THE ERUDITE

The Erudite Monthly e-Journal

Volume-1│Edition- III│ September 2011

Dynamically heading towards its Vision…

Features inside

RBI Updates

TAX Updates

SEBI Updates

CORPORATE LAWs

Learning ARTICLEs

Learning QUIZ

PAGE 2THE ERUDITE- LEARNING PROFESSIONALS’ MONTHLY JOURNAL

Message from the TeamHeartiest Congratulations to my friends who cleared their exams having climbed a step of ladder of career. For friends who could not make this time I would say hope is not to be set free, get firm, get committed, success will be yoursTo put my pen down to this great communiqué is a pride to me. I would lay my thanks to the Team to let me seize the opportunity. The team through e-mode has given an opportunity to everyone of you by sharing your articles through e-newsletter or allowing you yourself to publish at your very own blog at member’s corner.The members’ corner is ready to use and so you are requested to visit, join, grab and make best use of the features therein. Visit lpguide.wordpress.com & check members corner, make a free account and the professional communication is at your fingertips.By this time we must have started our preparation for our upcoming exams in last 2 months of the year. Feel free to contact us to help you prepare well.HAPPY LEARNING!!!!With Warm Professional Regards,On behalf of Learning Professionals Team Rohit Muchhal

Inside This Issue1 Message from the team

“Getting Erudite”2 The Change– Why “The

Erudite”3 Regulatory Affairs

SEBI RBI TAX Updates CORPORATE LAWS

4 Articles Corner MCA’s Positive role to ease

Winding Up Process-Written by Amit Johri

New Takeover Regulations-Written by Rohit Muchhal

Private Equity & Venture Capital & Investment Banking-Written by Abhishek Kumar

5 Learning Quiz of the month6 Updates from the LP Family

Be intelligent, be smart, and be

informed.

The Erudite A learning

professionals’ initiative

VOLUME 1 ISSUE III

Newsletter Date

Editor- in- chief:

Supporting Editors:Rohit Muchhal Hari Krishan CS Hena Shrivastava

Concept & designOf III-Edition of eNewsletter:Abhishek Kumar Hari Krishan

Jay Raithatha

Find us on facebookWWW.FACEBOOK.COM/ LPGUIDE

WWW.FACEBOOK.COM/ADMIN.JAY Our Free SMS Services:- Sms as ON CSROCKERS To 9870807070


The Change-Why “The Erudite”The expectations of the aspirants and the professionals are seen to be generally of three folds. First: easy availability of regulatory updates and guidance on academics, Second: a friendly gathering where they conceptually and in a logical sequence can get there doubts clear. Third: Meeting the above twp definitely creates an emotion of friendship and a decent gathering. An attempt has been made by the Learning Professionals Network to meet all these three core expectations through its blog, features made available in the blog and through this Journal. The Professional Institutes always eye to nourish us in the best possible manner so that we can enrich ourselves and the society with a better NPV. They keep us providing a theme message to us - to create a habit of writing or communication within us - through different articles, seminars, conventions, etc. Similar small attempt was made by us; here generally, we mean young professionals and the students. Three months ago we took the initiative to provide regulatory updates to the professionals and the students. No sooner than this concept was introduced that the ideas of articles from the Student Class itself started reaching our mail box to get those to be published in, yours only, newsletter. Though the numbers were very few but keeping in mind the most important part where the CA or the CS or the CWA lags behind of the MBA/CFA, etc is the communication and grooming part therefore we kept on provoking the students to develop their writing skills. We believe that if maximum of 5-6 hours each month is given for one’s own benefit then it’s not a time loss but an investment. Yes I definitely mean that 5-6 hours is enough to prepare, compose and to mail us. There from the ideas of Articles, Quiz, etc were introduced and

the appreciation and the benefit from this piece of art and knowledge wrapped with the hard work in designing and framing of eNewsletter became voluminous to carry on with the category of being called eNewsletter. Hence the Moderators with the opinion of few Learning Professionals Members thought of giving it a shape of a journal and henceforth to be known as “The Erudite”.“The Erudite” means Learned, Knowledgeable, Cultured, Intellectual, or Academic. Hence it justifies the concept and with change in its name but with no change in its objective the Journal (erstwhile eNewsletter) will be presented by yours only Learning Professionals Team under the name “The Erudite” with the same Vision.The Editors and the Moderators of the Learning Professionals Network are sanguine that the students and the professionals will find this change and this journal more informative yet lucid companion of their Professional life and career. Please feel free to share your testimonials, suggestions, etc by dropping mail to us at [email protected].

