Entry options to invest in India csgaurav+919990694230


Entry options to invest in India csgaurav+919990694230

Entry options to invest in India csgaurav+919990694230

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Fast track exit mode cos act 2013


Conditions for FTE

  • The defunct company should have “Nil” Assets & Liabilities and
    • has not commenced any business activity or operation since incorporation; or
    • is not carrying over any business activity or operation for last one year before making application under FTE
  • A Company which has “Active” status or identified as “Dormant” by the MCA

Companies not eligible for FTE

  • Listed Companies
  • De-listed Companies
  • Section 8 Company (corresponding to Section 25 Company under the Companies Act, 1956)
  • Vanishing Companies
  • Companies under Inspection/Investigation pending in any Court
  • Companies where order under Section 234 of the Companies Act, 1956 has been issued and reply thereto or prosecution, if any, is pending in the court
  • Companies against which prosecution for a non-compoundable offence is pending in court
  • Companies which have accepted public deposits and has made defaults in repayment of the same
  • Companies having secured loans
  • Companies having management disputes
  • Companies whose filing of documents has been stayed by Court or Company Law Board (CLB) or Central Government or any other Competent Authority
  • Companies having dues to income tax, sales tax, central excise, banks and financial institutions or Central Government or State Government or any local authorities

How to apply for FTE?

The application shall be made in Form FTE accompanied by filing fees of Rs. 5,000/-.

Attachments to Form FTE

  1. Affidavit (as per “Annexure A” to the Circular) to be given individually by all Directors;
  2. Indemnity Bond (as per “Annexure B” to the Circular) to be given individually by all Directors;
  3. Statement of Accounts (as per “Annexure C” to the Circular) duly certified by Practicing Chartered Accountant or Statutory Auditor of the Company as the case may be;
  4. Board Resolution stating to Strike off the name of the Company under FTE Mode;
  5. Board Resolution for closure of Bank Accounts;
  6. Confirmation letter duly signed by the concerned Banks Official that the Bank Account of the Company is closed;
  7. The company shall disclose pending litigations, if any, involving the company while applying under FTE;
  8. Form FTE shall be certified by Practicing Chartered Accountant / Practicing Company Secretary / Practicing Cost Accountant.

Note: In case, the applicants name are not available in database of directors maintained by the MCA, a certificate from Practicing Chartered Accountant / Practicing Company Secretary / Practicing Cost Accountant along with membership number certifying that the applicants are present Directors of the Company. In such cases the applicants will not be required to file Form DIR-12 (earlier Form 32) and Form DIR-3 (earlier Form DIN 3).

Procedure adopted by the Registrar of Companies (ROC)

The Registrar on receipt of application shall examine the same and if application found in order, it shall intimate the Company by issuing a notice under Section 560 (3) of the Act giving 30 days time, stating that unless cause is shown to the contrary, the name of Company be struck off from the register and the lead to dissolution of the Company.

The Registrar on being satisfied shall strike off the name of the Company from its Register and send notice under Section 560 (5) of the Act for publication in the Official Gazette and the Company stands dissolved from date of publication of the notice in the Official Gazette.

Note: A Company dissolved under Section 560 of the Act can be restored before expiry of 20 years from the date of publication of notice in the Official Gazette by order of the Court. The application for restoration can be made only by the Company, member or creditor. It must be shown that on the date of dissolution of the Company, the Petitioner was a member or creditor. The procedure for application for restoration should be as per provisions of Section 560 (6) of the Act.

