Regulatory Review of Corporate Law: All Latest Amendments

The concept of corporate law has gained prominence during the past two decades. In recent times, this topic has garnered significant interest. Similar to other trendy notions, it exhibits a certain level of ambiguity and, for some individuals, has acquired a clichéd status. It is seen as an abstract notion with widespread admiration but is subject to varying interpretations.

As the commencement of the financial year 2023-2024 approaches, it is necessary to reflect upon the regulatory advancements achieved after the fiscal year 2022-2023. While there has been no substantial traffic in terms of regulatory developments to the Companies Act, the migration of various forms in MCA’s V3 portal proved to be (and continues to be so in some cases) a turmoil, with a standstill in the fundraising process, and other practical difficulties, even resulting in levy of additional fines. SEBI has made substantial progress in this regard. The term ‘Structured Digital Database (SDD)’ continued to be widely discussed among the listed firms, as stock exchanges mandated them to file quarterly compliance certificates. However, the primary concern remained the implementation of adequate safeguards to prevent insider trading. The Compliance Officers in the listed firms have encountered difficulties fulfilling their responsibilities. However, as the Listing Regulations require, these challenges have been addressed and documented in the annual secretarial compliance reports. The emergence of Social Stock Exchanges has been a significant milestone for social entrepreneurs, as this concept is transitioning into an operational phase. The fiscal year 2022-2023 has witnessed substantial deliberations and assessments of prevailing regulatory provisions under the corporate law. The Securities and Exchange Board of India (SEBI) has independently generated a total of 37 Consultation Papers during this period. Notably, 17 of these papers were published in the month of February. Subsequently, various proposals were evaluated and sanctioned during the SEBI meeting held on March 29, 2023. In this article, we have endeavoured to provide a concise overview of the significant advancements in corporate law throughout the fiscal year 2022-2023.

Developments in the corporate world

In this section the author has discussed all the regulation that have been passed by the government under the corporate law:

1. Udyam Assist Platform (UAP): The Ministry of Micro, Small, and Medium Enterprises in India introduced the Udyam Assist Platform (UAP) on May 9, 2023. The primary objective of this platform is to facilitate the formalisation of Informal Micro Enterprises (IMEs) by enabling the online generation of the Udyam Assist Certificate. The registration process on the platform would be streamlined through the involvement of specified entities, including scheduled commercial banks and non-banking organisations. To be eligible for the incentives under Priority Sector Lending, Integrated Micro Enterprises (IMEs) must possess both the Udyam Assist Certificate and the Udyam Registration Certificate.
2. Account aggregator: According to authorities from the Goods and Services Tax Network (GSTN), the integration of GSTN with the Account Aggregator will take place on July 1, 2023. The implementation of this system has the potential to mitigate significant friction in the process of credit distribution. By allowing small businesses to grant lenders access to their tax records and other pertinent financial information through a unified platform, the efficiency and effectiveness of the disbursement process can be enhanced.
3. Guidelines on non-sugar sweeteners: The Food Safety and Standards Authority of India is now assessing the latest guidelines provided by the World Health Organisation about non-sugar sweeteners. These guidelines indicate that non-sugar sweeteners, such as aspartame and stevia, may not contribute to weight loss and may potentially elevate the likelihood of developing type 2 diabetes and cardiovascular illnesses.

MCA Update: Changes Promoting Ease of Doing Business in India

Here is the list of changes brought by the MCA under corporate law:

1. Companies (Removal of names of companies from Register of Companies) Rule, 2016: The Ministry of Corporate Affairs (MCA) was notified on May 10, 2023, which introduced amendments to the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016. These amendments now require companies to file their financial statements and annual returns before applying for voluntary strike-off under Section 248(2) of the Companies Act of 2013.
2. Companies (Compromises, Arrangements, and Amalgamations) Rules, 2016: The procedure of gaining clearance for a merger and acquisition (M&A) scheme has been made more efficient by the revision of Section 233 of the Act. This revision has been achieved by changing the Companies (Compromises, Arrangements, and Amalgamations) Rules, 2016. The updated rules will be implemented starting from June 15, 2023. The revisions above incorporate novel elements pertaining to the approval timetable to expedite the M&A process and enhance efficiency.

