Daily Blog

Hello readers! In this blog you will find daily updates, news, etc. on what is going in the field of corporate governance around the world but mainly focusing on the recent developments on this topic in India.

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Admission and confession as defined in Indian Evidence Act, 1872

‘Admission’ have been defined in Section 17 of the Indian Evidence Act, 1872 as oral or documentary statements, or those in electronic form that imply or lead to any fact that is relevant or to any circumstances that are relevant. Only those statements that fit the description given in Section 18 to 20 are included in this definition.

‘Confessions’ on the other hand, are defined under Section 24 to 30 of the Act. The term ‘Confession’ has been defined by the Judicial Committee in Pakala Narayanaswami vs Emperor, 66 Ind App 66 : (A.I.R. 1939 P.C. 47) : “A confession is a statement made by an accused which must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence.”

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Benami transactions- an introduction:

What is a benami transaction?

As per section 2(9) of the benami transactions prohibition act:

A transaction or agreement where—

A property is transferred to or is held by a person and the consideration for such property has been provided or paid by another person; and

The property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration , except when the property is held by

A karta or a member of a Hindu Undivided family, as the case may be, and the property is held for the benefit or benefit of other members in the family and consideration for such property has been provided or paid out of the known sources of the Hindu undivided family.

A person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executing, partner, director of a company, a depository or what is printers an agent of a deposited under the depositories act, 1996 and any other person as may be notified by the central government for this purpose.

Any person being an individual in the name of his spouse or in the name of any child Sachin Rachel under consideration present property has been provided or paid out of known sources of the individual.

A person in the name of his brother or sister or Daniel ascendant or descendant, the net names of brothers or sisters Alinia resident of descendant and the individual appear as joint owners in any document under consideration for such property has been provided on the note of the known sources of the individual.

Transaction or an arrangement in respect of a property carried out or made in a fictitious name; or

Transaction online arrangement in respect of a property worth the owner of the property is not available or deny knowledge of such ownership;

A transaction or in arrangement in respect of the property that the person providing the consideration is not traceable or fictitious.

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Securities market intermediaries:

Registrar to an issue:-

Person who is responsible for maintaining the details of shareholders (register of members) on behalf of the company.

Provide share holding patterns to the company on regular intervals.

Collect applications from investors with respect to the issue of securities.

Maintain record of application and fund received from the investor or payment made to the seller of securities.

Determining the basis of allotment of securities in consultation with the stock exchange, finalising the list of persons who are entitled for the allotment of securities.

Processing and dispatching the allotment letter, refund order, certificates and other related documents with respect to the issue.

Share transfer agent:-

Person responsible for maintaining the details of all transfer transactions.

To facilitate the transfer of shares when the securities are in physical form.

Deal with all matters connected with the transfer and redemption of securities.

Note: If the total number of securities holder in any company/body corporate exceed 1 lakh then such company/body corporate is mandatorily required to have in house share transfer department.

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Who is a compliance officer?

A senior officer who has been appointed and designated and reports to the board of directors/head of the organisation.

Person who is financially illiterate and capable of understanding the requirement with respect to the legal and compliance requirement under the insider trading regulation.

Person who shall be re sponsible for preservation of unpublished sensitive information and maintenance of record in compliances of the policies and procedure of the company.

Person who shall be responsible for monitoring trade and implementation of the code and function under the supervision of the board of directors of a listed company or head of the organisation.

This definition seemed a little necessary so I'm putting it out there :)

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Statehood (recognition of a state) under international law

Yesterday while I was watching a lecture online my professor had asked an interesting question to the students which was “What is the criteria for a state to be given the title of a state?”At first this question may sound a little simple. After I read and researched a little about this question I realised it isn't. In fact it sounds so silly that I wouldn’t have asked myself this question otherwise. Well this can be called a summary of what are the essential conditions a state must fulfill to get the statehood.

The international community is the community of sovereign states at an international platform. For any state to enjoy the rights, duties and obligations of international law and to be a member of the international community, recognition of the entity as a state is very important. Only after recognition of the entity as a state, it becomes acknowledged by other states who are a member of the International Community. International law considers the act of recognition as an independent act of the existing statehood community.

Essentials for recognition as a state:

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down following essentials that an entity should possess in order to acquire recognition as a state:

It should have a permanent population.

A definite territory should be controlled by it.

There should be a government of that particular territory.

That entity should have the capacity to enter into relations with other states.

Legal effects:

When a state acquires recognition, it gains certain rights, obligations and immunities such as.

