jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—18 REGISTERED NO. DL—(N)04/0007/2003—18 vlk/kkj.k EXTRAORDINARY Hkkx II — [k.M 1 PART II—Section 1 izkf/kdkj ls izdkf'kr PUBLISHED BY AUTHORITY lañ 1] ubZ fnYyh] cq/kokj] tuojh 3] 2018@ikS"k 13] 1939 ¼'kd½ No. 1] NEW DELHI, WEDNESDAY, JANUARY, 3, 2018/PAUSHA 13, 1939 (SAKA) bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA Separate paging is given to this Part in order that it may be filed as a separate compilation. MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 3rd January, 2018/Pausha 13, 1939 (Saka) The following Act of Parliament received the assent of the President on the 3rd January, 2018, and is hereby published for general information:— THE COMPANIES (AMENDMENT) ACT, 2017 NO. 1 OF 2018 [3rd January, 2018.] An Act further to amend the Companies Act, 2013. BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:— 1. (1) This Act may be called the Companies (Amendment) Act, 2017. Short title and commencement. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. 18 of 2013. 2. In section 2 of the Companies Act, 2013 (hereinafter referred to as the principal Amendment of Act),— section 2. (i) in clause (6), for the Explanation, the following Explanation shall be substituted, namely:— 'Explanation.—For the purpose of this clause,— (a) the expression "significant influence" means control of at least twenty per cent. of total voting power, or control of or participation in business decisions under an agreement; (b) the expression "joint venture" means a joint arrangement whereby the parties that have joint control of the arrangement have rights to the net assets of the arrangement;'; 2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (ii) for clause (28), the following clause shall be substituted, namely:— '(28) "Cost Accountant" means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 and 23 of 1959. who holds a valid certificate of practice under sub-section (1) of section 6 of that Act;'; (iii) in clause (30), the following proviso shall be inserted, namely:— "Provided that— (a) the instruments referred to in Chapter III-D of the Reserve Bank of India Act, 1934; and 2 of 1934. (b) such other instrument, as may be prescribed by the Central Government in consultation with the Reserve Bank of India, issued by a company, shall not be treated as debenture;"; (iv) in clause (41), in the first proviso, after the word "subsidiary", the words "or associate company" shall be inserted; (v) in clause (46), the following Explanation shall be inserted, namely:— 'Explanation.—For the purposes of this clause, the expression "company" includes any body corporate;'; (vi) clause (49) shall be omitted; (vii) in clause (51),— (a) in sub-clause (iv), the word "and" shall be omitted; (b) for sub-clause (v), the following sub-clauses shall be substituted, namely:— "(v) such other officer, not more than one level below the directors who is in whole-time employment, designated as key managerial personnel by the Board; and (vi) such other officer as may be prescribed;"; (viii) in clause (57), for the words "and securities premium account", the words ", securities premium account and debit or credit balance of profit and loss account," shall be substituted; (ix) in clause (71), in sub-clause (a), after the word "company;", the word "and" shall be inserted; (x) in clause (72), in the proviso, in clause (A), after the words “State Act”, the words “other than this Act or the previous company law” shall be inserted; (xi) in clause (76), for sub-clause (viii), the following sub-clause shall be substituted, namely:— "(viii) any body corporate which is— (A) a holding, subsidiary or an associate company of such company; (B) a subsidiary of a holding company to which it is also a subsidiary; or (C) an investing company or the venturer of the company;"; Explanation.—For the purpose of this clause, “the investing company or the venturer of a company” means a body corporate whose investment in the company would result in the company becoming an associate company of the body corporate. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3 (xii) in clause (85),— (a) in sub-clause (i), for the words "five crore rupees", the words "ten crore rupees" shall be substituted; (b) in sub-clause (ii),— (A) for the words "as per its last profit and loss account", the words "as per profit and loss account for the immediately preceding financial year" shall be substituted; (B) for the words "twenty crore rupees", the words "one hundred crore rupees" shall be substituted; (xiii) in clause (87), in sub-clause (ii), for the words “total share capital”, the words “total voting power” shall be substituted; (xiv) for clause (91), the following clause shall be substituted, namely:— '(91) "turnover" means the gross amount of revenue recognised in the profit and loss account from the sale, supply, or distribution of goods or on account of services rendered, or both, by a company during a financial year;'. 3. After section 3 of the principal Act, the following section shall be inserted, Insertion of namely:— new section 3A. "3A. If at any time the number of members of a company is reduced, in the case Members of a public company, below seven, in the case of a private company, below two, and the severally liable company carries on business for more than six months while the number of members is in certain cases. so reduced, every person who is a member of the company during the time that it so carries on business after those six months and is cognisant of the fact that it is carrying on business with less than seven members or two members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.". 