By Rohit Muchhal On Behalf of Learning Professionals Team

By Rohit Muchhal On Behalf of Learning Professionals Team


In the past two weeks, the Ministry of Corporate Affairs has issued a string of circulars which, inter alia, aim to address some issues relating to winding up process of the companies. General Circular No. 54/2011 issued on 26th July, 2011 on pro-active action in case of winding up petitions notices that winding up petitions are filed by creditors, stake holders and management before Hon’ble High courts without a full disclosure of information. This results in unnecessary delay in winding up cases and loss of valuable time of Courts. Through the Circular, the Ministry provides for a list of actions to speed up the winding up process and to introduce best international practices in the winding up process.The Ministry directs OLs to place one of the staff members to the Company Court to note all pending cases of winding up. In all these cases, the OL will seek information from the management of the company by filing an application to the Court. A list of information to be obtained from the company is provided in the Circular which is not reproduced here for the sake of brevity. The Circular directs the RDs to ensure that the applications are filed by OL before the next date of hearing in all pending cases and before the second hearing of the case in all new cases.General Circular No. 55/2011 was issued on 26th July, 2011 to provide for procedure of scrutiny, inspection and investigation in all winding up cases. The Ministry noticed that winding up petitions are being filed by management after having committed major violations under the Companies Act, 1956 as well as misappropriation of funds of

the company. In order to curb such malpractices, the Ministry has laid down the following procedure which is to be followed in all cases of winding up. When any winding up petition is filed before the Court, OL will forward a copy of the petition to the ROC concerned. ROC will scrutinize the details/documents of the activities of Company in the past five years as available in MCA 21 registry and will submit a preliminary report to the Ministry within a week time for inspection or investigation. Kindly refer to the Circular for the types of information that have to be scrutinized by ROC.After the preliminary report is filed by ROC, MCA will decide within 15 days whether any inspection under Section 209A and/or investigation under Section 235/237 of the Act should be undertaken. The same will be completed by the ROC and the copy of the report is to be forwarded to the OL within 30 days. The OL then places the report before the Hon’ble High Courts for seeking appropriate order under Section 539 to 544 and other relevant provisions of the Act. This process does not bar any simultaneously action against the director, ex-director and key management of the company for any violation of Companies Act, 1956 or any other law.General Circular No.56/2011 was issued on 28th July, 2011 which seeks to penalize the Directors who fail to file to file the Statement of Affairs (SOA) as required under Section 454 of Companies Act, 1956. As per Section 454, SOA is to be filed by the company within three months of date of appointment of the provisional liquidator or date of winding

MCA’s Positive role to ease Winding up Process Written By: Amit Johri, CS Final [email protected]


up order. The Ministry notices that the companies are not filing SOA within time and in any case, the time period provided considerably prolongs the liquidation process. The penalty for non-filing of SOA as per Section 454 is imprisonment for two years or fine of one thousand rupees for every day during which default continues. Clearly, this has not proved to be an effective deterrent for erring Directors.The Circular intends to bring in line the defaulting directors by providing for a much stringent penalty in the form of blocking their DIN as a consequence to non-filing of SOA. The Circular provides that MCA will give one month’s notice to the companies and the directors of such companies, where winding up orders have been passed by the Hon’ble Court, to file SOA before action for blocking their DIN is initiated. Hopefully, this step taken by the Ministry will curb this malpractice.These pro-active steps taken by the Ministry will ensure that the winding up procedure under Companies Act, 1956 is more transparent and effective in terms of cost and time involved. These procedures help the management to avoid unnecessary litigation against the company as well as safeguard the interests of the stakeholders by affixing accountability on the key management of the company during the stage of winding up of the company. The powers given to OLs and ROCs are wide enough to check any wrong doing on the part of the management of the company

**IMPORTANT CRITICAL POINTS OF ARTICLE ADAPTED FROM THE FIRM (CNBC TV18)

Disclaimer The Erudite is the Monthly Journal of the Learning Professionals Team who can be traced at www.lpguide.wordpress.com.

