Related party transactions. Managing new requirements under Companies Act, 2013 and SEBI Guidelines

Transcription

1 Related party transactions Managing new requirements under Companies Act, 2013 and Guidelines

2 Starting 2014, related party transactions will need to meet significant disclosure and compliance requirements 1 Immediate impact Increased transparency for related party transactions (RPT), which are now more aligned with the arm s length principle: Transfer pricing is already a focus area for tax authorities globally Enhanced accountability for key management New responsibilities for the board of directors and audit committees Key implications All companies RPTs to be at arm s length RPTs and subsequent modification require prior audit committee approval Audit Committee have the power to obtain professional advice from external sources/ full access to information contained in the records of the company RPTs to be disclosed in board s report along with the justification for entering into such transactions RPTs not in the ordinary course or not at arm s length require Prior approval of board Prior approval of shareholders (special resolution) exceeding specified thresholds Interested members abstain from voting on special resolution Details of RPTs to be filed with Registrar of Companies (ROC) Additional requirement for listed companies Prior approval of shareholders required for all material RPTs Policy of dealing with RPTs to be disclosed on website and in annual report 1. Section 188 of the Companies Act, 2013 () & Revised Clause 49 of the Equity Listing Agreement ()

3 Steps to manage the change Identification of related parties Scope of related parties >AS-18 - Related Party Transaction and Income-tax Act, 1961 Mapping of parties under multiple regulations to help identify and manage requirements and drive synergies Identification of transactions Scope under new requirements to typically cover all transactions Focus also on identifying transactions which are presently not charged Clarity awaited on meaning of transactions not in the ordinary course of business Pricing policy Guidance One-time risk assessment of all RPTs to ensure consistent approach going forward Policy based approach for recurring transactions to drive consistency Deviations and basis for the same, also to be documented Guidance to business to explain requirements and ensure real-time synergies with finance and tax teams Training materials to explain one-time and ongoing documentation requirements to finance and tax teams Documentation Systems and controls Detailed documentation to comply with arm s length requirements Approach to identify one-time documentation and ongoing documentation, aligned with pricing policy will help manage requirements System controls to track related parties and transactions (recurring as well as non-routine) Automating pricing policy implementation and documentation requirements to go a long way to ease burden and ensure compliance Regular system audits critical to strengthen processes Justifying arm s length pricing Entity related Price related Profile of company Profile of group Profile of industry Profile of related parties Price setting process Terms of the transaction Role and risks of each party Internal and external comparables including industry and local benchmarks Forecasts, budgets, etc Transaction related Agreements Invoices Pricing related correspondence (letters, s, etc)

4 Appendix A: Details to be filed with ROC 2 Details of material contracts or arrangements or transactions at arm s length basis Name(s) of the related party and nature of relationship Nature of contracts, arrangements, transactions Duration of the contracts, arrangements, transactions Salient terms of the contracts, arrangements or transactions including the value, if any Date(s) of approval by the board Amount paid as advances, if any Details of contracts or arrangements or transactions not at arm s length basis In addition to the above, date on which the special resolution was passed in general meeting, and Justification for entering into such contracts, arrangements or transactions Appendix B: Consequence of non-compliance with the Voidable Indemnity Disqualification Recovery At the option of the board, unless ratified within three months, as the case may be, by board or shareholder Directors to indemnify for any losses where transactions are with directors (or related party of such director) In case of conviction, the directors liable to be disqualified to act as director for a five-year period The company and its shareholders to initiate recovery of losses from director or any employee who had entered into any unauthorized transactions Penalty Fine from 25,000 to 5,00,000 INR (public and private company) Imprisonment upto one year or fine as above or both (listed company) 2. Form AOC-2 & Form AOC-4

5 Appendix C: Key terms explained 3 Related parties Holding and Subsidiary companies (direct or indirect) Associate Company (>20% or control of business decisions under an agreement) Directors and Key Management Personnel (including their relatives) of the company or its holding company Firms and Private companies in which directors, managers or relatives are partner, director or members Any person on whose advice, unless given in a professional capacity, a director or manager of the company is accustomed to act Public company in which the director or manager is a director and 4 holds along with his relatives more than 2 % of the paid up share capital Related parties as defined above Fellow group entities, joint ventures of same third party and combinations thereof Post-employment benefit plans RPT Sale, purchase, leasing or supply of goods or property of any kind Availing or rendering of any service Appointment of agent for the above Underwriting of securities Transfer of resources, services or obligations between a company and a related party Material RPT Not defined Form AOC-4 however requires disclosure of details of material contracts or arrangement or transactions at arm s length basis Material RPT: Transaction (together with previous transactions with a related party) exceeds 5% of the annual turnover; or exceeds 20% of the net worth of the company as per last year s audited financials Ordinary course of business Not defined Standard on Auditing 550: Related parties issued by ICAI provides examples of transactions outside the normal course of business E.g. corporate restructurings or acquisitions, sales transactions with unusually large discounts or returns, rendering of management services by the entity to another party for no consideration, etc. Not relevant (since all RPTs require audit committee approval and all material RPTs require shareholder approval) 3. Illustrative, not exhaustive 4. To be notified

6 Contacts Shyamal Mukherjee Joint Leader, Tax and Regulatory Services Phone: shyamal.mukherjee@in.pwc.com Ketan Dalal Managing Partner (West) and Joint Leader, Tax and Regulatory Services Phone: ketan.dalal@in.pwc.com Sanjay Tolia Country Leader, Transfer Pricing Phone: sanjay.tolia@in.pwc.com Transfer Pricing contacts Ahmedabad Sanjay Tolia Phone: sanjay.tolia@in.pwc.com Bangalore/ Hyderabad Indraneel R Chaudhury Rakesh Mishra Eric Mehta Phone: indraneel.r.chaudhury@in.pwc.com rakesh.mishra@in.pwc.com eric.mehta@in.pwc.com Chennai Kunj Vaidya Phone: kunj.vaidya@in.pwc.com Delhi Rahul K Mitra Sandeep Puri Phone: rahul.k.mitra@in.pwc.com sandeep.puri@in.pwc.com Kolkata Rahul K Mitra Phone: rahul.k.mitra@in.pwc.com Mumbai Sanjay Tolia Bipin Pawar Dhaivat Anjaria Phone: sanjay.tolia@in.pwc.com bipin.pawar@in.pwc.com dhaivat.anjaria@in.pwc.com Pune Dinesh Supekar Phone: dinesh.supekar@in.pwc.com Data Classification: DC PricewaterhouseCoopers Private Limited. All rights reserved. In this document, PwC refers to PricewaterhouseCoopers Private Limited (a limited liability company in India having Corporate Identity Number or CIN : U74140WB1983PTC036093), which is a member firm of PricewaterhouseCoopers International Limited (PwCIL), each member firm of which is a separate legal entity. AK May 2014 Related party transactions.indd Designed by: PwC Brand and Communications, India