4. In section 4 of the principal Act, in sub-section (5), for clause (i), the following shall Amendment be substituted, namely:— of section 4. "(i) Upon receipt of an application under sub-section (4), the Registrar may, on the basis of information and documents furnished along with the application, reserve the name for a period of twenty days from the date of approval or such other period as may be prescribed: Provided that in case of an application for reservation of name or for change of its name by an existing company, the Registrar may reserve the name for a period of sixty days from the date of approval.". 5. In section 7 of the principal Act, in sub-section (1), in item (c), for the words "an Amendment of affidavit", the words "a declaration" shall be substituted. section 7. 6. In section 12 of the principal Act,— Amendment of section 12. (i) in sub-section (1), for the words "on and from the fifteenth day of its incorporation", the words "within thirty days of its incorporation" shall be substituted; (ii) in sub-section (4), for the words "within fifteen days", the words "within thirty days" shall be substituted. 7. In section 21 of the principal Act, for the words "an officer of the company", the Amendment of words "an officer or employee of the company" shall be substituted. section 21. 8. In section 26 of the principal Act, in sub-section (1),— Amendment of section 26. (i) after the words "signed and shall", the following shall be inserted, namely:— "state such information and set out such reports on financial information as may be specified by the Securities and Exchange Board in consultation with the Central Government: 4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Provided that until the Securities and Exchange Board specifies the information and reports on financial information under this sub-section, the regulations made by the Securities and Exchange Board under the Securities and Exchange Board of India Act, 1992, in respect of such financial information or 15 of 1992. reports on financial information shall apply."; (ii) clauses (a), (b) and (d) shall be omitted. Amendment of 9. In section 35 of the principal Act, in sub-section (2), after clause (b), the following section 35. clause shall be inserted, namely:— "(c) that, as regards every misleading statement purported to be made by an expert or contained in what purports to be a copy of or an extract from a report or valuation of an expert, it was a correct and fair representation of the statement, or a correct copy of, or a correct and fair extract from, the report or valuation; and he had reasonable ground to believe and did up to the time of the issue of the prospectus believe, that the person making the statement was competent to make it and that the said person had given the consent required by sub-section (5) of section 26 to the issue of the prospectus and had not withdrawn that consent before delivery of a copy of the prospectus for registration or, to the defendant's knowledge, before allotment thereunder.". Substitution of 10. For section 42 of the principal Act, the following section shall be substituted, new section for namely:— section 42. Issue of shares '42. (1) A company may, subject to the provisions of this section, make a private on private placement of securities. placement basis. (2) A private placement shall be made only to a select group of persons who have been identified by the Board (herein referred to as "identified persons"), whose number shall not exceed fifty or such higher number as may be prescribed [excluding the qualified institutional buyers and employees of the company being offered securities under a scheme of employees stock option in terms of provisions of clause (b) of sub-section (1) of section 62], in a financial year subject to such conditions as may be prescribed. (3) A company making private placement shall issue private placement offer and application in such form and manner as may be prescribed to identified persons, whose names and addresses are recorded by the company in such manner as may be prescribed: Provided that the private placement offer and application shall not carry any right of renunciation. Explanation I.—"private placement" means any offer or invitation to subscribe or issue of securities to a select group of persons by a company (other than by way of public offer) through private placement offer-cum-application, which satisfies the conditions specified in this section. Explanation II.—"qualified institutional buyer" means the qualified institutional buyer as defined in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, as amended from time to time, made under the Securities and Exchange Board of India Act, 1992. 15 of 1992. Explanation III.—If a company, listed or unlisted, makes an offer to allot or invites subscription, or allots, or enters into an agreement to allot, securities to more than the prescribed number of persons, whether the payment for the securities has been received or not or whether the company intends to list its securities or not on any recognised stock exchange in or outside India, the same shall be deemed to be an offer to the public and shall accordingly be governed by the provisions of Part I of this Chapter. