[The following
guest post is contributed by Siddharth
Raja, Founding Partner of Samvad Partners. Views are personal, and comments
are welcome]
guest post is contributed by Siddharth
Raja, Founding Partner of Samvad Partners. Views are personal, and comments
are welcome]
The Ministry of
Corporate Affairs’ (“MCA”) recent
issuance of a notification
providing for exceptions, modifications and adaptations in the application of
the Companies Act, 2013 (the “2013
Companies Act”) to “private companies” has once again revived the debate in
India (here,
here
and here)
on the status of Indian incorporated private companies, especially those that
are subsidiaries of foreign bodies corporate. The key issue is this: do such
“private companies” retain their incorporation status for all purposes of the
2013 Companies Act; or do they become “public companies” under the 2013
Companies Act?
Corporate Affairs’ (“MCA”) recent
issuance of a notification
providing for exceptions, modifications and adaptations in the application of
the Companies Act, 2013 (the “2013
Companies Act”) to “private companies” has once again revived the debate in
India (here,
here
and here)
on the status of Indian incorporated private companies, especially those that
are subsidiaries of foreign bodies corporate. The key issue is this: do such
“private companies” retain their incorporation status for all purposes of the
2013 Companies Act; or do they become “public companies” under the 2013
Companies Act?
The issue, thus
framed, might appear to present a purely legal debate, or one of
semantics. The need for clarity on which
companies fall into the bucket of “private companies” (and, conversely, which
don’t and are to be treated as “public companies”) has now come to acquire
great significance given the exceptions or exemptions provided to those
companies regarded as “private companies”.
For instance, “private companies” do not now need to follow the strict
differentiations between equity and preference share capital (and their
respective segregated economic and, in particular, voting rights), which has a
direct impact on the range, scope, efficacy and enforceability of a wide range
of such economic and other rights attaching to investors’ share capital.
framed, might appear to present a purely legal debate, or one of
semantics. The need for clarity on which
companies fall into the bucket of “private companies” (and, conversely, which
don’t and are to be treated as “public companies”) has now come to acquire
great significance given the exceptions or exemptions provided to those
companies regarded as “private companies”.
For instance, “private companies” do not now need to follow the strict
differentiations between equity and preference share capital (and their
respective segregated economic and, in particular, voting rights), which has a
direct impact on the range, scope, efficacy and enforceability of a wide range
of such economic and other rights attaching to investors’ share capital.
Upon a review of
the applicable legal provisions and the current state of the law, it would be fair
to conclusively conclude – it is argued in this post – that a private company subsidiary in India of an overseas body
corporate holding company will continue to be a “private company” for purposes
of the 2013 Companies Act, and such a private company is not caught-up in those
provisions of the 2013 Companies Act deeming it to be a “public company”.
the applicable legal provisions and the current state of the law, it would be fair
to conclusively conclude – it is argued in this post – that a private company subsidiary in India of an overseas body
corporate holding company will continue to be a “private company” for purposes
of the 2013 Companies Act, and such a private company is not caught-up in those
provisions of the 2013 Companies Act deeming it to be a “public company”.
The reasoning is as follows:
A) Under the 2013 Companies Act [proviso to Sec. 2(71))], a “company” which is a subsidiary
of a company, not being a private company (emphasis added), is
deemed to be a public company for the purposes of that Act, even where such
subsidiary company continues to be a private company by its articles. In this post,
for ease of reference, this provision is called as the “deeming provision”.
of a company, not being a private company (emphasis added), is
deemed to be a public company for the purposes of that Act, even where such
subsidiary company continues to be a private company by its articles. In this post,
for ease of reference, this provision is called as the “deeming provision”.
In other words, the incorporation
status in India of a “company” (which term refers only to those companies
incorporated in India under applicable Indian law at the relevant time [Sec. 2(20)]), is irrelevant when it comes to
deeming any such Indian private company as an Indian public company on the basis
of it being a “subsidiary” of a “company, not being a private company”.
status in India of a “company” (which term refers only to those companies
incorporated in India under applicable Indian law at the relevant time [Sec. 2(20)]), is irrelevant when it comes to
deeming any such Indian private company as an Indian public company on the basis
of it being a “subsidiary” of a “company, not being a private company”.