 

 

how to make real estate investment trust in India CS GAURAV +919990694230


SEBI (REITs)
Regulation 2014
:-


S.No.
Particulars
Regulations
1.
Sponsor
•   Maximum number of sponsor restricted
to
3
•   Minimum holding for each of the sponsor shall be equivalent to
5% of the no. of units of REITs (i.e. Post initial offer size)
    Aggregate
 Net  worth  of  sponsors
 shall  be  of  atleast  Rs
 100
crores. Moreover minimum
networth requirement for individual
sponsor is Rs 20 crores.
    Minimum 5 years experience in development of real estate or
fund management in real estate
industry. Moreover, where the
sponso is  
a   developer,  at 
 leas
 two   projects   have   been completed.
2.
Manager
•   Minimum Net worth Rs. 10 Crores.
    Minimum 5 years experience in fund management or advisory or
property management in the real estate industry.
    Atleast  50%  of  directors
 or
 members
 of
 governing  body  as independent and not directors or members of governing body
of another REITs.
    Entered  into  an  investment
 management  agreement
 with
 the trustee which provides for the responsibilities of the manager in accordance with regulation 10
3.
Trustee
    Registered 
 wit
 SEB under 
 SEB (Debentur
 Trustees)
Regulations
1993  and  not  an 
associate  of  the  sponsor  or
manager.
•   Having such
infrastructure and personnel as specified by SEBI.
4.
Minimum Asset
Criteria for listing
    In order to offer units to public the value of all the assets owned by REIT should be at least Rs 500
crores.
•   The offer size is not less than
Rs.
250 Crores.
•    Initial offer of REIT units has to
be through public issue only.
5.
Investment
Conditions
•   Investments only permitted in
following channels:
SPVs (only if SPV holds 80% of the properties directly)
Properties
Securities







TDRs (Transferable Development Rights)
    Cant invest in vacant land,
agriculture land and mortgages other than
mortgage backed
securities.
    At least 80% of the value of REIT shall be invested in
completed and rent generating
properties. Lockinperiod of 3 years from
date of purchase.
    Investment in TDRs and
Unutilized
Floor Space Index
(FSI) now permitted   under   second   tie
 o Investment   mode 
 with   a maximum cap
of 20% of REITs Assets.
    If
 investment
 in  under  construction  properties
 under  the  sub second tier of Investment mode with maximum cap of 10% of
REITs Assets then,
l
ockinperiod of 3 years from date of completion.
    Not less than 75% of the revenues of REITs and SPVs, other
than  gain  arising
 from  disposal  of
 properties,
 shall  be  from rental, leasing and income incidental to leasing of real estate.
6.
Approval of
Unitholders
    In case of sale of properties of REIT or SPV exceeding 10% of the value of assets.
    Purchase of property for a value greater than 110% of the value
as assessed by valuer or sale of property which is less than 90%
of the value as assessed
by the valuer is allowed if approved by Unit Holders (Valuation
by two independent valuers is mandatory).
    In
 case  of  transactions  with  related
 parties  on  crossing
 of
stipulated norms.
    If the aggregate consolidated borrowings and deferred payments
of the REIT net of cash and cash equivalents exceed twenty
five
per cent. of the value of the REIT assets, credit rating
from credit
rating agency is also required along with approval of unitholders.
•   With
respect to the annual meeting of unit holders, approval of
latest annual accounts and performance of the REIT
auditor and fees of such auditor, as may be required
latest valuation reports
appointment of valuer, as may be required
any other issue including special issues as specified under subregulation (6)
    Any
 issue,  in
 the  ordinary
 course  of
 business,
 which  in
 the
opinion of the sponsor(s)
or trustee or manager, is material and
requires approval of the unit holders. For instance- Any change in
 manager
 including 
removal
 of
 the
 manager
 or
 change  in
control  of
 the
 manager
any  material
 change  i
investment strategy or any change in the management fees of the REIT
7.
Cash Flows
    Not less than ninety per cent of Net distributable cash flows of the
 REIT
 shall  be
 distributed  to
 the  unit  holder
once  in  6 months.
    However if sale proceeds from any property are reinvested in
another property then
there is no requirement of distributing 90%





