Companies (Significant Beneficial Owners) Rules, 2018 notified by MCA

Companies (Significant Beneficial Owners) Rules, 2018 notified by MCA

The MCA has notified the Companies (Significant Beneficial Owners) Rules, 2018, relating to declaration of significant beneficial ownership in shares of a company (u/s 90), filing of return thereof (u/s 89), maintenance of register of significant beneficial owners, etc., applicable w.e.f. 14 June 2018 (the date of publication in OG), as under:

Companies (Significant Beneficial Owners) Rules, 2018: MCA Notification dt. 13 June 2018

G.S.R. 561(E).— In exercise of the powers conferred by Section 90 read with sub-section (1) of section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules, namely :-

1. Short title and commencement.– 

(1) These rules may be called the Companies (Significant Beneficial Owners) Rules, 2018.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions.- 

(1) In these rules, unless the context otherwise requires,-

(a) “Act” means the Companies Act, 2013 (18 of 2013);

(b) “form” means the form specified in Annexure to these rules;

(c) “registered owner” means a person whose name is entered in the register of members of a company as the holder of shares in that company but who does not hold beneficial interest in such shares;

(d) “section” means a section of the Act

(e) “significant beneficial owner” means an individual referred to in sub-section (1) of section 90 (holding ultimate beneficial interest of not less than ten per cent) read with sub-section (10) of section 89, but whose name is not entered in the register of members of a company as the holder of such shares, and the term ‘significant beneficial ownership’ shall be construed accordingly;

Explanation-1: For the purpose of this clause, the significant beneficial ownership, in case of persons other than individuals or natural persons, shall be determined as under–

(i) where the member is a company, the significant beneficial owner is the natural person, who, whether acting alone or together with other natural persons, or through one or more other persons or trusts, holds not less than ten per cent. share capital of the company or who exercises significant influence or control in the company through other means;

(ii) where the member is a partnership firm, the significant beneficial owner is the natural person, who, whether acting alone or together with other natural persons, or through one or more other persons or trusts, holds not less than ten per cent. of capital or has entitlement of not less than ten per cent. of profits of the partnership;

(iii) where no natural person is identified under (i) or (ii), the significant beneficial owner is the relevant natural person who holds the position of senior managing official;

(iv) where the member is a trust (through trustee), the identification of beneficial owner(s) shall include identification of the author of the trust, the trustee, the beneficiaries with not less than ten per cent. interest in the trust and any other natural person exercising ultimate effective control over the trust through a chain of control or ownership;

Explanation-2: It is hereby clarified that instruments in the form of global depository receipts, compulsorily convertible preference shares or compulsorily convertible debentures shall be treated as ‘shares’ for the purpose of this clause;

(2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of Definitions Details) Rules, 2014 shall have the meanings respectively assigned to them in the Act and the said Rules.

3. Declaration of significant beneficial ownership in shares under section 90.- 

(1) Every significant beneficial owner shall file a declaration in Form No. BEN-1 to the company in which he holds the significant beneficial ownership on the date of commencement of these rules within ninety days from such commencement and within thirty days in case of any change in his significant beneficial ownership.

(2) Every individual, who, after the commencement of these rules, acquires significant beneficial ownership in a company, shall file a declaration in Form No. BEN-1 to the company, within thirty days of acquiring such significant beneficial ownership or in case of any change in such ownership.

4. Return of significant beneficial owners in shares.- 

Where any declaration under rule 3 is received by the company, it shall file a return in Form No. BEN-2 with the Registrar in respect of such declaration, within a period of thirty days from the date of receipt of declaration by it, along with the fees as prescribed in Companies (Registration offices and fees) Rules, 2014.

5. Register of significant beneficial owners.- 

(1) The company shall maintain a register of significant beneficial owners in Form No. BEN-3.

(2) The register shall be open for inspection during business hours, at such reasonable time of not less than two hours, on every working day as the board may decide, by any member of the company on payment of such fee as may be specified by the company but not exceeding fifty rupees for each inspection.

6. Notice seeking information about significant beneficial owners.- 

A company shall give notice seeking information in accordance with under sub-section (5) of section 90, in Form No. BEN-4.

7. Application to the Tribunal.- 

The company may apply to the Tribunal in accordance with sub-section (7) of section 90, for order directing that the shares in question be subject to restrictions, including –

(a) restrictions on the transfer of interest attached to the shares in question;

(b) suspension of the right to receive dividend in relation to the shares in question;

(c) suspension of voting rights in relation to the shares in question;

(d) any other restriction on all or any of the rights attached with the shares in question.

8. Non-Applicability.- 

These rules are not made applicable to the holding of shares of companies/ body corporates, in case of pooled investment vehicles/ investment funds such as Mutual Funds, Alternative Investment Funds (AIFs), Real Estate Investment Trusts (REITs) and Infrastructure Investment Trusts (InvITs) regulated under SEBI Act.

Annexure

Form No. BEN-1
Declaration by the beneficial owner who holds or acquires significant beneficial ownership in shares
[Pursuant to section 90(1) of the Companies Act, 2013 and rule 3(1)/3(2)]

Form No. BEN-2
Return to the Registrar in respect of declaration under section 90 received by the company
[Pursuant to section 90(4) of the Companies Act, 2013 and rule 4]

Form no. BEN-3
Register of beneficial owners holding significant beneficial interest
[Pursuant to section 90(2) of the Companies Act, 2013 and rule 5(1)]

Form no. BEN-4

[Pursuant to section 90(5) of the Companies Act, 2013 and rule 6]

[<Insert Company Name>] (the “Company”)

(N.B. please refer above attachment for detailed info/ formats)

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