Taxation Updates: Impacting Businesses and Individuals

Here is the list of all the changes that have been introduced by the government under corporate law in terms of taxation:

1. Section 56(vii)(b) of the Income Tax Act, 1961:The Central Board of Direct Taxes (CBDT) has issued a notification that outlines the entities eligible for exemption from the rules of Angel Tax, Section 56(vii)(b) of the Income Tax Act, 1961. The entities that are exempted include foreign portfolio investors (Category I) that have been registered with the Securities and Exchange Board of India (SEBI), as well as Endowment Funds, Pension funds, and wealth funds from 21 jurisdictions that have been named in the notification. Furthermore, entities that are affiliated with the government, such as government-related investors, as well as banks or businesses involved in the Insurance Business, are also qualified for exemption. The imposition of angel tax occurs when unlisted entities issue shares at a valuation surpassing the prevailing fair market value.
2. Guidelines by the Central Board of Direct Taxes: The Central Board of Direct Taxes (CBDT) has recently released Guidelines providing clarification that no Tax Deducted at Source (TDS) will be deducted if the amount withdrawn does not exceed INR 100. According to the recently added Section 194BA of the Income Tax Act, 1961, online gambling platforms are required to withhold income tax from the net earnings of a user’s account throughout the withdrawal process, as well as after the conclusion of the fiscal year. In addition, it should be noted that bonus amounts, referral bonuses, and incentives obtained on an online gaming platform will be included in the calculation of taxable winnings.

Ministry of Finance Update: Widening the Scope of Laws

Here the author has author has discussed all the updated brought in by the Finance ministry under corporate law:

1. Amendments under the Prevention of Money Laundering Act, 2002:The Prevention of Money Laundering Act of 2002 (PMLA)^[1] was revised by the Ministry of Finance (MoF) through a notification issued on May 9, 2023. The notice expands the range of operations conducted by professionals on behalf of their customers or other individuals. Henceforth, the Prevention of Money Laundering Act (PMLA) scope would encompass activities such as assuming the role of a formation agent, director, or trustee, as well as offering office services. Previously, the Ministry of Finance (MoF) had broadened the scope of the term ‘person carrying out specified business or profession’ to encompass chartered accountants, company secretaries, and cost and works accountants. Furthermore, it has been determined that some operations, such as property sales and asset management, are encompassed within the Prevention of Money Laundering Act (PMLA) scope. Several specific limitations have been delineated, including lease agreements and operations carried out by employees or professionals involved in establishing a corporation.
2. Revision of Foreign Exchange Management (Current Account Transactions) Rules, 2000, omitting Rule 7: The Ministry of Finance (MoF) has recently revised the Foreign Exchange Management (Current Account Transactions) Rules, 2000, by omitting the Rule 7. Due to this exclusion, expenditures conducted abroad through foreign credit cards for transactions will henceforth be subjected to the comprehensive ceiling of the Liberalised Remittance Scheme, which is currently set at USD 250,000 per fiscal year. The primary objective of this amendment is to establish equitable treatment between debit and credit cards and enhance the oversight of foreign currency transactions for improved effectiveness.

Updates from the Competition Law

Here the author has author has discussed all the updated brought in under the corporate law in terms of Competition (Amendment) Act, 2023:

The Indian parliament has just enacted the Competition (Amendment) Act 2023, which serves as an amendment to the existing Competition Act of 2002. This amendment aims to enhance the authority of the Competition Commission of India (CCI) in order to curb anti-competitive practices effectively. The objective of this amendment is to contemporize the Competition Law, particularly in relation to digital marketplaces, and harmonise it with the prevailing economic circumstances. The revisions have been implemented in accordance with the suggestions put out by the Competition Law Review Committee, which was established by the Government of India. The change of utmost importance is to enhance the methodology for imposing penalties on corporations that engage in anti-competitive practices, whether through income or worldwide turnover. Previously, the imposition of the ‘penalty’ was contingent upon the calculation of ‘relevant turnover’, which exclusively encompassed domestic turnover.