of the proceeds to the Unit Holders.
8.
Related Party
Transactions
    Transaction
 such   a acquisition 
 o sal
 of  propertie
 or
investments into
securities in
a financial year; or
•   Value of funds borrowed from related parties in a financial year requires previous approval of Unit holders if the value of transaction exceeds
 10%  of  the
 value
 of
 REITs  or  consolidated  borrowings
respectively
9.
Borrowings
    Aggregated
 consolidated  borrowing
 and
 deferred  payment  of REIT net of cash and cash equivalents shall never exceed 49% of the value of REIT assets.
10.
Valuations
    The valuer shall not be an associate of the sponsor(s) or manager or
trustee and
shall have not less than
five years of experience
in valuation
of
r
eal estate.
    Full
 valuation  report
 shall  include
 the  mandatory  minimum
disclosures as specified
in
Schedule V to
these regulations.
    A full valuation
shall be conducted at
the end of financial year i.e
at 31st  March by the valuer within 3 months along with half
yearly valuations.
    Prior to any issue of units to the public and any
other issue of units  as  may  be  specified  by 
the  Board, 
the  valuer  shall
undertake full valuation of all the REIT assets and
include a summary of the report in the offer document.

Other Conditions:
    No unit holder of the REIT enjoys preferential voting or any other rights over another unit
holder.
    Any
person other than the sponsor(s) holding units of the REIT prior to initial offer shall hold the units for a period of not less than one year from the date of listing of the units subject to circulars or guidelines as may be specified by the Board.
•   General period
of disclosure of information, reports is half yearly.
•   Parties to the REIT are Trustee, Sponsor and
Manager.


     Under both the initial offer and followon offer, rights issue, QIP, minimum subscription size
for
units of REIT shall be Rs 2 lakhs.




SEBI (Infrastructure Investment
Trusts) Regulations, 2014
:-


On 26th September 2014, SEBI notified norms for InvITs which are somewhat similar to REITs. Salient features of the InvIT Regulations are as follows


    InvITs shall be set up
as a
trust and registered
with
SEBI. It shall have parties such as Trustee, Sponsor(s),
Investment Manager and Project Manager.
    InvITs shall invest in infrastructure projects, either directly or through SPV. In case of PPP projects, such investments should only be through SPV. An InvIT shall hold or propose to hold
controlling
interest and more than 50% of the
equity
share capital or interest in the
underlying SPV, except where the same is not possible because of a regulatory
requirement/ requirement emanating from the concession
agreement.
•   Sponsor(s) of an InvIT shall, collectively, hold not less than 25% of the total units of the
InvIT on post issue basis for a period
of at least 3 years.
     The proposed holding of an InvIT in the underlying assets shall be not less than Rs. 500 crore and the offer size of the InvIT shall not be less then
Rs.
250 crore at the time of initial offer of
units.


     An InvIT which proposes to invest at least 80% of the value of the assets in the completed and revenue generating infrastructure assets, should raise funds only through public issue of
units. The minimum
subscription from any
i
nvestor in initial and followon offer shall be ten
lakh
rupees.



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Formation of Company with Charitable Objects


License for New Companies
1.    
Make an Application
To incorporate a
company under this Section, an application shall be made in Form No. INC-12
Application shall be accompanied by the following documents:
a)    
MOA & AOA of
the company
b)   
Declaration as
given in Form No. INC-14 by an Advocate, a Chartered Accountant, a Company
Secretary or Cost Accountant in practice, that the draft MOA & AOA have
been drawn up in conformity with the provision of section 8 and rules made
there under and all the requirements under section 8 has been complied with.
c)    
An estimate of
future income & expenditure of the company for next 3 years, specifying the
source of income and the objects of the expenditure.
d)   
A declaration by
each of the person making the application in Form INC-15.
License for Existing Companies
When Central government
is satisfied that a person or an association of persons proposed to be registered
under this Act as a limited company –
a)    
Has in its
Object the promotion of commerce, art, science, sports, education, research,
social welfare, religion, charity, protection of environment or anu such other
object
b)   
Intends to apply
its profit in promoting its objects
c)    
Prohibit the
payment of dividend.
Steps to Incorporate Section 8 Company:
1.   Obtaining Directors Identification
Number (DIN)
a.      Applicant
to Obtain DIN if he does not have the DIN.
Checklist
for Obtaining DIN:-
b.    
Signed copy of PAN
c.    
Signed copy of Address Proof
d.    
 Color Photograph
e.    
Area of Occupation (Self employed,
Professional, home maker, Student, Serviceman)
f.      
Educational Qualification
Certificate
g.    
Email address
h.    
Mobile number
i.      
Place of birth
Note: – For Obtaining DIN applicant must have the
Digital Signature.
For
obtaining Digital Signature following documents are required:-
a)     Signed
original application
b)    1
color photograph of the applicant
c)     Photograph
should be crossed signed on the application
d)    Signed
copy of PAN
e)     Signed
copy of Address proof
f)      Email
g)     Mobile
number
         
