sunitashaw (Company Secretaries) (76 Points)
10 September 2015We are Pvt. Ltd. co. Having both promoter's and non- promoter's shareholders . My query is how to fill the details of non promoters in mgt-9 point no iv (i) I.e Category wise shareholding , where options are given only for promoters( Indian & Foreign) and for public shareholdings ( institution & non institution)????
P C Agrawal
(Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad)
(8229 Points)
Replied 11 September 2015
Option-I:
All individuals can be shown as promoters.
[It may be noted that as per Sec.2(69)(a) a person who is identified in the annual return as such is a promoter. Hence company can identify any person as a promoter.]
Option-II:
Such persons can be included in individuals under Item VI(i)(B)(2)(b) [Public Shareholding -- Non-Institutions -- Individuals].
sunitashaw
(Company Secretaries)
(76 Points)
Replied 11 September 2015
Thank you sir for your reply.
But we have non -promoters consist of pvt. ltd. co. and LLP.
P C Agrawal
(Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad)
(8229 Points)
Replied 11 September 2015
In that case Option-I:
All companies and LLPs can be shown as promoters.
[It may be noted that as per Sec.2(69)(a) a person who is identified in the annual return as such is a promoter. A person who has control over the affairs of the company, directly or indirectly, whether as a shareholder, director or otherwise is also a promoter. Hence company can identify any person as a promoter. As per Section 3(42) of General Clauses Act 'person' includes company or association or body of individuals, whether incorporated or not. ]
Option-II:
Such company/LLP can be included in individuals under Item VI(i)(B)(2)(a)(i) [Public Shareholding -- Non-Institutions -- Bodies corporates - Indian].
Snigdha Das
(CS)
(46 Points)
Replied 11 September 2015
Sir,
I have the same problem.
In my case Company has both Promoter & Non Promoter shareholders which includes (Individual, Body Corporate, LLP). In F.Y 2014-15, Company has borrowed unsecured loan from XY Pvt Ltd (NBFC Co. i.e - Non Promoter Shareholder) and one of the Directors is the same.
My query is that can I show that NBFC Company from which the Company has borrowed loan as a Promoter?
P C Agrawal
(Registered independent director Past Chairman of Aurangabad Chapter of ICSI Practicing Company Secretary at Aurangabad)
(8229 Points)
Replied 14 September 2015
Friends, the traditional meaning of the term promoter (i.e. a person who is involved in formation of a company) is not more applicable under CA 2013. The definition given in Sec.2(69) is very wide and now company can identify any person as its promoter in the annual return. In your case also NBFC can also be identified as a promoter.
However, one precaution needs to be taken here. The effect of declaring a person as a promoter is that he will be liable for action for non-compliances by the company in certain specified sections where promoter has also been made liable in addition to directors and other officers in default [e.g. Sec.7(6), 35(1)(c), 42(10) etc.]. Hence to avoid any dispute in future, it will be advisable to take his consent for his name being declared as a promoter, though there is no provision for the same in the Act.
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