilla income having escaped assessment,” said Mitil Chokshi, senior partner at Chokshi & Chokshi LLP.

The liquidator of a company going for ‘voluntary liquidation’ can approach the tax office to ascertain the outstanding tax liability, and set aside the amount before distributing the proceeds from asset sale to creditors and shareholders.

But even in such cases the department can (though rarely done) reopen old assessments if it later suspects fraud or fund diversion. The no-objection certificate, according to a senior tax official, is simply based on the outstanding tax claim on that date. According to him, if the department has to look into serious irregularities, then no NoC can be issued. “The provisions do provide powers to assessing officers to re-open and issue such notices,” said Chokshi.

“But is it really fair to re-assess based on some possible income having escaped assessment, especially when the companies are no longer in existence?” One of the closed companies to have received notice for reopening assessment was an outsourcing arm of a US bank. Some of the liquidated entities were engaged in marketing, realty and infrastructure development.

Significantly, even if the tax amount (approved by the I-T department) is set aside in the course of liquidation, former directors can be questioned if the company is ‘private limited’ in character. The companies have received reopening notices for assessment years 2011-12 and 2012-13.

The taxman can go back up to six years in reopening of old assessments. However, in covering undisclosed foreign assets — overseas bank accounts, properties etc — the I-T department can rake up 16-year old transactions in probing tax evasion. In the US, no-objection certificate from the Internal Revenue Service (the national tax collection agency) is required before final liquidation.

There are no provisions for reopening unless a tax fraud has been identified. According to another tax practitioner, while such a notice may be stayed by moving the high courts, the question is who will do it?”Liquidators were appointed for a limited period; erstwhile Indian directors may not have the authority, while foreign promoters and directors are least interested,” said the person.

Bankruptcy board to register 100 more insolvency professionals to add to 940

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The Insolvency and Bankruptcy Board of India (IBBI), which has so far registered 940 insolvency professionals (IPs), is in the process of granting registration to about 100 more such professionals, according to its whole time member Navrang Saini.

The Insolvency and Bankruptcy Board of India (IBBI), which has so far registered 940 insolvency professionals (IPs), is in the process of granting registration to about 100 more such professionals, according to its whole time member Navrang Saini. “It is a continuous process, the applications come to us through insolvency professionals agencies, we examine the applications and carry out due diligence and then we grant registration to them,” said Saini while addressing an Assocham conference on IBC and RERA. The IBBI had received three applications for registration as information utility (IU) out of which two applicants have been granted in-principle approval and it is in the process of examining the third one.

“We are in the process of giving approval to one of the IU, we may give the final registration if they meet all criteria, we have already given in-principal approval to two IUs and out of that I hope one will start functioning by end of this month, the third application is still under examination with the board,” Saini said.

As on September 12, 3,437 cases have been filed out of which 354 cases have already been admitted by the various benches of NCLT. Out of these, 337 have already been rejected. “To deal with such a large number of insolvency related matters, we need institutional infrastructure,” he said.

Rules for registered valuers are to be made by ministry of corporate affairs which is in the process of notifying and issuing the same.

The board has already invited suggestions on the regulations which have already been notified by the board and it will receive the suggestions up to December 31 and come out with the amendments based on the suggestions received and advisory committees constituted for this purpose by March 31, 2018.

Source: Financial Express

Centre asks banks to restrict accounts of 2.09 lakh firms

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The finance ministry has advised all banks to take immediate steps to restrict transactions in bank accounts of more than 2.09 lakh companies, whose names have been struck off the Register of Companies.

Banks have also been advised to step up due diligence while dealing with all firms in general and been alerted that even if a firm is ‘active’ in the corporate affairs ministry database, it should be seen with ‘suspicion’ if it has failed to file statements or returns.

‘Not compliant’

“…Prima facie, the company is not complying with its mandatory statutory obligations to file this vital information for availability to its stakeholders,” the finance ministry has reasoned.

On July 1, Prime Minister Narendra Modi had first revealed the government’s decision to cancel the registrations of one lakh companies that had suspicious and questionable operations, identified on the basis of data mined from the deposit of bank notes following last November’s demonetisation of Rs.500 and Rs.1,000 notes.

The PM had promised more action would follow on two lakh similar firms and 38,000 shell companies. Tuesday’s statement reveals that progress has been made in scrapping another 1,09,032 firms under the Companies Act since then.

‘Directors barred’

“The existing directors and authorised signatories of such struck-off companies will now become ex-directors or ex-authorised signatories. These individuals will therefore not be able to operate bank accounts of such companies till such companies are legally restored under Section 252 of the Companies Act by an order of the National Company Law Tribunal,” the ministry said, disclosing ‘stepped up decisive action’ against errant companies.

“Since such ‘struck off’ companies have ceased to exist, action has been initiated to restrict the operation of [their] bank accounts. The Department of Financial Services has, through the Indian Banks Association, advised all banks … [to] take immediate steps to put restrictions on bank accounts of such struck-off companies,” the ministry said, adding that the list of firms had been put up on the corporate affairs ministry’s website.

In addition, the statement said that banks had been advised to go in for ‘enhanced diligence while dealing with companies in general.’

“A company… even having an active status on the website of the Ministry of Corporate Affairs but defaulting in filing of its due financial statement/s or annual return/s in particular of charges on its assets on the secured loan should be seen with suspicion…” the ministry has told banks.

Source: The Hindu

Attack on shell firms: MCA issues notices to errant NBFCs

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In yet another attempt to crack the whip on shell companies, the Ministry of Corporate Affairs has issued notices to companies which were supposed to act as non-banking financial companies (NBFCs) but have not registered with the Reserve Bank of India (RBI).

The ministry has taken this action to seek an explanation from these companies on their businesses within 10 days, a source said

If companies are found to be in the non-banking financial activities such as lending, investment or deposit acceptance as their principal business, without the RBI registration, the central bank can impose a penalty or even prosecute them in a court of law.

A similar attempt was undertaken by the RBI a few years back. In 2013, the RBI had clamped down on unregistered NBFCs after the Saradha scam. The central bank undertook such an exercise even in 2014. The pan-India figure of such entities back then was around 70,000. The number of non-registered NBFCs has risen since then, an official said.

The Securities & Exchange Board of India (Sebi) had recently put 331 companies on heightened surveillance. It also delisted entities it suspected of being shell companies. The Centre, too, has frozen bank accounts of 200,000 companies after these were struck off by Registrar of Companies. The directors of these firms were also banned.

The Centre and its agencies are not only taking corrective action but are also initiating pre-emptive steps to check the menace of dormant companies. It is working with Sebi to get all public unlisted companies to issue shares online. Experts said this would ensure greater transparency in these companies and bring down litigation.

After demonetisation, a number of shell companies were found to be operating with the same address, not directly contributing to the mainstream economy. It was then that the government sprung into action.

An NBFC is a company registered under the Companies Act, 1956, engaged in the business of loans and advances among other functions. It is also a company which receives deposits under any scheme or arrangement in one lump sum or in installments by way of contributions or in any other manner, as its principal business.

 

Source: Business Standard