2.  
 Selecting a name
a.   The
promoter under a proposed name shall make an application for Reservation of name in Form INC-1 to Registrar of
Companies of the state in which registered office of company is proposed to be
situated.
b.   Applicant
is required to give maximum 6 alternative names to the registrar.
c.   The
proposed name shall not be Identical/ similar to the name of a Company already
exist.
d.   The
proposed name shall not be registered in the Trade marks
e.   If
the proposed name contains name of any other person than promoters or their
close blood relatives then NO Objection Certificate from that other person
would be required.
f.     If
the proposed name includes name of the relatives then proof of relation would
be required.
g.   If
the promoter have 1 specific name in mind then certification from Practicing
Professional is required.
3.  
Memorandum
in Form No INC-13
The Memorandum of association of
the proposed company shall be in Form
No. INC-13
4.  
Make an Application
To incorporate a
company under this Section, an application shall be made to Registrar in Form No. INC-12
Application shall be accompanied by the following documents:
e)    
MOA & AOA of
the company
f)     
Declaration
as given in Form No. INC-14 by an
Advocate, a Chartered Accountant, a Company Secretary or Cost Accountant in
practice, that the draft MOA & AOA have been drawn up in conformity with
the provision of section 8 and rules made there under and all the requirements
under section 8 has been complied with.
g)    
An estimate of
future income & expenditure of the company for next 3 years, specifying the
source of income and the objects of the expenditure.
h)    
A declaration by each of the person making
the application
in Form INC-15.
5.  
Give Notice in News-paper
Within a week from the date of making
the application to the Registrar of Companies, publish a notice, and a copy of
the notice, shall be send forthwith to the registrar, in Form no. INC-26, an shall be published:

1. At least once in a vernacular newspaper in the
principal vernacular language
 of
the district in which the registered office of the proposed company is to be
situated, and circulating in that district, and

2. at least once in English language in an
English newspaper
 circulating
in that district; and

3. On the websites as may be notified by the
Central Government. Copy of such notice in newspapers shall be submitted to the
Registrar of Companies immediately after their publication.
6.   Approval of other authorities
The Registrar of Companies may require
the applicant to furnish the approval or concurrence of any appropriate
authority, regulatory body, department or Ministry of the Central or State
Government(s)
7.   Registrar to decide on granting of license
The Registrar will wait for 30 days for
objections, if any, of any person pursuant to notice published in newspapers.
The Registrar may also consult necessary authorities and regulatory bodies.

Thereafter, the Registrar of Companies at its
discretion may grant the license.
Sec 8(4) (i) a company
registered under this section shall not alter the Provisions of its MOA or AOA
except with the previous approval of the Central Government.
Sec 8(6) The Central
Government may, by order, revoke
such license granted under section 8, if:
a) the company contravenes with the requirement of section 8
b) the company contravenes
the conditions subject to which license is issued; or
c) affairs of the company are conducted in a fraudulent manner or in violation
of object of the company or prejudicial to the interest of the public.
Further, the Central Government may direct the company to change its status
from section 8 company to either private or public limited company. And also
direct it to change its name to include the word “Limited” or words “Private Limited”.
However, before making order, the Central Government shall give reasonable
opportunity of being heard.
Upon receiving such an order, where the license granted to a company registered
under section 8 has been revoked, the company shall intimate to the Registrar
to convert its status and change of name accordingly.