This word (“subsidiary”) and this
phrase (“company, not being a private company”), as used in this context, are
important to analyze, as follows:
phrase (“company, not being a private company”), as used in this context, are
important to analyze, as follows:
B) A “company, not being a private company” must be taken to be
a reference only to an Indian company – as the definition of “company” [Sec. 2(20)] and “private company” [Sec. 2(68)] make expressly clear, these
provisions and this phrase are restricted in operation under Indian law only to
those entities, thus described, as incorporated in India and having the
necessary features under Indian law.
a reference only to an Indian company – as the definition of “company” [Sec. 2(20)] and “private company” [Sec. 2(68)] make expressly clear, these
provisions and this phrase are restricted in operation under Indian law only to
those entities, thus described, as incorporated in India and having the
necessary features under Indian law.
The Companies Act, 1956 (the “1956 Companies Act”) [Sec. 3(1)(iv)(c)] had the same provision – a
“public company” covers even a private company which is a subsidiary of a
company which is not a private company – where the coverage of the term “public
company” in the holding – subsidiary matrix did not extend to overseas holding
companies. A fine counter argument in this
behalf as to inclusion of “bodies corporate” (i.e., entities incorporated
overseas) within the ambit of the holding -subsidiary relationship is dealt
with in point # (D) below.
“public company” covers even a private company which is a subsidiary of a
company which is not a private company – where the coverage of the term “public
company” in the holding – subsidiary matrix did not extend to overseas holding
companies. A fine counter argument in this
behalf as to inclusion of “bodies corporate” (i.e., entities incorporated
overseas) within the ambit of the holding -subsidiary relationship is dealt
with in point # (D) below.
C) The interpretation of the term “subsidiary” used in the above
deeming provision, can, therefore, only mean be in reference to an Indian holding
company, as the phrase “company, not being a private company” clearly
demonstrates.
deeming provision, can, therefore, only mean be in reference to an Indian holding
company, as the phrase “company, not being a private company” clearly
demonstrates.
In other words, the focus shifts
from purely an interpretation of just the term “subsidiary”, to an appreciation
that the deeming provision only kicks in when the nature or type of the holding
company is clear – that holding company must be one which is a “company, not
being a private company”.
from purely an interpretation of just the term “subsidiary”, to an appreciation
that the deeming provision only kicks in when the nature or type of the holding
company is clear – that holding company must be one which is a “company, not
being a private company”.
And, it is manifest that that
phrase and the reference to “company” and “private company” therein, covers
only Indian incorporated holding companies; thereby, meaning that the deeming
provision is only triggered in the Indian subsidiary – holding context, and not
in the overseas holding context.
phrase and the reference to “company” and “private company” therein, covers
only Indian incorporated holding companies; thereby, meaning that the deeming
provision is only triggered in the Indian subsidiary – holding context, and not
in the overseas holding context.
This conclusion of mine is
further corroborated if one were to examine the legislative background leading
up to the 2013 Companies Act. The deeming provision language in the concept
paper in 2004 on the draft Companies Bill issued by the MCA stipulated that an
Indian company subsidiary of an overseas body corporate incorporated outside
India (which would be a public company within the meaning of Indian law, if
incorporated in India), shall be a public company.
further corroborated if one were to examine the legislative background leading
up to the 2013 Companies Act. The deeming provision language in the concept
paper in 2004 on the draft Companies Bill issued by the MCA stipulated that an
Indian company subsidiary of an overseas body corporate incorporated outside
India (which would be a public company within the meaning of Indian law, if
incorporated in India), shall be a public company.
In other words, the proposal as
contained in the concept paper was to do away entirely with the benefit of Sec.
4(7) of the 1956 Companies Act, and include ALL overseas body
corporate-held subsidiaries (including wholly owned ones) within the rubric of
“public company” in India on such deemed basis.
It may be mentioned in passing that there are striking similarities in this
position with that of a discussion recorded by the Companies Act Amendment
Committee of 1957 that preceded the insertion of Sec. 4(7) into the 1956
Companies Act, which stated (all emphasis
added):
contained in the concept paper was to do away entirely with the benefit of Sec.
4(7) of the 1956 Companies Act, and include ALL overseas body
corporate-held subsidiaries (including wholly owned ones) within the rubric of
“public company” in India on such deemed basis.
