RETURN OF DEPOSITS TO BE
FILED WITH THE REGISTRAR
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Amendment in?
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Effective Date of New Rules
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New Rules
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RETURN OF DEPOSITS
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22nd January, 2019
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the Companies (Acceptance of
Deposits) Rules, 2014
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What is Deposits?
Deposits mean any
receipt of money by way of deposit or loan or in any other form by a company,
but do not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India.
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Deposits Includes
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But Deposits doesn’t includes
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any
receipt of money by way of deposit or loan or in any other form by a company
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1)
any amount received from the Central Government or a
State Government, or any amount received from any other source whose
repayment is guaranteed by the Central Government or a State Government, or
any amount received from a local authority, or any amount received from a
statutory authority constituted under an Act of Parliament or a State
Legislature
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2)
any amount received from foreign Governments, foreign
or international banks, multilateral financial institutions (including, but
not limited to, International Finance Corporation, Asian Development Bank,
Commonwealth Development Corporation and International Bank for Industrial
and Financial Reconstruction), foreign Governments owned development
financial institutions, foreign export credit agencies, foreign
collaborators, foreign bodies corporate and foreign citizens, foreign
authorities or persons resident outside India subject to the provisions of
Foreign Exchange Management Act, 1999 (42 of 1999) and rules and regulations
made there under
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3)
any amount received as a loan or facility from any
banking company or from the State Bank of India or any of its subsidiary
banks or from a banking institution notified by the Central Government under
section 51 of the Banking Regulation Act, 1949 (10 of 1949), or a
corresponding new bank as defined in clause (d) of section 2 of the Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or
in clause (b) of section (2) of the Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1980 (40 of 1980) , or from a co-operative
bank as defined in clause (b-ii) of section 2 of the Reserve Bank of India
Act, 1934 (2 of 1934)
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4)
any amount received as a loan or financial assistance
from Public Financial Institutions notified by the Central Government in this
behalf in consultation with the Reserve Bank of India or any regional
financial institutions or Insurance Companies or Scheduled Banks as defined
in the Reserve Bank of India Act, 1934 (2 of 1934);
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5)
any amount received against issue of commercial paper
or any other instruments issued in accordance with the guidelines or
notification issued by the Reserve Bank of India
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6)
any amount received by a company from any other company
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7)
any amount received and held pursuant to an offer made
in accordance with the provisions of the Act towards subscription to any
securities, including share application money or advance towards allotment of
securities pending allotment, so long as such amount is appropriated only
against the amount due on allotment of the securities applied for
It is hereby
clarified that -
i.
Please note that the securities for which application
money or advance for such securities was received should be allotted within
60 days (sixty days) from the date of receipt of the application money or
advance for such securities. However, if the company fails to allot the
securities within 60 days, and also such application money or advance is not
refunded to the subscribers within 15 days (fifteen days) from the date of
completion of 60 days (sixty days), then that amount shall be treated as a deposit
under these rules.
ii.
Some companies adjust that money towards other purpose
or future allotment or any other purpose but such adjustment is also not
allowed and shall be treated as Deposits. The only solution is refund within
15 days from the date of completion of 60 days(Sixty days)
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8)
It is very
common that the company receives amount from Directors and from Directors
relatives of the company in the form of loans or share capital. However, any
amount received from any such person should furnish to the company at the
time of giving the money, a declaration in writing to the effect that the
amount is not being given out of funds acquired by him by borrowing or
accepting loans or deposits from others and the Private company shall
disclose the details of money so accepted in the Board's report.
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9)
If a company is
raising amount by issue of bonds and debentures and such issue is backed by
first charge on charge ranking pari passu with first charge on the assets
that are mentioned in Schedule iii of the act excluding intangible
assets of the company or bonds or debentures compulsorily convertible
into shares of the company within 10 yrs provided that the amount of
such bonds/debentures shall not exceed the market value of such assets valued
by registered valuer
Also companies that
issue non convertible debentures for funds (without creating charge on the
assets) and are listed on a recognized stock exchange as per SEBI regulation,
such issue shall not be treated as deposits
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10)
If a company receives advance from his employee upto
his annual salary under a contract of employment with the company and in the
nature of non-interest bearing security deposit
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11)
Companies receiving non-interest bearing amount and
holding such amount in form of trust
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12)
There are some companies which receive advance in the
course of its business, such as
a)
For the supply of goods/provision of
services provided that such advance is used against supply of goods/provision
of services within a period of 365 days of receiving such advance (in case of
legal proceedings the time limit of 365 days shall be ignored.)
