Tag: Foreign Direct Investment

According to the Companies Act, 2013, a meeting refers to a formal gathering of members, directors, or shareholders of a company, held to discuss, deliberate, and make decisions on specific matters related to the business of the company. The meeting must follow proper procedures, including notice, quorum, agenda, and other requisites to be legally valid. Meetings can include Board meetings, General meetings, Annual General Meetings (AGM), Extraordinary General Meetings (EGM), and committee meetings, each with distinct purposes and legal requirements.

Nature of Liquidation:

• Formal Process:

Liquidation is a formal legal procedure governed by the Companies Act, 2013. It must be conducted following specific rules and regulations, ensuring that all stakeholders are treated fairly. It can be voluntary (initiated by shareholders) or compulsory (ordered by a court).

• Cessation of Business:

Once liquidation starts, the company ceases its business operations, except for those necessary to complete the liquidation process. The company no longer carries out its primary business activities but focuses on settling liabilities and distributing assets.

• Appointment of Liquidator:

Liquidator is appointed to oversee the process, manage the company’s assets, and ensure debts are paid off. The liquidator acts in the interest of creditors and shareholders, ensuring the orderly liquidation of the company.

• Sale of Assets:

The company’s assets are sold or realized to generate cash, which is used to repay creditors. The liquidator handles the sale and distribution of assets, making sure the proceeds are maximized for the benefit of creditors and other stakeholders.

• Priority of Payments:

In liquidation, creditors have priority over shareholders. Secured creditors are paid first, followed by unsecured creditors. Shareholders receive any remaining balance after all debts and liabilities have been settled, often receiving little or nothing.

• Insolvency:

Liquidation is often the result of insolvency, where the company cannot meet its financial obligations. It provides a legal remedy for creditors to recover dues from the company’s assets.

• Dissolution of Company:

The final step in liquidation is the dissolution of the company, meaning it ceases to exist as a legal entity. After the liquidation process is completed and all obligations are settled, the company is officially struck off the register of companies.

• Distribution to Shareholders:

If any surplus remains after paying creditors, it is distributed among shareholders in accordance with their shareholding rights. Typically, preference shareholders are paid before equity shareholders.

Causes of Liquidation:

• Insolvency:

One of the most common causes of liquidation is insolvency, where a company is unable to pay its debts as they fall due. When liabilities exceed assets and the company cannot meet its financial obligations, it may be forced into liquidation to repay creditors through asset sales.

• Lack of Profitability:

Company that continually operates at a loss may not be able to sustain its business operations in the long term. If the company fails to generate enough profit to cover its expenses, it may opt for voluntary liquidation to avoid further financial decline.

• Statutory Requirements:

The Companies Act, 2013, allows creditors or shareholders to petition for liquidation when specific statutory conditions are met, such as non-compliance with filing requirements, failure to hold meetings, or significant operational issues.

• Court Order:

Compulsory liquidation may be initiated by a court order due to a petition filed by creditors, shareholders, or regulatory authorities. A court may order liquidation if the company has engaged in fraudulent activities, mismanagement, or violations of the law.

• Creditors’ Pressure:

In cases where the company owes large sums of money to creditors and fails to meet repayment deadlines, creditors may push for liquidation to recover their dues. Creditors may initiate winding-up proceedings to force the company to sell off its assets and settle outstanding debts.

• Voluntary Decision by Shareholders:

In some cases, shareholders may choose to voluntarily liquidate the company even when it is solvent. This may happen due to changes in market conditions, business restructuring, or a decision to exit the market while assets still hold value.

• Mergers and Acquisitions:

If a company is acquired by another entity or merges with another firm, the original company may be liquidated to allow the new entity to take over its operations, assets, and liabilities. In such cases, the liquidation is a strategic decision rather than a financial necessity.

• Operational Mismanagement:

Poor management practices, such as inefficiencies, lack of strategic planning, or fraud, can lead to the company’s failure. Over time, these factors can erode a company’s financial health, making liquidation the only viable option to pay off debts and close the business.

Types of Liquidation:

Liquidation is the process by which a company’s assets are sold off to pay its debts, and the company is ultimately dissolved. There are different types of liquidation based on the circumstances and the parties initiating the process. The two main types of liquidation are Voluntary liquidation and Compulsory liquidation.