The details herein are for information purposes only. Under no circumstances the information is to be used or considered as an authenticity to act upon.

The information here may not be complete and to be rely upon. Before relying the readers should seek appropriate professional advice.

The Learning Professional Team or the www.lpguide.wordpress.com and the contributors shall not be, in any case, liable to damages arising out of the material/s in this publication.

http://www.lpguide.wordpress.com/


New Takeover Regulations Written by: Rohit Muchhal, CA final [email protected]

In late July 2011, SEBI has finally approved the awaited recommendations of Achuthan Committee with some modifications.

The definition of “Control” was remaining unchanged and the delisting provisions in TRAC Report were not agreed by the Board. Rests of the note worthy points are highlighted below:-

Heading SEBI(SAST) Reg., 1997

New Takeover Regulations

Remarks

Initial Offer Acquiring ≥ 15% Acquiring ≥ 25% Beneficial for the target company to raise private

company and beneficial to acquirer as they had to limit their acquisition at 14.99%

Offer Size 20% of Voting Capital

26% of Voting Capital

TRAC Report suggested for 100% however Industry

pressure was against it as it would had made a costly deal and Mergers and Acquisitions would have been hampered

somehow.Non Compete

FeesUpto 25% of the

Offer sizeRemoved --

Voluntary Open Offer

No provisions. Introduced with certain conditions.

--

Recommendation by the Board of Target

Company

Voluntary Made Mandatory Existing Regulations provided that the Target company

would constitute a committee of independent directors which

shall provide written recommendation of the open

offer to the Shareholders.Acquisition

from existing competing acquirer

No provisions. Successful bidder may acquire share of other bidder(s)

after the offer period without

getting attracted to Open offer

regulations if done within 21 business

days.

--

Private Equity & Venture Capital Need, Genres & Scenario Written by: Abhishek Kumar [email protected]


Private equity and Venture capital are one of the most important sources of finance for the companies which are generally not publicly traded. These bodies provide the early source of finances for the companies having some good business plan and future growth prospects. The investment under this scheme is generally made by acquiring the equity stake in the company; the main players in this segment are Angle investors, PE firms, VC firms etc. Some highlights: 1) These funds generally examine the strengths and competencies of business plan and the management and the time period associated and make entry in the formative stages.2) The investment may come in several stages through the life cycle of the company.3) These are the most risky class of investors in the world, they finance those companies and projects which are ultra risky in nature, such as unproven technologies, unrealistic projects, optimistic business plans, immature ventures, entirely new areas to the country or the world etc.4) The fund is characterised by very huge investments by very high net-worth individuals, corporate and foreign corporations.5) The investment made under these schemes is generally for a 3-7 year tenure. 6) The exit routes for the fund may be stake sell, buy back by the Co., Public offer etc.

The relevance of this class of investment can be reckoned from the fact that the most of the developed American and European economies were widely funded

by such class of investors in early 18th and 19th centuries. The very successful stories include those of Apple Inc., Microsoft, General Electric’s etc. Which received very early stage of PE funding which helped them to stand and expand and get transformed into a multibillion dollar giant MNCs. The PE investors in such firms also multiplied their wealth multi hundred thousand times.

For any economy to flourish a number of successful ventures and corporations are needed, which acts as a pillar of the economy and the industry. Ventures are created by entrepreneurs having risk appetite and courage to sustain pressure and work under extreme and adverse conditions. The entrepreneurs need capital investment for successful running of their economic activates, for which the country tries hard to develop a proper financial system, markets and a large no. of financial organizations, banks private equity and venture capital funds.