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 5 (4) Every identified person willing to subscribe to the private placement issue shall apply in the private placement and application issued to such person alongwith subscription money paid either by cheque or demand draft or other banking channel and not by cash: Provided that a company shall not utilise monies raised through private placement unless allotment is made and the return of allotment is filed with the Registrar in accordance with sub-section (8). (5) No fresh offer or invitation under this section shall be made unless the allotments with respect to any offer or invitation made earlier have been completed or that offer or invitation has been withdrawn or abandoned by the company: Provided that, subject to the maximum number of identified persons under sub-section (2), a company may, at any time, make more than one issue of securities to such class of identified persons as may be prescribed. (6) A company making an offer or invitation under this section shall allot its securities within sixty days from the date of receipt of the application money for such securities and if the company is not able to allot the securities within that period, it shall repay the application money to the subscribers within fifteen days from the expiry of sixty days and if the company fails to repay the application money within the aforesaid period, it shall be liable to repay that money with interest at the rate of twelve per cent. per annum from the expiry of the sixtieth day: Provided that monies received on application under this section shall be kept in a separate bank account in a scheduled bank and shall not be utilised for any purpose other than— (a) for adjustment against allotment of securities; or (b) for the repayment of monies where the company is unable to allot securities. (7) No company issuing securities under this section shall release any public advertisements or utilise any media, marketing or distribution channels or agents to inform the public at large about such an issue. (8) A company making any allotment of securities under this section, shall file with the Registrar a return of allotment within fifteen days from the date of the allotment in such manner as may be prescribed, including a complete list of all allottees, with their full names, addresses, number of securities allotted and such other relevant information as may be prescribed. (9) If a company defaults in filing the return of allotment within the period prescribed under sub-section (8), the company, its promoters and directors shall be liable to a penalty for each default of one thousand rupees for each day during which such default continues but not exceeding twenty-five lakh rupees. (10) Subject to sub-section (11), if a company makes an offer or accepts monies in contravention of this section, the company, its promoters and directors shall be liable for a penalty which may extend to the amount raised through the private place- ment or two crore rupees, whichever is lower, and the company shall also refund all monies with interest as specified in sub-section (6) to subscribers within a period of thirty days of the order imposing the penalty. (11) Notwithstanding anything contained in sub-section (9) and sub-section(10), any private placement issue not made in compliance of the provisions of sub-section (2) shall be deemed to be a public offer and all the provisions of this Act and the Securities Contracts (Regulation) Act, 1956 and the Securities and Exchange 42 of 1956. Board of India Act, 1992 shall be applicable.’. 15 of 1992. 6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Amendment of 11. In section 47, in sub-section (1), for the words, figures and brackets "provisions of section 47. section 43 and sub-section (2) of section 50", the words, figures and brackets "provisions of section 43, sub-section (2) of section 50 and sub-section (1) of section 188" shall be substituted. Amendment of 12. In section 53 of the principal Act,— section 53. (i) in sub-section (2), for the words "discounted price", the word "discount" shall be substituted; (ii) after sub-section (2), the following sub-section shall be inserted, namely:— "(2A) Notwithstanding anything contained in sub-sections (1) and (2), a company may issue shares at a discount to its creditors when its debt is converted into shares in pursuance of any statutory resolution plan or debt restructuring scheme in accordance with any guidelines or directions or regulations specified by the Reserve Bank of India under the Reserve Bank of India Act, 1934 or the 2 of 1934. Banking (Regulation) Act, 1949.". 10 of 1949. Amendment 13. In section 54, in sub-section (1), clause (c) shall be omitted. of section 54. Amendment of 14. In section 62 of the principal Act,— section 62. (i) in sub-section (1), in clause (c), for the words "of a registered valuer subject to such conditions as may be prescribed", the words and figures "of a registered valuer, subject to the compliance with the applicable provisions of Chapter III and any other conditions as may be prescribed" shall be substituted; (ii) for sub-section (2), the following sub-section shall be substituted, namely:— "(2) The notice referred to in sub-clause (i) of clause (a) of sub-section (1) shall be dispatched through registered post or speed post or through electronic mode or courier or any other mode having proof of delivery to all the existing shareholders at least three days before the opening of the issue.". Amendment of 15. In section 73 of the principal Act, in sub-section (2),— section 73. (i) for clause (c), the following clause shall be substituted, namely:— "(c) depositing, on or before the thirtieth day of April each year, such sum which shall not be less than twenty per cent. of the amount of its deposits maturing during the following financial year and kept in a scheduled bank in a separate bank account to be called deposit repayment reserve account;"; (ii) clause (d) shall be omitted; (iii) in clause (e), for the words "such deposits;", the following shall be substituted, namely:— "such deposits and where a default had occurred, the company made good the default and a period of five years had lapsed since the date of making good the default;". Amendment of 16. In section 74, in sub-section (1), for clause (b), the following clause shall be section 74. substituted, namely:— "(b) repay within three years from such commencement or on or before expiry of the period for which the deposits were accepted, whichever is earlier: Provided that renewal of any such deposits shall be done in accordance with the provisions of Chapter V and the rules made thereunder.". Amendment of 17. In section 76A of the principal Act,— section 76A. (a) in clause (a), for the words, “one crore rupees”, the words “one crore rupees or twice the amount of deposit accepted by the company, whichever is lower” shall be substituted; SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7 (b) in clause (b),— (i) for the words "seven years or with fine", the words "seven years and with fine" shall be substituted; (ii) the words "or with both" shall be omitted. 