1. Voluntary Liquidation

Voluntary liquidation occurs when the company’s directors or shareholders decide to wind up the company. It can be initiated even when the company is solvent or insolvent. Voluntary liquidation is further divided into two types:

Members’ Voluntary Liquidation (MVL):

• This type of liquidation is initiated by the members (shareholders) when the company is solvent, meaning it can pay off its debts in full.
• The company’s directors declare a solvency statement, stating that the company will be able to pay all its debts within a specified period, usually 12 months.
• After all debts are settled, the remaining assets are distributed among the shareholders.
• MVL is typically used when the company no longer has a business purpose, the owners wish to retire, or a restructuring is planned.

Creditors’ Voluntary Liquidation (CVL):

• This type of liquidation is initiated by the company’s directors or shareholders when the company is insolvent and unable to pay its debts.
• The creditors are involved in the process as they are likely to receive payment from the proceeds of asset sales.
• A liquidator is appointed to manage the liquidation, sell the company’s assets, and distribute the proceeds to the creditors in a predetermined order of priority.

2. Compulsory Liquidation

Compulsory liquidation is ordered by a court, usually upon a petition from a creditor, the company, or certain stakeholders. This occurs when the company is unable to pay its debts or has committed serious legal violations.

Court-Ordered Liquidation:

• This type of liquidation happens when a creditor, regulatory authority, or even the company itself files a petition in the court for winding up due to insolvency or legal breaches.
• The court may issue a winding-up order if the company cannot meet its financial obligations or has violated legal norms.
• A liquidator is appointed by the court to take control of the company’s assets and distribute them according to the priority of claims, with secured creditors being paid first.

3. Voluntary Winding-Up Under Supervision

This type of liquidation occurs when a company begins a voluntary liquidation process, but the court steps in to supervise the proceedings. The court’s supervision ensures that the liquidation follows proper procedures and that creditors’ interests are protected.

4. Provisional Liquidation

In this type of liquidation, a court appoints a provisional liquidator to safeguard the company’s assets before a winding-up order is made. This may happen if there is concern that the company’s assets might be misused, removed, or wasted before the final court decision is made.

A follow-on public offering (FPO) is the issuance of shares to investors by a company listed on a stock exchange. A follow-on offering is an issuance of additional shares made by a company after an initial public offering (IPO). Follow-on offerings are also known as secondary offerings.

FPO is an abbreviation of a Follow-On Public Offer. The process of FPO starts after an IPO. FPO is a public issue of shares to investors at large by a publicly listed company. In FPO, the company goes for a further issue of shares to the general public with a view to diversifying its equity base. A prospectus is offered by the company.

There are two types of FPO:

• Dilutive offering: In dilutive FPO, the company issues an additional number of shares in the market for the public to buy however the value of the company remains the same. This reduces the price of shares and automatically reduces the earnings per share also.
• Non-Dilutive offering: Non-dilutive IPO takes place when the larger shareholders of the company like the board of directors or founders sell their privately held shares in the market. This technique does not increase the number of shares for the company, just the number of shares available for the public increases. Unlike dilutive FPO, since this method is not doing anything to the number of shares of the company, it does not do anything to the company’s EPS.

How follow-on Public offering is different from initial public offering.

• IPO is made when company seeks to raise capital via public investment while FPO is subsequent public contribution.
• First issue of shares by the company is made through IPO when company first becoming a publicly traded company on a national exchange while Follow on Public Offering is the public issue of shares for an already listed company.

IPO vs FPO

Companies raise capital by issuing shares, and the method of issuance determines how these shares are distributed among investors. The three main types of share issues are Initial Public Offering (IPO), Follow-on Public Offering (FPO), and Private Placement.

1. Initial Public Offering (IPO): An IPO is when a private company offers its shares to the public for the first time, transitioning into a publicly traded company. This method helps businesses raise funds for expansion, debt repayment, or operational growth. IPOs can be priced either through a fixed-price method, where a pre-determined price is set, or a book-building process, where investors bid for shares within a price range. Once issued, shares are listed on stock exchanges for trading. Regulatory authorities such as SEBI (in India) oversee IPOs to ensure transparency.