It acquires the capacity to enter into diplomatic relations with other states.

It acquires the capacity to enter into treaties with other states.

The state is able to enjoy the rights and privileges of international statehood.

The state can undergo state succession.

With the recognition of state comes the right to sue and to be sued.

The state can become a member of the United Nations organisation.

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SEBI [ICDR (Issue of Capital and Disclosure Requirements)] Regulations, 2018:

Repealing the SEBI regulations, 2009, Sebi has recently notified new SEBI (ICDR) regulations, 2018 on 11 September, 2018. These new regulations came into effect from the end of 60th day of the date of publication that is 11 November 2018.

There are two stages of an issue : pre-issue activities and post-issue activities.

All the activities beginning with the planning of capital issue till the opening of the subscription list are pre issue activities.

All activities after the subsequent to the opening of the subscription list may be called post-issue activities.

Redressal investor grievances:

Companies doing public issues have to give high priority towards resolving investor grievances and reducing the number of complaints.

Companies need to establish proper investor grievance monitoring and redressal systems in consultation with lead managers and RTA.

Merchant bankers and RTA need to ensure timely implementation of post-issue refund and allotment activities and regularly monitor investor grievances arising therefrom.

Offer document shall necessarily disclose the arrangement/mechanism established by the company for redressal of investor grievances.

The issuer shall also specify the time period within which the grievance is normally resolved.

If the company is doing an FPO, Then similar disclosure needs to be made for the last three years before filing a document with the registrar of companies and stock exchange.

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Tesla India updates:

10 days ago took to Twitter to appeal for reduction in the import duties for EVs into India as a reply to a tweet made by a Tesla fan seeking information from the CEO of Tesla Inc on when Tesla is planning to introduce its famed electric vehicles in India. Elon replied that if the Indian government is planning to reduce the import duties then it would be favourable for Tesla to import into India so that they would be able to analyse what the electric vehicle market is like in India and also this will help reduce the cost of the vehicle. Accordingly take the next steps and if the market is favourable towards Tesla EVs in India then there are high chances that Tesla would set up a manufacturing Plant in India probably in Bengaluru where the Automaker’s Indian subsidiary company is situated. Today after 10 days of this incident The government has said that it has no plans to cut import duties on electric vehicles. Krishan Pal Gujar, who was recently inducted in the cabinet as the MoS of Ministry of power and heavy industries said that the Centre has no proposal to ease Tesla‘s entry into India. On Monday, he said, “no such proposal is under consideration in the Ministry of heavy industries“, he added that the government is however taking steps to promote the use of electric cars by lowering domestic taxes and adding charging stations. The CEO of Tesla motors is yet to reply on the statement. However, everyone in India is waiting for Tesla EVS to roll on the road and get hands-on experience driving the car.

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Section 188 of Companies Act 2013:

Related parties transactions:

If a company enters into a transaction with a related party up to a prescribed limit then, such transaction can be done by prescribed limit, such transaction can be done by passing board resolution, however if transaction is being done beyond limit then board resolution plus ordinary resolution needs to be passed.

Office or place of profit under section 188(1)(f) means director receives any remuneration more than what he is entitled to receive as a director of company or if held by a person other than director of company in such a case, such person receiving any remuneration.

Transaction means a transaction entered between two related parties that is conducted as if they are unrelated to that and there is no conflict of interest.

If transaction being entered by the company and ordinary course of business on online basis then section 188 shall not apply

If company enters into any related party transaction without approval or board of directors of shareholders that is without passing board resolution or then:

Company needs to ratify such a transaction within three months from the date of transaction.

If such a contract has not been ratified, such contract is voidable. At the option of the company/board of directors/shareholders, as the case may be. And if such a contract is with a related party through any director, the commercial director shall be liable to indemnify to the extent of loss suffered by the company.

If companies enter into related party transactions with a person who is related party under section 2 (76) of companies act, 2013 and such person is also a member of company, such person is not entitled to vote as a member of company at a general meeting, as he is an interested person.

Above rule is not applicable to private companies.

Applicability of section 188 on government company:

If a government company gets into a contract with another government company then section 188 is not applicable.

If a government company gets into a contract with a non listed government company then section 188 shall be applicable.

If a government company gets into a contract with a non-government company unlisted then section 188 shall not be applicable but prior approval shall be obtained from the concerned state government/Ministry.

If a transaction is being entered between a holding company and a wholly-owned subsidiary company, in such case the company need not pass any resolution and resolution passed by the holding company shall be sufficient.