The same investment methodology is adopted by these privately organized funds i.e. “Higher the risk higher the gain” and the outcome of such risky investment is also outstanding and fruitful they use to multiply their money several hundred or thousands times in a year which is not possible for any alternative or parallel investment vehicle. The most live and successful example is one of the world’s reaches person Warren buffet, In his words he has made every single pine of his wealth by investment only.

PROCESS


In practical scenario there are several PE and VC funds active throughout the globe. The may be a sector specific of a general fund, in addition to these there is another class of investors such as angle investors having unlimited resources and capital.

Let’s understand several stages involved under the process by way of a suitable example:

The Entrepreneur :There is a Scientist named A and he has discovered and patented a new medicine for the treatment of cancer, and he has opened a company ABC for its trial testing production and promotion. For this purpose he has invested his whole life savings which was 2 Cr. but for the purpose of testing, launching and promoting the medicine in market he needs more than 200 crores. What will he do. All doors of banks/financial institutions are closed to him because he is new into the industry.

Investment banker Mr. B and Mr. C are investment bankers with excellent knowledge and understanding of business and the industry, they have high contacts with companies, capitalists etc.

PE/VC/Angel investorMr. D is a very rich investor and wants to make some investment of his capital and is searching some good businesses or companies to invest in.

INVESTMENT BANKING

Deal Structuring

Mr. A will approach to Mr. B ( the investment banker ) to understand the technology make proper valuation of his venture and arrange 200 crore or more investment for his company but gave condition that he is not ready to dilute his equity holding more than 40% and Mr. B agrees to arrange the investment of more

than 200 crore for his business for a consideration of 2% as commission which Mr. A agreed.Mr. D approached Mr. C to find a suitable place for making proper investment with his money and Mr. C in turn demanded 2% as Commission which Mr. D agreed.

ValuationBoth Mr. B with his teammates including people expert in pharmasector and biotechnology, made a comprehensive study over the company, the competitors, the sectors, future trends of demand and supply, available medicines in market, their costs, effectiveness etc. And finally made a conclusion that the medicine Mr. A invented was really outstanding and there were no competition in the market but very much demand was anticipated and estimated a total sell of more than 5000 cr. And net profit more than 2500 cr. In 1st year only, If such product was launched in the market.

Mr. B then gave the 2 cr. company (following the industry standards and other commonly used methods) a valuation of of whopping 1000 cr. and approached Mr. C, for a stake sell of 30% for 300 Cr.

Mr. C and Mr. D after a proper study of the Project and the valuation report, termed the company over valued and after some series of negotiation with Mr. A and Mr. B, agreed to make a private equity investment of 300 cr. for 5 years on behalf of Mr. D for a stake of 40 % which both “ Mr. A and Mr. D accepted.

Deal ClosingEverything was verified, proper due-diligence were done, agreements were signed and stock of 40 % of capital of company ABC was allotted to Mr. D, and an independent director was appointed by Mr. D, on his behalf into the ABC company to take care of the investment and his interests.Mr. B received 2% of 300 Cr i.e., 6 Cr. as commission from ABC company and Mr. C


received 2% i.e., 6 Cr. commission from Mr. D in the form of commission.

It was just a typical example of an investment banking deal for a PE funding of a company, in real life there are so many complications in formulating these kinds of deals and reaching up to a proper valuation level and sourcing funds thereof.

We come across a no. of deals in listed/non-listed, New/Established companies in news papers, magazines, journals, websites etc. These are really of great worth and of prime importance for the country and the economy, these deals acts as building blocks of the economic development by encouraging the entrepreneurs to come forward and live their dreams.

Some facts :1) PE/VC financing is regulated by SEBI.2) There are 180 SEBI registered VC in India.3) India and china are largest destinations (more than 68% )of global emerging market PE funds, where Indian gets $3.8 bn ,while china $5.8bn annually.4) ICICI VENTURES is India’s largest single VC fund with an asset size of more than $2bn.5) The consideration for equity stake may be monetary or non-monetary, for instance Times of India and Hindustan times have VC divisions which purchase stake in new/existing companies for the consideration of advertisement space in their respective newspapers/magazines.6) There may be a time limit condition or warrants attached giving a put or call option to company or the investor, with the equity stake acquired by PE/VC funds, for entry, holding and exit.7) Offshore venture funds are one of the largest source of FDI in our country.