Sec 8(7)
On revocation of license the Central Government may, by order, if it is
satisfied that it is essential in public interest, direct that the company be
wound up or amalgamate with another company registered under this section
having similar objects.
However, before making
order, the Central Government shall give reasonable opportunity of hearing to
the company.
Where the license is revoked and the Central Government
is satisfied that in public interest, such company shall amalgamate with
another company registered under section 8 and having similar objects, then the
Central Government may order details of amalgamation like forming a single
company, transfer of assets and liabilities etc. This right of the Central
Government prevails even if they are contrary to other provisions of the
Companies Act, 2013.
Sec 8(10) Section 8 company can amalgamate only with other section 8
company and having similar objects.
Sec 8(11) Penalty
Section 8 company who makes
default in complying with the provisions of section 8 shall be punishable with
fine which shall not be less than Rs. 10,00,000/- but which may extend to Rs.
1,00,00,000/-.

Further, the directors and every officer of the company who
is in default shall be punishable with imprisonment for a term which may extend
to 3 years or fine which shall not be less than Rs. 25,000/- but may extend to
Rs. 25,00,000/- or with both, imprisonment and fine.





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Exemptions to Private companies under ease of foing business India


SECTION
EXEMPTION PROPOSED BY GLOBALCA TEAM
EXEMPTION NOTIFIED BY MCA
MAJOR IMPACT/
EFFECTS OF NOTIFICATION ON PRIVATE COMPANIES
Section73  (2) of
Chapter
V (Prohibition on Acceptance
of Deposits from Public)
Exemption: Shall not Apply to Private Companies
provided – It has less than 50
members
and  if they accept        monies from their
 members
not exceeding
25% of aggregate
of  the  paidup capital and free reserves  or  100  %  of
the paid up capital, whichever is more
AND
Which  
informs  the detai of  such  
monies to the Registrar.
Private Companies borrowing monies from members upto  aggregate limit of paidup
share capital   
freereserves, need 
 not
 requir
to comply with
 conditions mentioned     in      section
73(2)(a) to (e).
However  details  
of money so borrowed shall be filed with ROC
 in manner as  may   be specified
Private Companies may borrow from its members
without complying with   the  following conditions:
(i)         Issuance
of circular and filing    its    copy    with ROC
(ii)      
 Maintaining      Deposit
Repayment Reserve
(iii)       Providing       
 Deposit
Insurance
Section   141  (3) (g) Chapter  X– Eligibility,
Qualifications, disqualifications of Auditor
Whole Exemption
Shalnot  apply in respect of appointment of 
auditors by  private companies.
Text
of notification:-
“Other  tha OPC, Dormant,  Small Companies and  Private Companies 
having  paid up 
 capital
 of   les
 than Rs.  100  Crores shal
be inserted      
 after          20
Companies.
Limit  of  20
companies
 shall include only:
(i)       
 Public Companies
(ii)       
Private        Companies whose  Pai up
 capital is Rs. 100 Crore or more



Section 180 of
Chapter XII
Restriction on Powers    
of Board
Whole   Exemption Shal
not  apply to private
companies having equal  to
or less than
 50
members.
This Section shall not apply to Private Companies
PrivatCompanies  are allowed
to exercise the following powers without shareholders approval:-
(i)
Borrow any amount exceeding
paidup capital  & free reserves
(ii) Sell/lease/dispose off whole  or substantially the whole of
the undertaking
(iii) Invest         in        trust securities the 
amount of
compensation received
 b
 it  
as   a result  of merger or amalgamation
Section 185 of
Chapter
XII– Loan
to Directors
Shalnot
 apply to private
companies
havinborrowings from   
banks    and financial institutions or anybody corporate
not more  
 than  
 twice    of their  paidup
capital  or Rs. 50
crore, whichever is lower
AND
whose share   capital   is devoid  of  any investmen
by  any other  body  corporate.
This   Section   shal
 apply only   
to   private Companies which  has :
1.  
Body   Corporate  as its Shareholder
2. Borrowed    money from    Bank/ Financial
Institution/     
 Body
Corporate exceeding lower of the following:-
i Twice  its
 Paid up capital
ii. Rs. 50 crore
3. No            repayment default     subsisting of  such   borrowings at    time    of 
 giving loan
Problem of giving
 loans/ guarantee/security by Group Companies is possible now.



