Brief highlights of the SEBI & Company Law Recent Key Amendments which will become effective from April 01, 2023, and actions to be taken by the respective Companies for the same.
2(1)(zb)(b)(ii) – Definition of “related party”
Provision: any person or any entity, holding equity shares of ten percent or more, with effect from April 1, 2023 in the listed entity either directly or on a beneficial interest basis as provided under section 89 of the Companies Act, 2013, at any time, during the immediate preceding financial year shall be deemed to be a related party:
Entities need to identify one time and an ongoing basis – any person or any entity holding equity shares of ten percent or more directly or on a beneficial interest basis as provided under section 89 of the Companies Act, 2013, during the immediate preceding financial year (i.e. FY 2022-23)
Regulation 2(1)(zc)(ii) – Definition of “related party transaction”
Where a listed entity or any of its subsidiaries on one hand transacts with any other person or entity on the other hand which may or may not be a related party (as per the revised definition w.e.f April 1, 2023 as mentioned above), but the purpose and effect of which is to benefit a related party (as per revised definition w.e.f April 1, 2023) of the listed entity or any of its subsidiaries, such transactions would be covered under the definition of Related Party Transaction
In the context of above, the Entities will have to peruse all transactions entered into by the listed entity or any of its subsidiaries and identify which transactions will get covered under this revised definition of ‘related party transactions’. Further, it is recommended to provide a framework whereby the basis of which all such transactions will be scrutinized to assess whether they are in anyway going to benefit any related party of the listed entities or any of its subsidiaries.
Regulation 23 (2)(c) –
Limit for approval of subsidiaries transactions by audit committee of the listed entity
Provision: with effect from April 1, 2023, a related party transaction to which the subsidiary of a listed entity is a party but the listed entity is not a party, shall require prior approval of the audit committee of the listed entity if the value of such transaction whether entered into individually or taken together with previous transactions during a financial year, exceeds ten percent of the annual standalone turnover, as per the last audited financial statements of the subsidiary
All subsidiaries need to list out related party transactions (as per the revised definition w.e.f April 1, 2023 as mentioned above), where they are a party but the listed entity is not a party and see which of those exceed 10% of annual turnover on ‘standalone financial’ of the subsidiary and provide those to the listed entity for seeking approval of its audit committee. Entities need to identify and analyze the said limit and bring the transactions prior to April 1, 2023, i.e., in Quarter 4 itself (for omnibus approval) to Audit Committee and/ or shareholders as the case may be.
Reg 23(9) –
RPT Disclosure to stock exchanges
Provision: Disclosure of Related Party Transactions as per Regulation 23(9) needs to be filed on the same day on which financial results are published to stock exchange.
Systems have to be put in place for effective implementation and ensuring compliance while preparation of the RPT disclosure by the accounts team.
Reg. 15(2)(a) 2nd Proviso –
Provision: (2) The compliance with the corporate governance provisions shall not apply, in respect of –
(a) a listed entity having paid up equity share capital not exceeding rupees ten crore and net worth not exceeding rupees twenty five crore, as on the last day of the previous financial year:
Provided further that once the above regulations become applicable to a listed entity, they shall continue to remain applicable till such time the equity share capital or the net-worth of such entity reduces and remains below the specified threshold for a period of three consecutive financial years
Companies will have to check paid up share capital and net worth for applicability of Corporate Governance Provisions and also check whether the entity has completed 3 years or not below the threshold.
Regulation 15 to Regulation 27 –
Provision: Regulation 15 to Regulation 27 of SEBI (Listing Obligations and Disclosure Requirements), Regulations, 2015 would have to be mandatorily complied by High Value Debt Listed Entities.
As per second proviso to Regulation 15(1A) of SEBI (Listing Obligations and Disclosure Requirements), Regulations 2015 were applicable on ‘comply’ or ‘explain’ basis until March 31, 2023.
HVDs will have to ensure all compliances and systems are in place in order to comply Regulation 15 to Regulation 27 as there exemptions would cease to exist after the cut-off date.
Regulation 52(1) of SEBI (LODR)
Provision: For every last quarter ended listed entities shall submit unaudited or audited quarterly and year to date standalone financial results within sixty days from end of quarter to stock exchange.
Entity shall make provisions to submit audited quarterly and year to date standalone financial results in the mentioned timeline.
Unaudited is for Govt Companies.
Regulation 52(4) of SEBI (LODR)
Provision: Exemption to banks or NBFCs or Housing Finance Company in disclosing debt service coverage ratio and interest service coverage ratio is withdrawn.
Also, disclosure of ratios as provided under said regulation must be given in financial results on quarterly and annual. If the information mentioned in Regulation 52(4) is not applicable to the listed entity, it shall disclose such other ratio/equivalent financial information, as may be required to be maintained under applicable laws, if any.
In case of newspaper advertisement, other line items that are not part of format but are referred in regulation 52 (4) of the LODR Regulations, pertinent disclosures have been made to the Stock Exchange(s) (specify names of Stock Exchanges) and can be accessed on the URL (specify URL).
Awareness to accounts team about the ratio calculation.
Secretarial Team along with IT team about line items mentioned in Reg 52(4) to put up on website of the company and stock exchange.