These funds are seen as the future growth driver of the country and the economy, therefore we see the

government is day by day opening every closed door for the FDI in country. These funds a not only seed the infant ventures but also nourishes them till they become complete and matured enterprises.

It’s not there but it’s there….The essence based on which our 1st eNewsletter roll out is still imbibed within but the innovations, content, etc have undergone a long way. Minus the support and participation from the Professional World could have made it saddled with the 1st edition even till today.

We request to make your own mark and share it on very free hand your only Journal send your articles to us and cultivate writing skills/share words/incite others to do so even.

Regulatory UpdatesSEBI Updates


Sl. No. Particulars Circular No. Details

1 Indicative portfolio or yield in close ended debt oriented mutual fund schemes

Cir/ IMD/ DF/12 /2011 August 1, 2011

In order to enable investors to make a more informed decision regarding the quality of securities and risk associated with different close ended debt oriented schemes, it is decided that Mutual Funds (MFs) / AMCs may make additional disclosures in the SID/SAI and KIM without indicating the portfolio or yield, directly or indirectly.

2 SMS and E-mail alerts to investors by stock exchanges

CIR/MIRSD/15/2011August 02, 2011

Because of allegedly complaints by the investors for unauthorised trading in their accounts, Sebi has taken a safety measure that the stock exchanges shall send details of the transactions to the investors, by the end of trading day, through SMS and E-mail alerts.

3 Revised procedure for seeking prior approval for change in control through single window

CIR/MIRSD/14/2011 August 02, 2011

With a view to expedite the process of granting prior approval, it has been decided to adopt a ‘single window clearance at SEBI’, for the intermediaries in case of their having multiple registrations with SEBI.Accordingly, in consultation with the major stock exchanges and market participants, it has been decided to adopt the prescribed procedure.

4 Circular for Mutual Funds Cir/ IMD/ DF/13/ 2011August 22, 2011

In order to simplify and rationalize the account opening process, SEBI have reviewed, consolidated and updated all the documents/requirements prescribed in respect of account opening process over the years, in consultation with major stock exchanges and market participants.

5 Simplification and Rationalization of Trading Account Opening Process

CIR/MIRSD/16/2011August 22, 2011

For details check :- www. lpguide.wordpress.com

6 Processing of Investor Complaints in SEBI Complaints Redress System (SCORES)

CIR/MIRSD/19/2011 August 26, 2011

SEBI has commenced processing of investor complaints in a centralized web based complaints redress system ‘SCORES’. The salient features of this system are:• Centralized database of all complaints.• Online movement of complaints to the concerned intermediaries• Online upload of Action Taken Reports (ATRs) by the concerned entities, and• Online viewing by investors of action on the complaints and its current status.


MCA Updates

RBI Updates


1 Company Law Settlement Scheme,2011 comes into force on 12th August

General Circular No: 59/2011 05.08.2011

MCA has decided to introduce a scheme for the defaulting companies who do not file their books of accounts timely. Just to make their default good it has been decided to charge 25% as an additional fee from the companies. This scheme shall come into force from 12th August, 2011 and shall remain force upto 31st October, 2011.


1 Opening and Maintenance of Rupee / Foreign Currency Vostro Accounts of Non-resident Exchange Houses

RBI/2011-12/160A.P. (DIR Series) Circular No.09, A.P.(FL/RL Series) Circular No.01August 29, 2011

Inward remittances for permissible purposes are received in India through Exchange Houses situated in Gulf countries, Hong Kong and Singapore, with prior approval of the Reserve Bank. With a view to extending the scope of the said Arrangement to other jurisdictions, it has been decided to extend the Rupee Drawing Arrangements (RDAs) only under the Speed Remittance procedures to Exchange Houses situated in Malaysia.

2 Authorisation Guidelines for Primary Dealers (PDs)

RBI/2011-12/162IDMD.PCD. 9 /14.03.05/2011-12August 30, 2011

With a view to putting in place equitable and transparent regulatory guidelines for authorisation of PDs and to ensure that the new PDs are adequately equipped to participate meaningfully in all auctions of Government securities (G-Sec), including an underwriting commitment and play an active role in the G-Sec market in the emerging circumstances, it has been decided to review the existing authorization guidelines for PDs.