Nevertheless, the modifications implemented by this legislation are not substantial, and the Digital Competition Law Committee will be responsible for addressing any substantial reformation of the competition framework, should it be deemed essential. The Bill was passed by the lower house of the Parliament in March 2023, subsequent to its referral to the Standing Committee on Finance for scrutiny in August 2022. Following this, several amendments were introduced in February 2023.

Developments from the Reserve Bank of India (RBI)

In this section the author has discussed all the regulation that have been passed by the RBI under the corporate law:

The Reserve Bank of India (RBI) has introduced a novel framework to facilitate the acceptance of ‘Green Deposits’ by Regulated Entities to enhance green financing. This framework is scheduled to be implemented starting from June 1, 2023. Green finance refers to the practice of providing financial support, such as loans and investments, to activities and initiatives that aim to address climate risk mitigation, adaptation, and other environmental objectives. Within this particular framework, the monies acquired through green deposits by corporations will be allocated towards financing activities or initiatives pertaining to renewable energy, energy efficiency, clean transport, climate change adaptation, and sustainable water and waste management. 

In order to enhance the attractiveness of India’s International Financial Services Centres (IFSCs) to domestic investors and to align remittances within IFSCs with foreign remittances under the Liberalised Remittance Scheme (LRS) framework, the Reserve Bank of India (RBI) has eliminated the obligation for the prompt repatriation of funds that remain unused in the Foreign Currency Account (FCA) within India’s IFSCs for a period of up to 15 days. The elongation of transaction deadlines for different reasons often poses issues for resident investors in complying with the need to repatriate any unused funds within 15 days of receipt. In February 2023, the Reserve Bank of India (RBI) implemented a policy that allows resident individuals to invest in securities within the International Financial Services Centre (IFSC) within the Liberalised Remittance Scheme (LRS) framework.

The Reserve Bank of India (RBI) amended the Master Direction on Know Your Customer (KYC) Direction, which was initially issued in 2016, on April 28, 2023. The modifications were implemented in response to the increasing inclination towards in-person loan transactions and to enable lenders to utilise digital documents, including those kept on the DigiLocker platform, as a means to minimise physical interaction with borrowers. 

Moreover, the alteration above was necessitated to integrate the amendments made on March 7, 2023, to the Prevention of Money-Laundering (Maintenance of Records) Rules, 2005. Additionally, it was done to provide guidance on the implementation process of Section 12A of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, and to revise specific instructions in alignment with the recommendations put forth by the Financial Action Task Force (FATF).

Updates from the Ministry of Commerce and Industry.

Here is the list of all the changes that have been introduced by the Ministry of Commerce and Industryunder corporate law:

In pursuit of the goal to enhance the nation’s exports to USD 2 trillion by 2030, the Government of India has recently introduced the Foreign Trade Policy (FTP), 2023. This policy came into force on April 1, 2023. The introduction of the new FTP signifies a transition from a regime that relies on incentives to one that is centred on remission and entitlement. In contrast to previous Free Trade Policies (FTPs) that were usually limited to a five-year duration, the present policy lacks a predetermined termination date. Instead, the Central Government will periodically revise and adjust the policy in response to evolving trade conditions at both regional and worldwide scales.

Upcoming Nuggets

The Securities and Exchange Board of India (SEBI) is currently soliciting feedback and suggestions from relevant parties about the proposed modifications to the SEBI (Alternative Investment Funds) Regulations of 2012. This initiative aims to enhance the governance mechanisms for Alternative Investment Funds (AIFs) by implementing several measures. These measures include the establishment of borrowing guidelines for Category I and II AIFs, the compulsory dematerialization of securities and investments, the extension of custodian appointment to all AIFs, the imposition of a maximum tenure for large-value funds that cater to accredited investors, and the mandatory renewal of AIFs’ registration.

