9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 1267 - Tri - Companies LawNon-filing/furnishing of information in Form BEN-1 i.e. the declaration by the beneficial owner, who holds or acquires Significant Beneficial Ownership in share - HELD THAT - Since the Respondent Company i.e. J.P. Financial Services Pvt. Ltd., is a body corporate member of the applicant, as such it is mandated to provide details of Significant Beneficial Owner as per Rules i.e. in terms of Explanation III of clause (h) of sub Rule 1 of Rule of SBO Rules, an individual shall be considered to hold a right or entitlement indirectly in the Reporting Company, if he satisfies the criteria in respect of a member of the Reporting Company - Thus, the Respondent being Corporate member of the applicant company holding 25 per cent plus share of applicant company, as such applicant issued notice in Form No. BEN-4 on 19.07.2019 under Rule 2A(2) of the Rules to Respondent/J.P. Financial Services Pvt. Ltd., (Respondent of CP No. 82 of 2019). The said notice in Form No. BEN-4 attaching Form No. BEN-1 is enclosed with application at Page No. 13-14 as Annexure 1 (Colly). The said notice was received by the Respondent on 20.07.2019 as per track report annexed at Page 18 of the application. But the Respondent/J.P. Financial Services Pvt. Ltd., failed to give reply by furnishing information in Form No. BEN-1 to applicant within a period of 30 days. Hence the applicant compelled to file the instant application within a statutory period as provided in the Act under section 90(7). It is also a matter of record that during the course of arguments, the Respondent/J.P. Financial Services Pvt. Ltd., also filed an affidavit dated 24th October, 2019, through its authorized signatory Mr. Majoj Chandok, whereby the Respondent/J.P. Financial Services Pvt. Ltd., affirmed and assert on oath relying on the shareholding pattern of the Company as reflected at Page 93 of the Reply, and further affirmed that there is no individual having more than 10 per cent of the answering respondent. The applicant may take appropriate/necessary steps to file Form No. BEN-1, based on the disclosure made by Respondent/J.P. Financial Services Pvt. Ltd. - However, the Respondent Company is directed to take sufficient care regarding the recognition of the individual(s) being the Significant Beneficial Owner(s) of the Respondent Company or its member and cause them to make the necessary disclosure, within stipulated period. Further, every individual who subsequently becomes a significant beneficial owner/or where his significant beneficial ownership undergoes any change(s) shall file a declaration in Form No. BEN-1 to the Reporting Company in stipulated time as provided in the rules and/or as per MCA circular, if any, to avoid attraction of penal action. Petition dismissed.
Issues Involved:
1. Applicability of Section 90 of the Companies Act, 2013, and the Companies (Significant Beneficial Owners) Rules, 2018. 2. Compliance with the disclosure requirements for Significant Beneficial Owners (SBO). 3. Petition for placing restrictions on shares due to non-compliance. 4. Respondent's defense regarding the applicability of Section 90. 5. Interim relief and rejection of the petition. Detailed Analysis: 1. Applicability of Section 90 of the Companies Act, 2013, and the Companies (Significant Beneficial Owners) Rules, 2018: The judgment begins by establishing the context of the case, where M/s. Golden Tobacco Ltd. filed a petition under Section 90 of the Companies Act, 2013, and the Companies (Significant Beneficial Owners) Rules, 2018, against M/s. J.P. Financial Services Pvt. Ltd. The concept of Significant Beneficial Owners (SBO) was introduced to curb illegitimate activities and identify natural persons controlling a corporate entity. The amended rules require individuals with indirect rights or entitlements in a company to disclose their significant beneficial ownership. 2. Compliance with the Disclosure Requirements for Significant Beneficial Owners (SBO): The judgment details the disclosure requirements under the Rules, such as filing a declaration in Form No. BEN-1 by individuals who are SBOs within 90 days from the commencement of the rules. Companies must file Form No. BEN-2 with the Registrar within 30 days of receiving such declarations. The onus is on the Reporting Company to identify SBOs and ensure compliance by issuing notices in Form No. BEN-4 to members holding at least 10% of shares or voting rights. 3. Petition for Placing Restrictions on Shares Due to Non-Compliance: M/s. Golden Tobacco Ltd. issued a notice in Form No. BEN-4 to M/s. J.P. Financial Services Pvt. Ltd., which holds 25% shares of the Applicant Company, seeking information on SBOs. Upon receiving no response, the Applicant approached the Tribunal under Section 90(7) for directions to place restrictions on the shares of M/s. J.P. Financial Services Pvt. Ltd. due to non-compliance with the disclosure requirements. 4. Respondent's Defense Regarding the Applicability of Section 90: The Respondent argued that the amendment to Section 90 was not applicable to them and that they had acquired the shares in compliance with an order from the Hon'ble Supreme Court. They contended that no declaration was required under Section 90 and that the Applicant must demonstrate reasonable cause for issuing the notice and filing the petition. The Respondent also suggested that the Applicant was attempting to block their voting rights due to a perceived threat from the Respondent Company. 5. Interim Relief and Rejection of the Petition: During the pendency of the petition, the Respondent filed an application (IA 616 of 2019) seeking vacation of interim relief and/or rejection of the petition. The Tribunal found that the grounds in the IA were identical to those in the reply to the petition and dismissed the IA for lack of merit. Findings: The Tribunal noted that the application was due to the Respondent's failure to furnish information in Form BEN-1. The Tribunal reiterated the amended rules requiring SBOs to file declarations and the Reporting Company to file Form No. BEN-2. The Tribunal found that the Respondent, being a corporate member holding 25% shares, was mandated to provide details of SBOs. The Respondent disclosed its shareholding pattern, indicating no individual held more than 10% of the shares, and affirmed no ultimate holding company existed. The Tribunal directed the Respondent to ensure recognition of SBOs and cause them to make necessary disclosures to avoid penal action. Conclusion: The Tribunal disposed of CP 82 of 2019 with observations and dismissed IA 616 of 2019. The interim order would be vacated upon compliance by the Respondent in filing Form No. BEN-1. The time consumed in the matter was exempted for statutory compliance purposes, and no costs were awarded.
|