2. Follow-on Public Offering (FPO): After an IPO, companies may issue additional shares through an FPO to raise more capital. This can be dilutive, where new shares are created, reducing the ownership percentage of existing shareholders, or non-dilutive, where existing shareholders sell their shares to new investors. Companies use FPOs to fund expansion, acquisitions, or improve financial stability.

3. Private Placement: Instead of offering shares to the general public, companies may issue them to specific investors such as venture capitalists, institutional investors, or high-net-worth individuals. This method is quicker and avoids regulatory complexities, making it a preferred option for raising capital efficiently.

Issue of Shares at Par

When shares are issued at par, they are sold at their nominal value (also called face value). The nominal value is the price printed on the share certificate, typically set at ₹10, ₹100, or another standard amount. This means investors pay exactly the face value of the share without any additional premium or discount.

For example, if a company issues 1,000 shares with a face value of ₹10 each, the total capital raised will be ₹10,000.

Features of Shares Issued at Par:

1. Fair Valuation: The share price is neither inflated nor reduced, reflecting its actual worth as per the company’s books.

2. Common for New Companies: Startups and newly established firms often issue shares at par because they do not have a market reputation to justify a premium.

3. No Capital Gains for the Company: Since shares are issued at their face value, the company does not earn any extra capital beyond the nominal value.

4. Lower Investor Risk: Investors do not overpay, reducing risks associated with stock market volatility.

5. Transparency in Pricing: The fixed price prevents speculation and manipulation.

Shares issued at par are considered a straightforward and risk-free way to raise capital, especially for companies that are just entering the market.

Issue of Shares at Premium

When shares are issued at a premium, they are sold at a price higher than their nominal value. This happens when a company has strong financial performance, a good reputation, or high demand for its shares. The extra amount over the face value is called the securities premium and is credited to the company’s Securities Premium Account.

For example, if a company issues shares with a face value of ₹10 at ₹50 per share, the ₹40 excess is the premium.

Reasons for Issuing Shares at a Premium:

1. Strong Market Reputation: Companies with good earnings history can charge a premium due to high investor confidence.

2. Demand Exceeds Supply: If many investors want the shares, companies set higher prices.

3. Profitability and Growth Prospects: Companies with consistent profits and expansion plans attract investors willing to pay a premium.

4. Reserves for Future Needs: The premium amount can be used for writing off expenses, issuing bonus shares, or funding business expansion.

5. Enhances Market Perception: A higher issue price reflects strong company fundamentals, boosting investor trust.

Issuing shares at a premium benefits both the company (by raising more capital) and investors (who gain ownership in a promising business). However, it also carries risks, as the stock price may fluctuate post-issue, affecting investor returns.

Issue of Shares at Discount

When shares are issued at a discount, they are sold at a price lower than their nominal value. Companies generally avoid this method, as issuing shares below face value indicates financial instability. However, in special cases, businesses may offer discounted shares to attract investors.

For example, if a company issues shares with a face value of ₹10 at ₹8 per share, the ₹2 difference is the discount.

Reasons for Issuing Shares at a Discount:

1. Financial Difficulties: Companies struggling to raise funds may offer discounts to attract investors.

2. Encouraging Subscription: If there is low demand, a discount helps ensure the shares are fully subscribed.

3. Compensating Initial Investors: Sometimes, early investors or employees are given discounted shares as incentives.

4. Clearing Unsold Shares: Companies that fail to sell shares in an IPO or FPO may offer discounts to encourage purchases.

5. Special Approvals Required: In many countries, issuing shares at a discount requires regulatory approval to prevent misuse.

Pro-rata Allotment of Shares refers to the proportional distribution of shares among applicants when the number of shares applied for exceeds the shares available for issuance, typically in cases of oversubscription. Under this system, each applicant receives shares in proportion to the amount they applied for. For example, if an investor applies for 1,000 shares in an issue that is oversubscribed by 200%, they may receive only 500 shares (i.e., half of their application). Pro-rata allotment ensures a fair and equitable distribution of shares to all applicants.

Reasons of Pro-rata basis Allotment of Shares:

1. Fair Distribution:

Pro-rata allotment ensures a fair and equitable distribution of shares among applicants. When demand exceeds supply, this method allows each applicant to receive shares in proportion to their applications, minimizing feelings of unfairness among investors.