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Basic law:

More often than usual a basic question keeps lingering in everybody’s head. If not often at least once in your lifetime, these questions might have popped up in your head. What is law? How is it different from an act? So, I have decided to break down the difference between these two terms on today’s blog by sharing an answer I found on the net since I don’t think it can be put in simpler terms.

Difference between law and act.

Source: www.byjus.com

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What does the doctrine of lifting of the corporate veil say?

LIFTING OR PIERCING THE CORPORATE VEIL

Corporate veil: It refers to a separate legal existence enjoyed by the company which is distinct from people who own & manage it.

It is an artificial curtain created by law which separates the company from the people who own and manage it.

Effect of corporate veil: Only Company is liable for the acts/defaults done in name of company, even though directors/employees acted on behalf of company.

Lifting of corporate veil: It means looking behind the company as a legal person, i.e., disregarding the corporate entity and paying regard, instead, to the realities behind the legal facade. Where the Courts ignore the company and concern themselves directly with the members or managers, the corporate veil may be said to have been lifted. Only in appropriate circumstances, the Courts shall lift the corporate veil.

The following are the cases where company law disregards the principle of corporate personality or the principle that the company is a legal entity distinct and separate from its shareholders or members:

Case Law: Gilford Motor Co. v. Home

Case Law: Daimler Co. Ltd. vs. Continental Tyre & Rubber Co.

Case Law: Sir Dinshaw Maneckjee Petit

Case Law: Workmen employed in Associated Rubber Industries Ltd v. Associated Rubber Industries Ltd.

Case Law : Merchandise Transport Limited vs. British Transport Commission (1982)

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A brief of Special Economic Zones (SEZs) in India:

In this blog I will explain the basics of what a special economic zone is and how it functions and a few other details such as what is the work of the approval committee in the special economic zone, what are the guidelines that define the area that can be called an SEZ, etc.

What is a SEZ?

A special economic zone (SEZ) is an area in which the business and trade laws are different from the rest of the country. SEZs are located within a country's national borders.

Their aims include increased trade balance, employment, increased investment, job creation and effective administration. To encourage businesses to set up in the zone, financial policies are introduced. These policies typically encompass investing, taxation, trading, quotas, customs and labour regulations. Additionally, companies may be offered tax holidays, where upon establishing themselves in a zone, they are granted a period of lower taxation.

The benefits a company gains by being in a special economic zone may mean that it can produce and trade goods at a lower price, aimed at being globally competitive.

What are its advantages?

15 year corporate tax holiday on export profit – 100% for initial 5 years, 50% for the next 5 years and up to 50% for the balance 5 years equivalent to profits ploughed back for investment.

No license required for import made under SEZ units.

Exemption from customs duty on import of capital goods, raw materials, consumables, spares, etc.

Exemption from payment of Central Sales Tax on the sale or purchase of goods, provided that the goods are meant for undertaking authorized operations.

Since SEZ units are considered as ‘public utility services’, no strikes would be allowed in such companies without giving the employer 6 weeks prior notice in addition to the other conditions mentioned in the Industrial Disputes Act, 1947.

Has a host of Public and Private Bank chains to offer financial assistance for business houses.

In –house Customs clearance facilities.

Abundant supply of technically skilled as well as semi-skilled manpower.

Well connected with a network of public transport, local railways and cabs.

Simplification of procedures and self-certification in the labor acts.

Full authority to provide services such as water, electricity, security, restaurants, recreational facilities within the zone on purely commercial basis.

Pollution free environment with proper drainage and sewage system

Disadvantages of SEZs:

Loss of revenue to government

Land grabbing

Regional disparity

Loss of agricultural land

Compensatory problems

Deindustrialization

Role of SEZ in Indian economy:

To provide internationally competitive environment

To encourage FDI and GDP

To increase share in global export.

Generate more exports.

Increase the infrastructure development.

Approval Committee is constituted by the Central Govt to undertake the following functions in SEZ:

Approve the import or procurement of goods/services from DTA to SEZ, for carrying on the authorised operations by a Developer.

Monitor the utilisation of goods or services or warehousing or trading in SEZ.

Approve, modify or reject proposals for setting up Units for manufacturing or rendering of services or warehousing or trading in SEZ.

Allow on receipt of approval foreign collaborations and foreign direct investments, including investments by a person outside India for setting up a Unit.

Monitor and supervise compliance of conditions subject to which the letter of approval or permission is granted to the Developer or entrepreneur.

Any other functions as delegated by the Central Government / State Government.