SEBI Circular dt: Nov 26, 2018 and April 13, 2022 (for NCS) – Fund Raising by Large entities
Provision: At the end of two years i.e. last day of FY 2023 (31st March, 2023), if there is a shortfall in the requisite borrowing (i.e. the actual borrowing through debt securities is less than 25% of the incremental borrowings for FY 2022, i.e., 1st April, 2021 to 31st March, 2023), a monetary penalty/fine of 0.2% of the shortfall in the borrowed amount shall be levied and the same shall be paid to the Stock Exchange(s)
Entities to analyze if the borrowings in the said period of 2 financial years from 1st April,2021 to 31st March,2023 meet the above-mentioned criteria and if not then raise borrowing through issuance of debt securities before 31st March, 2023 in order to avoid penalty from stock exchange.
SEBI Circular dt: November 3, 2021 – Updation of KYC for physical shareholders
Provision: As per SEBI circular dt: November 3, 2021, the folios wherein PAN, KYC, and Nomination by physical holders of physical securities is not available on or after April 01, 2023, shall be frozen by the RTA.
Connect and get update from RTA as to the procedure and systems in place for ensuring compliance of this circular and ensure communication to investors holding securities in the physical form about the restriction on services that could be availed if the provisions of this circular are not complied with.
BSE and NSE Circular – July 16, 2022
Provision: Listed entities shall file BRSR report with stock exchange as soon as they send annual report.
(This is relevant for top 1000 listed entities on market capitalization [Market Capitalization shall be on the basis of 31st day of March of every financial year.])
Companies need to check market capitalization and determine their ranking. Preparation of BRSR report for the financial year 2022-2023 would need to be made if the company was in top 1000 as on 31st March 2022. Companies to check on 31st March 2023, for BRSR reporting for the financial year 2023-2024.
BSE and NSE Circular – March 31st 2022
Provision: Change of designated stock exchange for waiver application in case of commonly listed entities
Entity to check which is the designated stock exchange for waiver application on March 31, 2023. Further keep on changing from 1st April 2023 till 30th September, 2023
Form DPT-3 Point 15
Provision: The form DPT-3 is now to be filed in the new V3 version of MCA, wherein ageing schedule has to be given for each and every item and the statutory auditor need to certify the form DPT-3. Hence companies need to ensure all amounts received by the company which will remain outstanding at the end of the financial year ending on March 31, 2023 will be in compliance with the definition of ‘deposit’ given under Companies (Acceptance of Deposits) Rules, 2014.
Awareness to the accounts team about ageing schedule for items exempted under deposits.
Sec 135 of Companies Act r/w Rule 3(2) of Companies (CSR) Rules, 2014
Provision: Deletion of Rule 3(2) of the said CSR Rules which prescribed that companies can discontinue from complying with CSR provisions if they do not meet the thresholds under section 135(1) for a continuous period of 3 years)
Applicability under Section 135(1) has to be checked for each year and compliances if applicable. No need to check for the earlier two financial years.
Rule 3 of Companies (Accounts) Rules, 2014
Provision: The books of account and other relevant books and papers maintained in electronic mode shall remain accessible in India, at all times accessible in India so as to be usable for subsequent reference.
Provided that for the financial year commencing on or after the 1st day of April, 2023, every company which uses accounting software for maintaining its books of account, shall use only such accounting software which has a feature of recording the audit trail of each and every transaction, creating an edit log of each change made in books of account along with the date when such changes were made and ensuring that the audit trail cannot be disabled.
Keeping books of accounts accessible in India at all times. Also, Entities will have to adopt accounting software providing an audit trail if existing software does not provide the same.
Rule 2 of Companies (CSR) Rules,2014
Provision : Under the definition of Corporate Social Responsibility (CSR) generally activities undertaken in pursuance of normal course of business of the company are not covered but during the COVID period, MCA had provided, relaxations to company engaged in research and development activity of new vaccine, drugs and medical devices in their normal course of business may undertake research and development activity of new vaccine, drugs and medical devices related to COVID-19 for financial years 2020-21, 2021-22, 2022-23 subject to certain conditions;
Companies that have contributed to CSR under this clause, would have to find an alternative method to allocate their spends towards CSR for FY 23-24 as this relaxation would cease to exist from FY 22-23.
Provision: As per SEBI Circular dt: November 3, 2021 [Point 6.3] if there is no valid PAN (PAN linked with Aadhar) by March 31, 2022, or any other date given by CBDT then RTA shall freeze folios. The due date for linking PAN with Aadhar was extended by CBDT till March 31, 2023. So, if Aadhar and PAN card is not linked by March 31, 2023, folios will have to be freezed for those physical security holders.
Letter to Physical Shareholders informing them about the restriction & the due dates for ensuring PAN Linkage to AADHAR.
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Disclaimer: This article provides general information existing at the time of preparation and we take no responsibility to update it with the subsequent changes in the law. The article is intended as a news update and Affluence Advisory neither assumes nor accepts any responsibility for any loss arising to any person acting or refraining from acting as a result of any material contained in this article. It is recommended that professional advice be taken based on specific facts and circumstances. This article does not substitute the need to refer to the original pronouncement