Section 188 of
Chapter XII
Related Party Transaction
Whole Exemption
1. Does      not      include Holding,
Subsidiary, Associate Company and sister concern(subsidiary
of holding)
in the definition of Related Party
 (Section 2(76))
2. Member     
 although being  related party to the concerned resolution 
 can    still cast
 his  vote  
at General Meeting
.
1. Transactions    
 between Holding
& Subsidiary companies
shall not be considered 
as  Related Party   
 transactions    and they  are not required
to comply with
 the requirements of  Section
 
188.
2.   Now  
 in    case  
 company enters into any contract/ arrangemenwith 
 a member whis related party, 
that   member  can
stilcast  his  vote  in General  meeting  on   the said resolution.
Section 62 (1) (a)
&    62  
 (2)    of
Chapter IV
(Further issue of
capital)
Words “not  being less than fifteen
days  and not  exceeding thirty
days shall  be substituted with  “not being less
 than seven days     and     not exceeding  
fifteen days
Sending
of offer letter minimum 3 days  period before opening of offer
AND
Minimum & maximum offer
 period 
of  15  &  30 days  respectively
Can   be  reduced,
 if  90%
member   give   
their consent in writing/electronic mode
Where
 there  is an
emergency,
time  limit  can  be reduced with the consent of shareholders
Section   160 
 &
162  of
 Chapter
XI
Section 160 Right of persons other   than retiring
directors       
 
to stand            for directorship Section   162   Appointment of directors
 to   be voted individually
Whole Exemption
These Sections 
shall not apply to Private Companies
Section 160: Amount of Rs. 1
Lakh
 need
 not  be  deposited by the person
who has submitted his candidature to b
appointed as  director before  14 days  of the date
 of General Meeting.
Section 162: More  than  
One director can be appointed by single resolution



Section   101107
&    109   
of Chapter VII- Section 101 – Notice  
of Meeting
Section
102– Statement to  be annexed 
to notice
Section
103– Quorum for meeting
Section 104
– Chairman of Meeting.
Partial Exemption: These exemptions shall apply unless  otherwise provided in the respective sections  ;
OR
Unless Articles of Companies provide alternatives
These Sections 
shall not apply to Private Companies
Now      Private    Companies may override the below mentioned provisions b
its articles:-
(i)        Alter 
 the   content  &
length of notice
(ii)       Reduce            quorum below 2
(iii)     Increase     
the     time limit of morthan   48 hours
for depositing Proxy   
 form    
before the date of meeting of the Company
Section 43 of
Chapter
IVKinds of
Share Capital
Section  47
Voting Rights.
Whole Exemption
Section 43,
47 shall not apply where memorandum  or articles  of association of
the  private company so provides
Where
 the 
Memorandum
of Association or Articles of Association provides the Kinds  
of  shar Capital (Section 43)
and  Voting Right (Sectio
 –  
47) otherwise than  so prescribed, then  provisions provided in Memorandum
of Association o
 Articles   
o Association shall
prevail.
Section 196 (4) Section  
196  (5) of Chapter
XIII– Appointment
of MD,     Whole time  Director or Manager.
Whole Exemption
This Section shall not apply to Private Companies
Now Whole Time Director, Managing 
Directo or Manager  can  
be  appointed by directors
on terms  and conditions and  remuneration as fixed by directors.
It does not require
any ratification
 by  
Shareholders in the General Meeting of Company  and   approval  by the Central Government.













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