The Securities and Exchange Board of India (SEBI) has recently implemented a proposed framework for the voluntary delisting of Non-Convertible Debt Securities (NCDS). To gather input and opinions from relevant parties, SEBI has extended an invitation for public feedback through May 26, 2023. Opinions were also solicited regarding the potential expansion of the scope to encompass non-convertible redeemable preference shares or other types of convertible instruments.

The Instruments and Exchange Board of India (SEBI) has put forth a proposal to broaden the scope of the Qualified Institutional Buyer (QIB) definition. This is intended to enhance the pool of prospective investors for debt instrument issuers and promote the debt market growth. SEBI has invited public feedback on these suggestions through May 29, 2023. The capital market regulator has suggested the proposed inclusion of specific investor categories in the Qualified Institutional Buyer (QIB) category. These categories include SEBI-regulated enterprises and multistate cooperatives with a net worth above INR 500 crores.

The Central Board of Direct Taxes (CBDT) has put out recommended modifications to the assessment of share valuation for tax purposes as outlined in the Income Tax Act of 1961. The proposed modifications seek to incorporate the consideration of non-residents, implement novel approaches to valuation, and establish a safe harbour provision of 10 per cent. The proposed revisions aim to enhance the efficiency of share valuation, offer explicit guidance for non-resident investors, and integrate essential protective measures.

India is now in the process of formulating a draught for its forthcoming Foreign Direct Investment (FDI) policy pertaining to the space sector. This policy is expected to permit a maximum of 100 per cent FDI in this domain. The newly implemented policy would facilitate international investment in three specific categories of space-related endeavours: 

1. The establishment and operation of satellites;
2. The operation of launch vehicles;
3. The production of space-related components and subsystems. The anticipated release of the draught is projected to occur during the next three months.

The Department of Consumer Affairs is now engaging in consultations with various stakeholders, which notably include representatives from the pharmaceutical industry. The primary objective of these consultations is to identify and implement effective measures to safeguard consumers’ interests. The proposals encompass the implementation of several measures, such as the inclusion of manufacturing and expiry dates on each individual strip, the utilisation of Q.R. codes, and the provision of the option to purchase required tablets separately rather than in entire strips. Currently, pharmacists engage in the sale of whole strips containing ten or more pills or capsules. This practice results in the wastage of medical resources and imposes an avoidable cost burden on customers.

Financial institutions are contemplating adopting a standardised system that would allow borrowers to respond formally before their loan accounts are labelled as fraudulent. This deliberation has been prompted by the recent decision of the esteemed Supreme Court in the case of State Bank of India & Others v. Rajesh Agarwal & Others[1]. In the near future, a committee will be established with the purpose of formulating a comprehensive framework. This framework will encompass various aspects, including the methodology for engaging with borrowers, the requisite documentation to be provided, the generation of reports, as well as the establishment of timetables, and the subsequent steps to be taken. Prior to finalising the criteria to be adhered to by all lenders in such instances, banks would collaborate with the Reserve Bank of India (RBI) to establish a shared framework.

Updates on the Listing regulations

The Listing (Amendment) Regulations, 2023, which were announced in January 2023, introduced certain clarifications to the Listing Regulations. Additionally, these regulations also relaxed the existing corporate governance requirements for Real Estate Investment Trusts (REITs) and Infrastructure Investment Trusts (InVITs). As a result, REITs and InVITs are now required to adhere to a distinct set of corporate governance norms starting from April 1, 2023. The scope of the term “Senior Management” has been expanded to encompass “functional heads” under its definition. Moreover, starting from the financial year 2022-2023, listed entities will be obligated to provide comprehensive information regarding their material subsidiaries in their Annual Reports. This information will encompass details such as the date and location of incorporation, as well as the names and appointment dates of statutory auditors.