Guidelines for notifying SEZ under SEZ Act, 2005:

Section 5 stipulates broader guidelines to be considered by the Central Government, while notifying any area as a Special Economic Zone or an area to be included in the SEZ and in discharging its functions under the Act. These include:

Generation of additional economic activity;

Promotion of exports of goods and services;

Promotion of investment from domestic and foreign sources;

Creation of employment opportunities;

Development of infrastructure facilities; and

Maintenance of sovereignty and integrity of India, the security of the State and friendly relations with foreign States

Few SEZs in India:

SEEPZ- Andheri (East), Mumbai

Khopata-Multi-product,Mumbai

NaviMumbai-Multi-product,Mumbai

Salt Lake Electronic City, West Bengal

Manikanchan- Jems and jewelery, West Bengal

M/S. Apiic Ltd., Naidupeta, Nellore.

Sricity Pvt. Ltd., Chittoor

RajivGandhiTechnologyPark,Phase-1 Chandigarh

SuratSpecialEconomicZoneSachin,Surat

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What is ”foreign contribution” under Foreign Contribution Regulation Act, 2010?

An association having a definite cultural, economic, educational, religious or social programme shall accept foreign contribution unless such person obtains a certificate of registration / prior permission from the Central Government.

“Foreign contribution” means the donation, delivery or transfer made by any foreign source,—

(i) of any article, not being an article given to a person as a gift for his personal use, if the market value, in India, of such article, on the date of such gift, is not more than such sum as may be specified from time to time, by the Central Government by the rules made by it in this behalf;

(ii) of any currency, whether Indian or foreign;

(iii) of any security as defined in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 and includes any foreign security as defined in clause (o) of section 2 of the Foreign Exchange Management Act, 1999.

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Is this the beginning of India’s crypto journey?

India has always shown it’s cold side when it comes to cryptocurrency for years for various reasons, the major one being how and who would regulate it if say it was approved by the central bank of India. Finally, after years of speculation India’s central bank is set to launch its own digital currency. On July 22nd Reserve bank of India (RBI) deputy governor T Rabi Sankar said that the central bank is considering launching its own digital currency called central bank digital currency (CBDC). It is basically the digital version of the Fiat currency (i.e) rupee. The CBDC is not the same as private virtual currencies such as bitcoin, ether or dogecoin.

“CBDCs are desirable not just for the benefits they create in payments systems, but also might be necessary to protect the general public in an environment of volatile private virtual currencies,” Sankar said in his keynote address. “Introduction of CBDC would possibly lead to a more robust, efficient, trusted, regulated and legal tender-based payments option… CBDC is likely to be in the arsenal of every central bank going forward.”

“The digital currencies issued by the central banks differ on one fundamental aspect of cryptocurrencies and that is decentralisation. That being said, digital currencies would undoubtedly create awareness among the masses,” Edul Patel, CEO and co-founder of San Francisco-headquartered crypto trading platform Mudrex said. “It would ultimately help more people to participate in the cryptocurrency markets.”

This move by the central bank does not mean it has different opinions on cryptocurrency, it might benefit the entire ecosystem though. This idea has been in the works for a while now, like from the early 2018 by a panel that was constituted by former finance minister Arun Jaitley mainly because policy makers of the country liked the concept of blockchain and who doesn’t? It makes the information much more transparent, accessible and secure (I wrote a blog on this topic as well check out my previous posts for it). In February 2020, the RBI had said institutions in India must understand the potential benefits and risks associated with distributed ledger technology to reap the benefits of digital innovation (pdf). In January this year, the RBI mentioned the need for a CBDC stating that in case the need for a digital currency came up, it will look for ways to operationalise the currency.

RBI’s decision on CBDC “clearly showcases the value of cryptocurrency or blockchain. At the end of it, the RBI is using blockchain to create a form of the currency,” Gaurav Dahake, CEO and founder of Indian cryptocurrency exchange Bitbns, said. “In effect, it validates that the use of blockchain to have governance over financial aspects of the country is valuable…The RBI would want a base layer control on cash circulation in the system.”

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What is a price target?

Analysts often assign price targets on company stocks to either buy, hold, sell recommendations. For example, a buy rating with a price target of ₹100 for a stock trading at ₹90 would represent a ₹10 upside.

Technical analysts usually set their own price targets for each trade. While this is very subjective it is usually based on a traders risk tolerance, investment horizon and personal analysis. In a Take-Profit Order -T/P, the price target is a part of the order itself. If the currency or the stock moves in a favourable direction, once it goes above the desired threshold of price level, the position will close and the trader “takes the profit”.