2. Equity Among Investors:

By allotting shares on a pro-rata basis, companies uphold the principle of equity. Each applicant receives an opportunity to invest in proportion to their interest, regardless of the size of their application, thus maintaining investor confidence in the fairness of the process.

3. Mitigation of Oversubscription issues:

In cases where a public offering is oversubscribed, pro-rata allotment provides a structured way to address the excess demand. This method simplifies the allocation process and helps manage investor expectations, as they know they will receive a portion of their requested shares.

4. Transparency:

Pro-rata allotment promotes transparency in the share allocation process. The method is straightforward, and investors can easily understand how many shares they will receive based on their application size, enhancing trust in the company’s operations.

5. Encourages Participation:

Knowing that shares will be allotted fairly encourages more investors to participate in future offerings. This can lead to a more extensive shareholder base, which can be beneficial for companies in terms of stability and market presence.

6. Simplified Accounting:

From an accounting perspective, pro-rata allotment simplifies the share issuance process. Companies can easily calculate the number of shares to be allotted to each applicant based on the total number of shares applied for, streamlining record-keeping and reporting.

7. Reduced Administrative Burden:

By adopting a pro-rata approach, companies can reduce the administrative burden associated with managing oversubscriptions. Instead of handling individual requests and conducting lotteries or other complex allocation methods, a pro-rata system simplifies the process.

8. Legal Compliance:

Pro-rata allotment can help companies comply with regulatory requirements. Many jurisdictions have guidelines regarding fair allotment processes, and adhering to a pro-rata system can help ensure compliance with these rules, minimizing legal risks.

Accounting of Pro-rata basis Allotment of Shares:

Accounting for pro-rata allotment of shares involves recording the applications, allotment, and any refund due to oversubscription.

Example Scenario:

• A company issued 10,000 shares at ₹10 each.
• Applications were received for 15,000 shares, resulting in oversubscription.
• The company refunds 5,000 shares and allots the remaining 10,000 shares on a pro-rata basis.

Accounting Entries for Pro-rata Allotment:

Requirements of Companies Act

The following are the requirements of the Companies Act regarding the reissue of forfeited shares:

1. The forfeited shares are generally issued at a price lesser than their face value. But the discount so allowed to the new buyers should not exceed the amount already paid by the defaulting member.
2. A resolution sanctioning the reissue must be passed in the Board Meeting.
3. The forfeited shares are to be transferred in the name of the buyer and his name should be entered in the Register of Members.
4. A public notice in newspapers should be given stating that such and such shares have been forfeited due to the non-payment of calls.

Re-issue of Forfeited Shares

Forfeited shares are available with the company for sale. After the forfeiture of shares, the company is under an obligation to dispose off the forfeited shares.

The company requires to pass a resolution in its Board Meeting for the re-issue of forfeited shares. Re-issue of forfeited shares is a mere sale of shares for the company. A company does not make allotment of these shares.

The company auctions the forfeited shares and disposes them off. A company can re-issue these shares at any price but the total amount received on these shares should not be less than the amount in arrears on these shares. Here, total amount refers to the amount received from the original allottee and the second purchaser.

Notes:

• We show the Forfeited shares A/c under the heading ‘Share Capital’.
• When a company re-issues only a part of the forfeited shares, then it will transfer only the profit relating to this part to the capital reserve.
• When a company re-issues shares at a price more than their face value, it needs to transfer the excess amount to the Securities Premium A/c.

(a) Reissue of forfeited Share Originally Issued at Par:

When the forfeited shares are reissued at a discount, the amount of discount should not exceed the amount credited to Share Forfeited Account. If the discount allowed on reissue of shares is less than the forfeited amount, there will be some balance left in the Forfeited Account, which should be transferred to capital reserve, because it is a profit of capital nature.

Accounting entries:

On reissue of shares at discount:

Bank A/c … Dr. (With reissue price)

Share Forfeited A/c …Dr. (With the discount allowed on reissue)

To Share Capital A/c (With the amount called up)

Transfer to Capital Reserve:

The balance remaining in share forfeited account is in the nature of capital gain and would be closed by transfer to the capital reserve account.

The necessary journal entry will be:

Share forfeited a/c Dr. (with credit balance left in share forfeited account after reissue)

To Capital reserve a/c

(Being share forfeited account transferred)

(b) Reissue of forfeited shares originally issued at discount:

If the shares which were originally issued at a discount are forfeited and reissued, then on reissue the new allottee would get the advantage of discount, besides getting some additional discount from share forfeited account.