It may be mentioned in passing that there are striking similarities in this
position with that of a discussion recorded by the Companies Act Amendment
Committee of 1957 that preceded the insertion of Sec. 4(7) into the 1956
Companies Act, which stated (all emphasis
added):
“As regards the treatment of
private companies, the entire share capital of which is owned by one or more
foreign bodies corporate, it is a matter of economic and financial policy
for Government to decide, having regard to the position of foreign investments
in this country generally, whether or not such private companies should
continue, as at present, to remain outside the restrictions imposed on private
companies which are subsidiaries of Indian public companies or whether they
should henceforth be made subject to these restrictions. If an alteration of law in this respect is
considered desirable, a provision should be inserted in section 4 to the
effect that “a private company, which is registered in India and which is a subsidiary
of a foreign public company, shall be deemed to be a subsidiary of a public
company for all purposes of this Act”
private companies, the entire share capital of which is owned by one or more
foreign bodies corporate, it is a matter of economic and financial policy
for Government to decide, having regard to the position of foreign investments
in this country generally, whether or not such private companies should
continue, as at present, to remain outside the restrictions imposed on private
companies which are subsidiaries of Indian public companies or whether they
should henceforth be made subject to these restrictions. If an alteration of law in this respect is
considered desirable, a provision should be inserted in section 4 to the
effect that “a private company, which is registered in India and which is a subsidiary
of a foreign public company, shall be deemed to be a subsidiary of a public
company for all purposes of this Act”
So it seems that, despite the
passage of almost fifty years (as in 2000), the Government of India (or, at
least, some parts of the Government) was still willing to go by the economic
logic of a vastly different, much earlier era, in our nation’s development; and
that too a view which, ultimately, came to be rejected by the Government of the
day, as evident in Sec. 4(7) of the 1956 Companies Act!
passage of almost fifty years (as in 2000), the Government of India (or, at
least, some parts of the Government) was still willing to go by the economic
logic of a vastly different, much earlier era, in our nation’s development; and
that too a view which, ultimately, came to be rejected by the Government of the
day, as evident in Sec. 4(7) of the 1956 Companies Act!
However, this proposal as in the
concept paper was dropped (and no further discussions on this topic were
elicited in the various subsequent committee reports that redrafted the law) and
instead, the provision as now enacted simply referenced “a subsidiary of a
company, not being a private company” – meaning thereby that the legislative
intent, as can be discerned from a plain reading of the statute, is also
demonstrated (or underscored) by the way in which the current provision found
itself onto the statute books.
concept paper was dropped (and no further discussions on this topic were
elicited in the various subsequent committee reports that redrafted the law) and
instead, the provision as now enacted simply referenced “a subsidiary of a
company, not being a private company” – meaning thereby that the legislative
intent, as can be discerned from a plain reading of the statute, is also
demonstrated (or underscored) by the way in which the current provision found
itself onto the statute books.
D) As a result, it is not surprising to find – and, indeed, on
the basis of point #s (B) and (C) above and in order to read the statute
harmoniously – that the reference in the definition of “subsidiary” [Sec. 2(87)] to cover the holding
relationship even qua an overseas “body corporate” is only for purposes of that clause (and not for the entire 2013 Companies Act), which does not,
therefore, extend to the deeming provision; and which this author believes
(regardless of whether this is a drafting error or an oversight), to be a restrictive
stipulation that needs to be interpreted correctly in context, as regards its
applicability to the entire 2013 Companies Act. This analysis does not
even then need to examine the issue as to whether that particular provision in
Sec. 2(87) has to be read into the deeming provision, as even the basis for
such reading together does not arise, if the scheme separating the deeming
provision and 2(87) is properly appreciated in the case of an overseas body corporate
holding company.
the basis of point #s (B) and (C) above and in order to read the statute
harmoniously – that the reference in the definition of “subsidiary” [Sec. 2(87)] to cover the holding
relationship even qua an overseas “body corporate” is only for purposes of that clause (and not for the entire 2013 Companies Act), which does not,
therefore, extend to the deeming provision; and which this author believes
(regardless of whether this is a drafting error or an oversight), to be a restrictive
stipulation that needs to be interpreted correctly in context, as regards its
applicability to the entire 2013 Companies Act. This analysis does not
even then need to examine the issue as to whether that particular provision in
Sec. 2(87) has to be read into the deeming provision, as even the basis for
such reading together does not arise, if the scheme separating the deeming
provision and 2(87) is properly appreciated in the case of an overseas body corporate
holding company.
