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TMI Blog2020 (1) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities and identify the natural persons controlling a corporate entity. Section 90 of the Companies Act, 2013 (hereinafter referred to as "Act) and the Companies (Significant Beneficial Owners) Rules, 2018 (hereinafter referred to as the "Rules") were notified in June, 2018. 4. It is stated that Ministry of Corporate Affairs issued notification in respect of the Companies (Significant Beneficial Owners) Amendment Rules 2019 to amend the Companies (Significant Beneficial Owners) Rules 2018 (hereinafter referred to as the "Rules"). The said Rules have been formulated under Section 90 of the Companies Act, 2013 (hereinafter referred to as the "Act") which provide disclosure requirements for Significant Beneficial Owners (hereinafter referred to as "SBO") in a Company. The amendment rules make it clear that, in order to be a Significant Beneficial Owner (SBO), a person must have an indirect right/entitlement. Therefore, if an individual exercise direct holding in the Reporting Company, he/she shall not be termed as Significant Beneficial Owner (SBO). Accordingly, the deciding factor - comes out to be exercising indirect right or entitlement. Therefore, if an individual exercise dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a SBO and cause such SBO to make a declaration in the prescribed form. 9. It is further provided that in the case of failure of a person to reply to the notice by the Company in Form No. Ben-4, as per sub-Section (7) of Section 90, within the specified time or where the information given by that person is not satisfactory shall apply to Tribunal within 15 days from the date of expiry of period as specified in the notice for an order of: (i) Restrictions with regard to Transfer of interest. (ii) Suspension of the right to receive dividend or any other distribution in relation to the shares in question. (iii) Suspension of voting rights in relation to the shares in question. (iv) Any other restriction on all or any of the rights attached with the shares in question. 10. As per sub-Section (8) of Section 90, on any application made under sub-Section 7, the Tribunal may after giving an opportunity of being heard to the parties concerned, make such order restricting their rights attached with the shares within a period of 60 days of receipt of application or such other period as may be prescribed. 11. The amended rules mandate companies such as the Applicant to take necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Section 90 read with Rule 2(h) of the Companies (Significant Beneficial Owners) Rules 2018 as reflected Page No. 93 of the Petition. 16. The Respondent stated in his submissions that amendment to Section 90 is not applicable to the Respondent. 17. The Respondent has stated that Respondent Company acquired 44,02,201 shares of the Applicant Company. The said acquisition was made in compliance with the order of the Hon'ble Supreme Court. Since, the Respondent Company is not covered under Section 90 of the Companies Act, 2013, no declaration was required to be made. The Respondent Company further submitted that Applicant Company has to demonstrate reasonable cause to believe for issuing the notice and filing the petition. Until and unless the said burden is not discharged, the burden on the instant applicant does not shift. The Respondent Company acquired 44,02,201 shares in the open offer announcement after complying with SEBI (Substantial Acquisition of Shares and Take Offer) Regulations, in the year 2018. The prime objective of the open offer was to acquire substantial acquisition of shares/voting rights accompanied with the change in control and management of the Targe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such Significant Beneficial Ownership or any change therein. On receipt of the said declaration of beneficial interest by the Company (herein applicant) is required to file in Form No. BEN-2 with the Registrar of Companies within the period of 30 days from the date of receipt of declaration. 22. MCA vide its circular dated 06.09.2018 had clarified that the time limit for filing Form No. BEN-2 would be 30 days from the date of its deployment on the MCA portal which was notified on 01.07.2019. Thus by the end of July, the applicant/reporting company has to file Form No. BEN-2. 23. In view of such amendment, duty cast upon the Reporting Company to take necessary steps to find out whether any individual is significant owner as defined in Clause (h) of rule 2 of the Rules in relation to Company. To ascertain the existence of such an individual and cause member to make a declaration in Form No. BEN-1 a notice is issued in Form No. BEN-4 to a member (other than an individual) who holds not less than 10 per cent of its shares seeking information in accordance with sub section (5) of Section 90 to save from penal action by the Competent Authority upon the applicant. 24. Since the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Mahavidya Consultants Pvt. Ltd. 29,000 4.37 Manoj Chandak 20,000 3.01 S.K. Roy 5,000 0.75 Others 4,800 0.72 Total: 6,64,250 100 27. 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. 28. Further affirm that, there is no ultimate holding company of the answering respondent and as such there is no individual who holds majority stake in such ultimate holding company. 29. In view of such disclosure by the Respondent/J.P. Financial Services Pvt. Ltd., on oath, 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., in his reply whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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