Foreign Trade Policy, 2023

The Foreign Trade Policy 2023 (FTP) was officially announced on March 31, 2023, in accordance with the authority granted by Section 5 of the Foreign Trade (Development & Regulation) Act, 1992. It has been implemented as of April 1, 2023.

Key aspects

The Following aspects behind the Foreign Trade Policy of 2023:

• Duration of FTP: The current Foreign Trade Policy (FTP) represents a departure from previous policies in that it lacks a specified termination date. Moreover, future adjustments to the FTP will be undertaken as necessary without being tied to any specific timeframe. The process of granting permissions through online means without the need for a physical interface. The primary objective of the FTP is to streamline the clearance process for various permissions by implementing simplified procedures and leveraging technology. This includes reducing the time required for processing applications and facilitating immediate approval for exporters operating under the automatic route. The current objective is to minimise the processing time for certain permissions to a maximum of one day.
• Reduction in charges for Micro, Small and Medium Enterprises (MSMEs): The application user charges for advance permission and Export Promotion Capital Goods (EPCG) Schemes have been reduced, resulting in favourable outcomes for a significant proportion (55-60%) of exporters categorised as Micro, Small, and Medium Enterprises (MSMEs).
• Export promotion initiatives: The reduction of export thresholds for status holders aims to facilitate greater access to higher status for exporters and mitigate transaction costs associated with exports. The user’s text is too short to be rewritten academically.
• Merchanting trade reform: In order to enhance merchanting services originating from India, it will now be feasible to engage in the merchanting trade of restricted and forbidden commodities as per the export policy. Merchant trade refers to the process of transporting commodities between two foreign nations, bypassing Indian ports, with the involvement of an intermediary based in India. Adherence to RBI rules will be required, with the exception of goods/items that fall under the purview of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Special Chemicals, Organism, Materials, Equipment and Technologies (SCOMET) list.
• Rupee payment to be accepted under FTP schemes: As to the Reserve Bank of India’s circular on International Trade Settlement in Indian Rupees issued on July 11, 2022, the option to utilise Indian Rupees for the invoicing, payment, and settlements of exports and imports is a significant move towards internalisation. The benefits of FTP (Foreign Trade Policy) have been expanded to include the realisation of rupees through special Vostro accounts.
• Towns of Export Excellence (TEE): The towns of Faridabad, Mirzapur, Moradabad, and Varanasi have recently been recognised as Trade and Export Enclaves (TEEs) with the aim of fostering the development and expansion of these centres for export industry. Financial assistance will be granted to acknowledge unit associations under the Market Access Initiative Scheme, an export promotion programme, with priority given to projects aimed at enhancing exports through marketing, capacity building, and technological services. Service providers that have been certified by the DGFT or Department of Commerce and operate in these specific sectors are eligible for permission under the EPCG programme. Under this programme, eligible entities have the opportunity to get financial support in order to attend different trade shows and fairs, with the aim of exploring further marketing opportunities.
• Facilitation of e-commerce exports: The extension of all benefits provided by the Free Trade Policy (FTP) is to be applied to exports in the domain of e-commerce. The maximum allowable value for exports facilitated by courier services has been raised from INR 5 lakh to INR 10 lakh per cargo.
• EPCG scheme: The inclusion of the Prime Minister Mega Integrated Textile Region and Apparel Parks (PM MITRA) scheme as an eligible scheme to avail advantages under the Common Service Provider (CSP) Export Promotion Capital Goods (EPCG) Scheme has been implemented. Green Technology products, including Battery Electric Vehicles (BEV), different forms of vertical farming equipment, recycling and wastewater treatment systems, rainwater harvesting systems and filters, and green hydrogen, will now be eligible for a reduction in their Export Obligation requirements. These requirements pertain to the obligation to export products covered by authorisation or permission, with specific regulations regarding quantity, value, or both, as prescribed or specified by the regional or competent authority.
• Special one-time Amnesty Scheme for default in export obligations: An Amnesty Scheme has been implemented to address instances of noncompliance in export obligations by holders of advance authorisation and EPCG authorisation. Under this scheme, authorisation holders have the opportunity to regularise all pending cases of default in Export Obligation by paying the customs duties that were exempted in proportion to the unfulfilled export obligation. The maximum interest that can be charged on these duties is limited to 100% of the exempted amount. Interest is not applicable to the component of Additional Customs Duty and Special Additional Customs Duty. The plan is accessible within a restricted timeframe, concluding on September 30, 2023.
• Emphasis on streamlining SCOMET licensing procedure: Recently, policy modifications have been implemented, including the establishment of broad authorisations for the export of specific SCOMET goods. These changes aim to simplify the licencing process for such items, thereby enhancing the worldwide competitiveness of SCOMET item exports. There is an emphasis on streamlining policies to enable the exportation of dual-use high-end goods and technologies, including unmanned aerial vehicles (UAVs), drones, and cryogenic tanks, among others. The establishment of an effective export control system in India would enable Indian exporters to gain access to dual-use high-end goods and technology while simultaneously facilitating the exportation of controlled items and technologies falling under the Special Chemicals, Organisms, Materials, Equipment, and Technology (SCOMET) category from India.