In other words, since Sec. 2(87)
includes a substantive provision that enables the Government to prescribe such
class or classes of holding companies that will not have layers of subsidiaries
beyond a number they can prescribe (a provision not yet notified to be in
force), it is for such prescriptive requirements that the overseas holding –
subsidiary relationship falls within the definition of “subsidiary”; not with a
view to impinge on the status of the Indian private company subsidiary of such
overseas holding body corporate in such cases, which is a deeming requirement
entirely in the Indian holding context as properly interpreted in point #s (B)
and (C) above. It is pertinent to note that the 1956 Companies Act also had a
similar stipulation – that the expression “company” in this section
(i.e., Sec. 4) includes any body corporate; although, the 1956 Companies
Act did have the benefit of Sec. 4(7).
includes a substantive provision that enables the Government to prescribe such
class or classes of holding companies that will not have layers of subsidiaries
beyond a number they can prescribe (a provision not yet notified to be in
force), it is for such prescriptive requirements that the overseas holding –
subsidiary relationship falls within the definition of “subsidiary”; not with a
view to impinge on the status of the Indian private company subsidiary of such
overseas holding body corporate in such cases, which is a deeming requirement
entirely in the Indian holding context as properly interpreted in point #s (B)
and (C) above. It is pertinent to note that the 1956 Companies Act also had a
similar stipulation – that the expression “company” in this section
(i.e., Sec. 4) includes any body corporate; although, the 1956 Companies
Act did have the benefit of Sec. 4(7).
So, to address those who would
seek to interpret an incorporation of “body corporate” into the term “company”
for purposes of the deeming provision, there is actual legislative force as to
why Sec. 2(87) makes such inclusion only for purposes of that clause – and for no
other provision of the 2013 Companies Act.
Consequently, there can be no reason not to follow the principle of
giving effect to such express words of Sec. 2(87) (especially where no other
conflict with other provisions arise); meaning, thereby, that the position of an
India incorporated private company subsidiary of an overseas body corporate is
untouched by the deeming provision and, as a result, for all consequent
purposes of the 2013 Companies Act.
seek to interpret an incorporation of “body corporate” into the term “company”
for purposes of the deeming provision, there is actual legislative force as to
why Sec. 2(87) makes such inclusion only for purposes of that clause – and for no
other provision of the 2013 Companies Act.
Consequently, there can be no reason not to follow the principle of
giving effect to such express words of Sec. 2(87) (especially where no other
conflict with other provisions arise); meaning, thereby, that the position of an
India incorporated private company subsidiary of an overseas body corporate is
untouched by the deeming provision and, as a result, for all consequent
purposes of the 2013 Companies Act.
The clarification
issued by the MCA admittedly affirms this position; but, its analysis is
incomplete and does not do full justice to the scheme of the 2013 Companies Act,
as explained above. To the extent its conclusion may be regarded as
matching the above analysis, this circular may be considered (although merely
persuasive in effect), with reliance being better placed on a proper
appreciation of the harmonious working (and proper comprehensive reading of the
wording) of the appropriate provisions of the 2013 Companies Act itself lending
greater credibility to the conclusion this article makes – to reiterate, that private
company subsidiary in India of an overseas body corporate holding company will continue
to be a “private company” for purposes of the 2013 Companies Act.
issued by the MCA admittedly affirms this position; but, its analysis is
incomplete and does not do full justice to the scheme of the 2013 Companies Act,
as explained above. To the extent its conclusion may be regarded as
matching the above analysis, this circular may be considered (although merely
persuasive in effect), with reliance being better placed on a proper
appreciation of the harmonious working (and proper comprehensive reading of the
wording) of the appropriate provisions of the 2013 Companies Act itself lending
greater credibility to the conclusion this article makes – to reiterate, that private
company subsidiary in India of an overseas body corporate holding company will continue
to be a “private company” for purposes of the 2013 Companies Act.
– Siddharth
Raja
Raja