b)
Consideration for an immovable
property under an agreement or arrangement , provided that such advance is
adjusted against such property
c)
Security deposit for the performance
of the contract for supply of goods or provision of services
d)
For long term projects for supply of
capital goods except those covered under item (b) above i.e. Immovable
Property
e)
For performing future service as in
case of warranty or maintenance contract (written agreement) if period of
completing such future service is upto 5 years
f)
Received from sectoral regulator or as
per the direction of Central
or State Government
g)
For subscription towards publication
(print or electronic) and same will be adjusted against receipt of such
publication
Provided that if
the amount received under items (a), (b) and (d) above becomes refundable
(with or without interest) due to the reasons that the company accepting the
money has not received necessary approvals, then the amount shall be treated
as deposits.
For the purposes of
this sub-clause the amount shall be deemed to be deposits on the expiry of
15 days from the date they become due for refund
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13)
if promoters introduce advance by way of unsecured loan
in pursuance of the stipulation of any lending financial institution or a
bank subject to following conditions, namely
a)
The loan is brought because of stipulation imposed by
the lending institutions on the promoters to contribute such finance;
b)
The loan is provided by the promoters themselves or by
their relatives or by both; and
c)
The exemption under this sub-clause shall be available
only till the loans of financial institution or bank are repaid and not
thereafter;
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14)
Any amount accepted by a Nidhi company in accordance
with the rules made under section 406 of the Act.
For the purposes of
this clause, any amount.-
a)
If company receives any amount (in installment or
otherwise) from a person with promise/offer to give returns, (cash or kind)
on completion of the period specified in the promise/offer, or
b)
Any additional contributions, over and above the amount
under item (a) above, made by the company as part of such promise/offer,
shall
be considered as deposits unless specifically excluded under this clause
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It has been clarified vide explanation
to Rule 16 that form DPT-3 shall be filled by all companies other than
government companies for furnishing of information regarding outstanding
loan, now the Rule 16 reads as follows
{Every
company to which these rules apply, shall on or before the 30th day of June, of
every year, file with the Registrar, a return in Form DPT-3 along with the fee as provided in
Companies (Registration Offices and Fees) Rules, 2014 and furnish the
information contained therein as on the 31st day of March of that year duly
audited by the auditor of the company
“Explanation.-
It is hereby clarified that Form DPT-3 shall be used for filing return of deposit
or particulars of transaction not considered as deposit or both by every
company other than Government company.”}
Moreover the addition of sub rule 3 to
Rule 16A, has clarified the time limit, within which the form DPT-3 is required
to be filled after publication of this notification which is 90 days(Ninety days),
and now Rule 16A reads as follows
{16A.
Disclosures in the financial statement.-
1.
Every company, other than a private
company, shall disclose in its financial statement, by way of notes, about the
money received from the director.
2. Every
private company shall disclose in its financial statement, by way of notes,
about the money received from the directors, or relatives of directors.”
3. Every
company other than Government company shall file a onetime return of
outstanding receipt of money or loan by a company but not considered as
deposits, in terms of clause (c) of sub-rule 1 of rule 2 from the 01st April,
2014 to the date of publication of this notification in the Official Gazette,
as specified in Form DPT-3 within ninety days from the date of said publication
of this notification along with fee as provided in the Companies (Registration
Offices and Fees) Rules, 2014}
So, every company other than Govt
Company shall furnish onetime information about the outstanding receipt of
money or loan by a Company but not considered as deposits. Cases between
holding and subsidiary companies regarding Secured/Unsecured Loan, ECB are also
required to be reported.
What
if the company has only Deposits and no outstanding receipt of money??
Every company to which these rules
apply, shall on or before the 30th day of June, of every year, file
with the Registrar, a return in Form DPT-3 along with the fee and furnish the
information contained therein as on the 31st day of March of that
year duly audited by the auditor of the company.