The requisite entry in this case will be:

Bank a/c Dr. (with amount received on reissue)

Discount on issue of shares a/c Dr. (with normal discount)

Share forfeited a/c Dr. (with extra discount on reissue)

To Share capital a/c Dr. (with total amount)

(Being forfeited shares reissued, originally issued at discount)

Journal Entries for Re-issue of Forfeited Shares:

Auditor’s Duty regarding reissue of forfeited shares

1. The auditor should ascertain whether the Articles authorize the Board of Directors to reissue the forfeited shares.
2. He should examine the resolution passed by the Board of Directors at their meeting under which the forfeited shares have been re-allotted.
3. He should vouch the entries made for re-allotment in the Cash Book.
4. He should see that the balance remaining in the forfeited shares account has been transferred to the Capital Reserve Account.
5. In case the shares were reissued at a price above par value, he should see that the excess has been transferred to the Share Premium Account.
6. He should vouch the copy of the return of allotment filed with the Registrar of Joint Stock Companies.

Section 81 of the Companies Act requires that a public limited company, whenever it proposes to increase its subscribed capital after the expiry of two years from the date of its incorporation or after the expiry of one year from the date of allotment of shares in that company, made for the first time after its formation, whichever is earlier, shall be required to offer those shares to the existing equity shareholders in the proportion of paid-up capital as nearly as possible. Such shares are known as rights shares.

From an accounting perspective, a bonus issue is a simple reclassification of reserves which causes an increase in the share capital of the company on the one hand and an equal decrease in other reserves. The total equity of the company therefore remains the same although its composition is changed.

The price at which these shares are offered to the existing shareholders is normally below the market price of the shares. The existing shareholders thus have a specific advantage in the sense that market price of the shares offered is more than its issue price. This specific advantage has a money value called as value of the right.

The value of the right can be calculated as follows:

1. Ascertain the total market value of the shares which a shareholder is required to possess in order to get additional shares from of the fresh issue.
2. Add to the above market price, the amount to be paid to the company for additional shares of the fresh issue.
3. Find average price. This can be calculated by dividing the total prices calculated under step 2 by the total number of shares.
4. Deduct average price from market price. This difference is called value of the right.

The accounting entries in each of these cases would be as follows:

(A) For converting partly paid shares into fully paid shares

(i) Equity share final call a/c Dr.

  To equity capital a/c

(Being call money due on … shares)

(ii) P&L a/c Dr.

Securities Premium a/c

Reserve a/c Dr.

  To bonus to shareholders a/c

(Being bonus declared)

(iii) Bonus to shareholders a/c Dr.

  To equity share final call a/c

(Conversion of partly paid equity shares into fully paid equity shares)

(B) For fully paid bonus shares

(i) P&L a/c

Securities Premium a/c

Reserve a/c Dr.

  To bonus to shareholders a/c

(ii) Bonus to shareholders a/c Dr.

  To equity share capital a/c

(Being bonus utilised to issue fully paid up bonus shares)

Following journal entries are required to account for a bonus issue:

Advantages

• Cash-starved companies can issue bonus shares instead of cash dividends to provide temporary relief to shareholders.
• Issuing bonus shares improves the perception of company’s size by increasing the issued share capital of the company.
• When distributable reserves (e.g. un-appropriated profits) are used to account for a bonus issue, it decreases the risk to creditors as it reduces the amount of reserves available for distribution to the shareholders of the company.

Disadvantages

• It is not a meaningful alternative to cash dividends for shareholders as selling the bonus shares to meet liquidity requirements would lower their percentage stake in the company.
• Bonus issue does not generate cash for the company.
• As bonus shares increase the issued share capital of the company without any cash consideration to the company, it could cause a decline in the dividends per share in the future which may not be interpreted rationally by all market participants.

Case 1

When new fully paid up bonus shares are issued

a) for providing amount of bonus

Capital reserve account debit xxxx

share premium account debit xxxx

Capital redemption reserve account debit xxxx

Other general reserve account debit xxxx

Profit and loss account debit xxxx

Bonus to shareholder account credit xxxx

b) for issue of bonus

Bonus to equity shareholder account debit

Equity share capital account credit

Director Loans

Section 185 of the Companies Act, 2013 lays down certain restrictions with regard to the granting of loans to Directors in order to monitor their working.