3 Inclusion in the Second Schedule to the Reserve Bank of India Act, 1934 – Australia and New Zealand Banking Group Limited

RBI/2011-12/163Ref: DBOD.No.Ret. BC.29/12.06.130/2011-12August 30, 2011

The name of “Australia and New Zealand Banking Group Limited” has been included in the Second Schedule to the Reserve Bank of India Act, 1934 notification published in the Gazette of India (Part III – Section 4) dated July 09, 2011.


Direct Tax Updates

Indirect Tax Updates


1 Instructions for Income-tax deduction from salaries during the financial year 2011-2012 under section 192

CIRCULAR NO. 05/2011 [F.NO. 275/192/2011-IT(B)] DATED 16-8-2011

Check details in :- lpguide.wordpress.com

Sl. No.

Particulars Circular No. Details

1 Service tax on fee charged for issuance of Country of Origin Certificate (COOC) by Chambers of Commerce

CIRCULAR NO. 145/14/2011-ST DATED 19-8-2011

Service tax paid on 'technical inspection and certification' of export goods is eligible for refund.

2 Authorized Economic Operator (AEO) programme for implementation

Circular No.37/2011-Customs 23rd August, 2011

In view of growing concern amongst Customs administrations about the threat posed through misuse of channels of import and export, there is a need to ensure security in global supply chain in international movement of goods. Keeping this in view, CBEC has finalized the ‘Authorized Economic Operators’ (AEO) programme for implementation to secure supply chain of imported and export goods.

3 Seeks to continue imposition of definitive anti-dumping duty on all imports of 1-Phenyl-3-Methyl-5-Pyrazolone, originating in, or exported from, People’s Republic of China

Notification No.80/2011-Customs, 24th August, 2011

Central Government, on the basis of the aforesaid findings of the designated authority, hereby imposes anti- dumping duty on the goods, falling under sub- heading of the First Schedule to the said Customs Tariff Act originating in the country and exported from the country produced by the producer and exported by the exporter and imported into India, an anti-dumping duty at the rate specified in accordance with the currency and per unit of measurement.

4 Electronic filing of service tax return made mandatory for all

Notification No. 43/2011 – Service Tax 25th August 2011

These rules shall come into force 1st day of October, 2011.

5 Regarding issue of Customs House Agent License

Circular No.38/2011-Customs 24th August, 2011

All applicants who had already passed the examination held under regulation 9 of CHALR, 1984 but have not been granted licence and are seeking qualification in additional subjects shall be allowed to clear the examination by 31.12.2012 irrespective of number of chances to become eligible for grant of CHA licence.


Learning Quiz©… LEARNING Quiz© THIS MONTH

A Petition was filed under section 391 to 394 of the Companies Act 1956 for a scheme of Arrangement of Demerger by Demerged Company and Resulting Company in the High Court. The scheme of demerger contains scheme of reconstruction of share capital. The Meeting of equity shareholders of both companies and unsecured creditor of demerged company was held properly & the consent was taken as required.But the Regional Director while making scrutiny of the scheme found that there was non-compliance of Accounting Standard-14 Issued by the Institute of Chartered Accountant of India. The Regional Director contended in High Court that the scheme was not in consonance with generally accepted accounting principles as also Accounting Standard 14, thus the scheme cannot be passed by the High Court.

In the case as above, whether the contentions of the Regional Director are tenable or not?

Best Answer* will be chosen and will be highlighted in blog, facebook group and page. Send your replies by 20th of September to [email protected].

Answer to August Edition LEARNING Quiz©The correct and the earliest answer was given by :--

CS Kiran MukadamFrom: Pimpri-Chinchwad, Pune.Qualification:- M.Com, ACS, SETCurrently Working as “Company Secretary and Finance"in Ionbond Coatings Private Limited, Pune.([email protected])

The correct answer can be found at …………………………..

mailto:[email protected]

mailto:[email protected]


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