MCA | Amendment Rules 2023 to the Indian Accounting Standards

On April 1, 2023, the Ministry of Corporate Affairs (MCA) released a notification regarding the implementation of the Companies’ Indian Accounting Standards Amendment Rules, 2023, which will come into effect on the same date. The aforementioned modifications adhere to the guidelines set forth by the Institute of Chartered Accountants of India (ICAI) and the International Financial Reporting Standards (IFRS). They constitute a component of the government’s endeavours to harmonise the accounting standards of India with those of the international community, as well as to enhance the calibre and transparency of financial reporting within the country.

From the Docket: The Supreme Court has provided legal redress to private airport developers in the Central GST Delhi – III v. Delhi International Airport Ltd.[2] case. According to the ruling, it has been determined that the private developers of airports are not obligated to bear the burden of service tax for the User Development Fee imposed on passengers for the purposes of operating, maintaining, and enhancing the Mumbai, Delhi, and Hyderabad International airports. The court acknowledged a tax circular from 2006, which provided clarification that the imposition of service tax would not apply to the collection of taxes, whether they are sovereign or statutory dues.

In the legal matter of Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd.[3], a panel consisting of Justice J K Maheshwari and M. M. Sundresh expressed that adopting a meticulous and excessively technical perspective will undermine the fundamental principles of consumerism. The court expressed that the Consumer Protection Act possesses a commendable goal, and the legislation enacted in 2019 enables consumers to access dispute resolution forums through a highly adaptable mechanism. The primary objective of this initiative is to foster consumerism in the nation. Any technical method employed in interpreting the provisions against the customer would undermine the enactment’s underlying goal.

In the case of N.N. Global Mercantile Private Limited v. M/s. Indo Unique Flame Ltd. &Ors.[4], the Supreme Court has established that failing to register and stamp an arbitration clause within a contract result in its unenforceability.

The Supreme Court, in the matter of Mansarovar Commercial Pvt Ltd v. Commissioner of Income Tax, Delhi[5], has pronounced that the determination of tax jurisdiction is contingent upon the geographical location where the control and management of a company’s operations are being carried out, rather than the place of registration of the company as per the provisions of the Income Tax Act, 1961.

Conclusion

The field of corporate law in India is seeing tremendous growth and is of great importance within the legal arena. The Central Government’s commitment to fostering company participation in the country’s economic development is apparent through several programmes, including the ‘Make in India’ and ‘Skill India’ programmes. The execution of these initiatives has resulted in an increased need for skilled and versatile employees who can satisfy the demands of these organisations, enabling them to effectively establish their presence and make substantial contributions to the overall economic development.

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