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Rent to shareholder or relative of director

vivek somani (Accounts and taxation head) (91 Points)

19 July 2014

Dear all,

Please check the validity of the following transaction and also advice the related comlpliance

Background:

X Private Limited having Two director say M and N .

N is the son of M.

N and M both sold their 44% share to HUF and held with only 6 % sharing

HUF Gifted those shares to wife of M and N say A and B repectively

Transaction:

Now X ltd pays office rent 45000/- per month to A who is wife of M and mother of N holding 44% Share

and also 2 month as security.

Is the above transaction valid as per companies act 2013?

Is there any additional compliance or form required to file for the same transaction under com. act 2013?

Also share the impact of Income tax Act on the same.

Thanks in advance

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CS SAJU PHILIP MANALEL (Company Secretary in Practise) (157 Points)
Replied 21 July 2014

As per Section 188 of CA 2013, except with the consent of Board by a resolution passed in its meeting, no comany shall enter into the transaction of Leasing of property of any kind [clause (c)] or availing rendering of any service [clause (d)] with a related party. Since the property belongs to a related party of the Director, this transaction squarly falls under Section 188(1).

Further in the following situations every such related party transaction require prior approval of members in General Meeting by Special Resolution:

1. if the paid up capital of the company is more than Rs.10 crore; or

2. the amount involved exceeds the limits prescribed under Rules(here it means ten percent of the net worth or exceeding ten percent of turnover)

and in the GM the member interested in the Transaciton shall not participate and vote.

Exemption: Nothing in this section will be applicable if the transaciton is done

a) in the ordinary course of business of the Company AND

b) at arm's length price.

These are the provisions of CA 2013. For to determine as to whether your transaction falls under the exempted category or not, the call must be yours.

Regards

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