Reply of other pracisitng CA Firm :
As per the compliances of section 73 (acceptance of Deposits) of New companies Act, 2013, a company is free to accept any amount from a person who at the time of the receipt of the amount was a director of the company provided that the director from whom the money is received, furnishes to the company at the time of giving the money, a declaration in writing to the effect that the amount is not being given out of the funds acquired by him by borrowing or accepting loans or deposits from others.
It means that company can freely accept any money or borrow any amount from its directors but only the condition that, he should be director at the time of accepting Deposits.
As per Section 180(1)(c) (restriction on powers of Board) of New Companies Act, 2013, if borrowings of Company Exceeds Aggreate of its Paid up Capital and Free Reserves (FR includes Profit and Security Premium), apart from temporary loans obtained from the companies banker in the ordinary course of Business, then Board of Directors of a company can borrow in excess only by paasing Special Resolution with the consent of Shareholders.
Provisions of section 180(1)(c) will be applicable from 12th September, 2014, it means if borrowings exceed from its paid up capital and free reserves then company will pass SR on or after 12.09.2014.
Reply of your Query 1:
we will see the status of a person as on 1.04.2014, if a person is a director as on 01.04.2014 then he will only give an declaration in physical form and Company is required to file the same along with copy of SR if amount exceeds of Its paid up capital and FR.
Hence amount of Rs. 10 Lacs existing as on 01.04.2014 as a loan from its director will not attract the compliances of section 73.
Hence there is no need to file DPT-3 or DPT-4 because if the person (if relative of director from whom the loan is accepted) was not cover under deposits as per old companies Act nor as per New companies act (because the person became a director).
Reply of Your Query 2:
We will see the status as on 01.04.2014, there should be one thing that is Directorship as on 01.04.2014 of the person from whom the loan is accepted.
In this case, amount of Rs. 13 lacs will be treated as borrowings from Directors and no need to file DPT-4 (because DPT-4 is for those persons who will not cover under the definition of deposits as per old compliances but as per new companies act, cover under deposits) but as per our case if a person is relative of director from whom the loan is accepted hold the same position as on 01.04.2014 then we will file DPT-4 but we changed the status of relative by giving him position of director.
Further it may be noted that :
Section 73 is applicable w.e.f. 01.04.2014 i. e. loans and advances taken after 01.04.2014 will fall in the purview of Section 73 and other applicable Sections of Companies Act 2013.
for Loans accepted before 01.04.2014, requirement is to :
file few forms (DPT-4 etc) and pay back the loans falling in the definition of deposit before 31.03.2015 ( earlier repayment in case of deposits maturing before 31.03.2015)
reaccept the deposits after making the relevant compliances as per New Companies Act
Please give feedback on the same.
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