After the second quarter earnings call of the EV automaker Tesla trading on NASDAQ as TSLA, analysts revised their price targets, working to unravel the massive beat that the company reported. Few notable analysts were:

Cancaccord’s analyst Jed Dorsheimer, RBC Capital analyst Joseph Spak and CFRA’s analysts. The revised price targets seemed to have reflected that they are positive about the growth of the automotive company in the near future after seeing how strongly Tesla had performed in terms of quarterly earnings, year on year vehicle production as well as the number of deliveries. The prospects of tesla implementing the 4680 cells in the model Ys being built in Germany and the Texas production houses is also strong.

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Import duty for EVs in India:

In the last year’s annual budget, it was announced that the customs duty for import of electric vehicles would be increased from 25% to 40% which is currently already in effect and also causing an hindrance for foreign companies, specifically Tesla to enter into the Indian market and create a demand for their cars here in India.

The question arises, why has the Indian government taken such a decision? Well, they want the foreign EV makers to set up a factory in India and produce as well as sell the cars in India therefore, promoting the make in India campaign. On the other hand the automotive company’s CEO makes a fair argument that in order to set up a production factory in India, they’ll have to first understand the Indian market and if there is enough demand for EVs in India in order to do so. For this to happen Elon Musk asks for a temporary cut in the customs duty so that it is made affordable for the people in India and also tesla would be able to establish a testing ground here.

Below is the revised import duty rates:

In addition to this the Indian government also increased the allocation for FAME (Faster Adoption and Manufacturing of Electric Vehicle in India) by nearly 39% from 500 CR. to 693 CR. in order to promote the adoption of electric vehicles. This is the Phase 2 of the FAME initiative.This means more incentives to EV buyers in India in the form of subsidies. The government also recently approved 2636 new charging stations for electric vehicles. In the Phase 1 of FAME 2,80,000 buyers had claimed incentives on the purchase of electric vehicles and the government has almost distributed rs.360 crore till date as subsidies. I can’t see what the future holds for EVs and I mean this in a good way. Last week OLA a taxi servicing Indian app launched its new EV scooter that would be manufactured in India in its own production factory and the pre booking for the scooter has also started for just rs.499.

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When is Tesla coming to india?

This is a question that practically every Tesla fan in India, EV enthusiasts or even people who just want to know what is the big deal about Tesla cars up close is a king right now. Well, the Tesla CEO Elon Musk had said that the tesla model 3 would be available for sale by the end of this year (i.e) 2021 but to a reply to a tweet that a fan posted tagging Elon musk to that tweet has revealed the main concern for the automaker which is the main obstacle that is standing in between tesla and India. The tweet is as follows:

Even if the import duties are reduced for the automaker to import tesla cars into India and sell them here in the Indian market, the people here (in India) are not accustomed to the notion and agenda of electric vehicles. Also,the to implement FSD (full self drive) in India would require a lot of testing on Indian roads but for now as tesla is planning on establishing its market base in India with only the tesla model 3, I reckon that it would have more time to develop a more sophisticated software for the Indian roads as right now tesla is beta testing the FSD software or “Tesla vision” on a selected few Tesla model S plaids on the American roads. I am pointing this out specifically because tesla has completely abandoned the use of RADAR and LIDAR in its cars unlike its counterparts and is completely relying on cameras which the company prefers to call “Tesla vision” and it is necessary because while driving a car on Indian roads an Indian could very well expect a cow to take its afternoon nap on the middle of a national highway but a tesla FSD would not be expecting that...yet.

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What is quarterly earnings report?

A quarterly earnings report is a quarterly filing made by public companies to report their performance. Earnings reports include items such as net income, earnings per share, earnings from continuing operations, and net sales. By analyzing quarterly earnings reports, investors can begin to gauge the financial health of the company and determine whether it deserves their investment.

Fundamental analysts believe that good investments are identified identified by using ratio and performance analysis to review quarterly earnings reports. Particular attention is paid to the trend in ratios gleaned from the quarterly earnings reports over time, rather than solely the single data point from each report. One of the most anticipated numbers for analysis is earnings per share because it provides an indication of how much the company earned for its shareholders.

Recently Tesla motors had revealed the numbers in its quarterly reports and the number of deliveries had increased quarter on quarter for the Fremont branch of Tesla but the Shanghai branch had shown a slight decline in the 2nd quarter of this year (i.e) 2021.