When the Companies Act, 1956 was in force, public companies were permitted to grant loans, guarantees, and securities as long as they obtained prior permission from the Central Government to do so. The companies used to exercise a practice of borrowing funds and passing them to subsidiaries and other associate companies through inter-corporate loans.

However, when it came to compliance with the terms of the loan agreement, the holding companies used to take a step back, leaving the subsidiaries in the lurch. In order to put a stop to the exploitation of the subsidiaries, Section 185 of the Companies Act, 2013 came into force.

Section 185 (as amended by the Companies (Amendment) Act, 2017):

• Limits the prohibition on loans, advances, etc. to Directors of the company or its holding company or any partner of such Director or any partner of such Director or any firm in which such Director or relative is a partner.
• Allows the company to give a loan or guarantee or provide security in connection with any loan to any person/ entity in whom any of the Directors are interested, subject to:-
  • Passing of Special Resolution by the company in a General Meeting (Approval of at least 75% of the members is required).
  • Utilization of loans by the borrowing company shall be solely for its principal business activities.
• The penalty provisions as set out under Section 185 (4) of the Act, in addition to the Company, now extends to an officer in default of the company (which includes any Director, Manager or KMP or any person in accordance with whose directions BODs are accustomed to act).

Exemptions with Regard to Loans Given to Directors

• Loans to the Managing Director or Whole Time Director:
• The loans to MD or WTD may be given only if the following conditions are met with:
  • Where it is part of the Policy of Service of the company to grant loans to all employees.
  • Pursuant to any scheme which is duly approved by the members by way of a Special Resolution
• Loans to Subsidiary Company:

Where the holding company grants the loan, guarantee or security to its wholly-owned subsidiary company, which uses the same for its principal activity of business only.

• Loans to Companies as part of Ordinary Business:

If the rate of interest charged on such loans is not lesser than the rate prescribed by RBI at the time, loans may be given to companies in the ordinary course of business.

• Loans given by Banks and Financial Institutions to Subsidiaries:

Grant of loan is permitted based on:

• Where the holding company provides the security or guarantee with respect to the loan made by the bank or any financial institution to the subsidiary company.
• The loan must be utilised for the subsidiary’s principal activity of the business.

Director Remuneration

‘Remuneration’ means any money or its equivalent given to any person for services rendered by him and includes the perquisites mentioned in the Income-tax Act, 1961.

Managerial remuneration in simple words is the remuneration paid to managerial personals. Here, managerial personals mean directors including managing director and whole-time director, and manager.

Directors’ remuneration is the process by which directors of a company are compensated, either through fees, salary, or the use of the company’s property, with approval from the shareholders and board of directors.

The process of directors’ remuneration came about because of shareholder concerns that directors were rewarding themselves large salaries despite showing poor profits or revenue.

Therefore, the process was initiated by which shareholders were able to agree to or reject fees paid to directors in general. This amount is the upper limit that can be paid to the board of directors.

The board of directors, in turn, will determine how those fee payments are split up among the directors, including the general director of the company.

On the other hand, director’s remuneration, meaning the salaries and bonuses paid out to directors, is part of the directors’ employment contract signed with the company. The board of directors then has direct control over that remuneration agreement.

Shareholders may sue the directors if they pay excessive amounts that exceed the agreed payment or if they pay themselves a disproportionately large number of profits instead of distributing it to the stockholders as dividends.

Permissible managerial remuneration

• Total managerial remuneration payable by a public company, to its directors, managing director and whole-time director and its manager in respect of any financial year:

The percentages displayed above shall be exclusive of any fees payable under section 197(5).

Until now, any managerial remuneration in excess of 11% required government approval. However, now a public company can pay its managerial personnel remuneration in excess of 11% without prior approval of the Central Government. A special resolution approved by the shareholders will be sufficient.

In case a company has defaulted in paying its dues or failed to pay its dues, permission from the lenders will be necessary.

• When the company has inadequate profits/no profits:In case a company has inadequate profits/no profits in any financial year, no amount shall be payable by way of remuneration except if these provisions are followed.