18. In section 77 of the principal Act, in sub-section (1), after the third proviso, the Amendment of following proviso shall be inserted, namely:— section 77. "Provided also that this section shall not apply to such charges as may be prescribed in consultation with the Reserve Bank of India.". 19. In section 78 of the principal Act, for the words and figures "register the charge Amendment of within the period specified in section 77", the words, brackets and figures "register the section 78. charge within the period of thirty days referred to in sub-section (1) of section 77" shall be substituted. 20. In section 82 of the principal Act, in sub-section (1),— Amendment of section 82. (i) the words, brackets and figures "and the provisions of sub-section (1) of section 77 shall, as far as may be, apply to an intimation given under this section" shall be omitted; (ii) the following proviso shall be inserted, namely:— "Provided that the Registrar may, on an application by the company or the charge holder, allow such intimation of payment or satisfaction to be made within a period of three hundred days of such payment or satisfaction on payment of such additional fees as may be prescribed.". 21. In section 89 of the principal Act,— Amendment of section 89. (i) in sub-section (6), the words and figures, "within the time specified under section 403" shall be omitted; (ii) in sub-section (7), for the words and figures, "under the first proviso to sub-section (1) of section 403", the word "therein", shall be substituted; (iii) after sub-section (9), the following sub-section shall be inserted, namely:— "(10) For the purposes of this section and section 90, beneficial interest in a share includes, directly or indirectly, through any contract, arrangement or otherwise, the right or entitlement of a person alone or together with any other person to— (i) exercise or cause to be exercised any or all of the rights attached to such share; or (ii) receive or participate in any dividend or other distribution in respect of such share.". 22. For section 90 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 90. '90. (1) Every individual, who acting alone or together, or through one or more Register of persons or trust, including a trust and persons resident outside India, holds beneficial significant beneficial interests, of not less than twenty-five per cent. or such other percentage as may be owners in a prescribed, in shares of a company or the right to exercise, or the actual exercising of company. significant influence or control as defined in clause (27) of section 2, over the company (herein referred to as "significant beneficial owner"), shall make a declaration to the company, specifying the nature of his interest and other particulars, in such manner 8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— and within such period of acquisition of the beneficial interest or rights and any change thereof, as may be prescribed: Provided that the Central Government may prescribe a class or classes of persons who shall not be required to make declaration under this sub-section. (2) Every company shall maintain a register of the interest declared by individuals under sub-section (1) and changes therein which shall include the name of individual, his date of birth, address, details of ownership in the company and such other details as may be prescribed. (3) The register maintained under sub-section (2) shall be open to inspection by any member of the company on payment of such fees as may be prescribed. (4) Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed. (5) A company shall give notice, in the prescribed manner, to any person (whether or not a member of the company) whom the company knows or has reasonable cause to believe— (a) to be a significant beneficial owner of the company; (b) to be having knowledge of the identity of a significant beneficial owner or another person likely to have such knowledge; or (c) to have been a significant beneficial owner of the company at any time during the three years immediately preceding the date on which the notice is issued, and who is not registered as a significant beneficial owner with the company as required under this section. (6) The information required by the notice under sub-section (5) shall be given by the concerned person within a period not exceeding thirty days of the date of the notice. (7) The company shall,— (a) where that person fails to give the company the information required by the notice within the time specified therein; or (b) where the information given is not satisfactory, apply to the Tribunal within a period of fifteen days of the expiry of the period specified in the notice, for an order directing that the shares in question be subject to restrictions with regard to transfer of interest, suspension of all rights attached to the shares and such other matters as may be prescribed. (8) On any application made under sub-section (7), the Tribunal may, after giving an opportunity of being heard to the parties concerned, make such order restricting the rights attached with the shares within a period of sixty days of receipt of application or such other period as may be prescribed. (9) The company or the person aggrieved by the order of the Tribunal may make an application to the Tribunal for relaxation or lifting of the restrictions placed under sub-section (8). (10) If any person fails to make a declaration as required under sub-section (1), he shall be punishable with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees and where the failure is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the failure continues. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 9 (11) If a company, required to maintain register under sub-section (2) and file the information under sub-section (4), fails to do so or denies inspection as provided therein, the company and every officer of the company who is in default shall be punishable with fine which shall not be less than ten lakh rupees but which may extend to fifty lakh rupees and where the failure is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the failure continues. (12) If any person wilfully furnishes any false or incorrect information or suppresses any material information of which he is aware in the declaration made under this section, he shall be liable to action under section 447.'. 23. In section 92 of the principal Act,— Amendment of section 92. (i) in sub-section (1),— (a) clause (c) shall be omitted; (b) in clause (j), the words "indicating their names, addresses, countries of incorporation, registration and percentage of shareholding held by them" shall be omitted; (c) after the proviso, the following proviso shall be inserted, namely:— 'Provided further that the Central Government may prescribe abridged form of annual return for "One Person Company, small company and such other class or classes of companies as may be prescribed".'. (ii) for sub-section (3), the following sub-section shall be substituted, namely:— "(3) Every company shall place a copy of the annual return on the website of the company, if any, and the web-link of such annual return shall be disclosed in the Board's report.". (iii) in sub-section (4), the words and figures, "within the time as specified, under section 403" shall be omitted; (iv) in sub-section (5), for the words and figures, "under section 403 with additional fees" the word "therein" shall be substituted. 24. Section 93 of the principal Act shall be omitted. Omission of section 93. 25. In section 94 of the principal Act,— Amendment of section 94. (i) in sub-section (1), in the first proviso, the words "and the Registrar has been given a copy of the proposed special resolution in advance" shall be omitted; (ii) in sub-section (3), the following proviso shall be inserted, namely:— "Provided that such particulars of the register or index or return as may be prescribed shall not be available for inspection under sub-section (2) or for taking extracts or copies under this sub-section.". 26. In section 96 of the principal Act, in sub-section (2), in the proviso, for the words Amendment of "Provided that", the following shall be substituted, namely:— section 96. "Provided that annual general meeting of an unlisted company may be held at any place in India if consent is given in writing or by electronic mode by all the members in advance: Provided further that". 10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Amendment of 27. In section 100 of the principal Act, in sub-section (1), the following proviso shall be section 100. inserted, namely:— "Provided that an extraordinary general meeting of the company, other than of the wholly owned subsidiary of a company incorporated outside India, shall be held at a place within India.". Amendment of 28. In section 101 of the principal Act, in sub-section (1), for the proviso, the section 101. following proviso shall be substituted, namely:— "Provided that a general meeting may be called after giving shorter notice than that specified in this sub-section if consent, in writing or by electronic mode, is accorded thereto— (i) in the case of an annual general meeting, by not less than ninty-five per cent. of the members entitled to vote thereat; and (ii) in the case of any other general meeting, by members of the company— (a) holding, if the company has a share capital, majority in number of members entitled to vote and who represent not less than ninety-five per cent. of such part of the paid-up share capital of the company as gives a right to vote at the meeting; or (b) having, if the company has no share capital, not less than ninty-five per cent. of the total voting power exercisable at that meeting: Provided further that where any member of a company is entitled to vote only on some resolution or resolutions to be moved at a meeting and not on the others, those members shall be taken into account for the purposes of this sub-section in respect of the former resolution or resolutions and not in respect of the latter.". Amendment of 29. In section 110 of the principal Act, in sub-section (1), the following proviso shall be section 110. inserted, namely:— "Provided that any item of business required to be transacted by means of postal ballot under clause (a), may be transacted at a general meeting by a company which is required to provide the facility to members to vote by electronic means under section 108, in the manner provided in that section.". 30. In section 117 of the principal Act,— (i) in sub-section (1), the words and figures “within the time specified under section 403” shall be omitted; (ii) in sub-section (2),— (a) for the words and figures “under section 403 with additional fees”, the word “therein” shall be substituted; (b) for the words "not be less than five lakh rupees", the words "not be less than one lakh rupees" shall be substituted; (c) for the words "one lakh rupees", the words "fifty thousand rupees" shall be substituted; (iii) in sub-section (3),— (a) clause (e) shall be omitted; (b) in clause (g), in the proviso, the word “and” shall be omitted and the following proviso shall be inserted, namely:— "Provided further that nothing contained in this clause shall apply to a banking company in respect of a resolution passed to grant loans, or