Section 90 of Companies Act, 2013 – REGISTER OF SIGNIFICANT BENEFICIAL OWNERS IN A COMPANY

SECTION 90. Register of significant beneficial owners in a company

[Effective from 1st April, 2014]

EXEMPTIONS

Section 90 shall not apply to a Government Company, vide Notification No. GSR 463(E) dated 5th June, 2015.

The above mentioned exception shall be applicable to a government company which has not committed a default in filing its financial statements under section 137 of the said Act or annual return under section 92 of the said Act with the Registrar, vide amendment notification F. No. 1/2/2014- CL-V dated 13th June 2017. 

[1][(1) Every individual, who acting alone or together, or through one or more persons or trust, including a trust and persons resident outside India, holds beneficial interests, of not less than twenty-five per cent. or such other percentage as may be prescribed, in shares of a company or the right to exercise, or the actual exercising of significant influence or control as defined in clause (27) of section 2, over the company (herein referred to as “significant beneficial owner”), shall make a declaration to the company, specifying the nature of his interest and other particulars, in such manner and within such period of acquisition of the beneficial interest or rights and any change thereof, as may be prescribed:

Provided that the Central Government may prescribe a class or classes of persons who shall not be required to make declaration under this sub-section.

(2) Every company shall maintain a register of the interest declared by individuals under sub-section (1) and changes therein which shall include the name of individual, his date of birth, address, details of ownership in the company and such other details as may be prescribed.

(3) The register maintained under sub-section (2) shall be open to inspection by any member of the company on payment of such fees as may be prescribed.

(4) Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed.

[7] [(4A) Every company shall take necessary steps to identify an individual who is a significant beneficial owner in relation to the company and require him to comply with the provisions of this section.]

(5) A company shall give notice, in the prescribed manner, to any person (whether or not a member of the company) whom the company knows or has reasonable cause to believe—

(a) to be a significant beneficial owner of the company;

(b) to be having knowledge of the identity of a significant beneficial owner or another person likely to have such knowledge; or

(c) to have been a significant beneficial owner of the company at any time during the three years immediately preceding the date on which the notice is issued, and who is not registered as a significant beneficial owner with the company as required under this section.

(6) The information required by the notice under sub-section (5) shall be given by the concerned person within a period not exceeding thirty days of the date of the notice.

(7) The company shall,—

(a) where that person fails to give the company the information required by the notice within the time specified therein; or

(b) where the information given is not satisfactory,

apply to the Tribunal within a period of fifteen days of the expiry of the period specified in the notice, for an order directing that the shares in question be subject to restrictions with regard to transfer of interest, suspension of all rights attached to the shares and such other matters as may be prescribed.

(8) 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 the rights attached with the shares within a period of sixty days of receipt of application or such other period as may be prescribed.

[(9) The company or the person aggrieved by the order of the Tribunal may make an application to the Tribunal for relaxation or lifting of the restrictions placed under sub-section (8), within a period of one year from the date of such order:

Provided that if no such application has been filed within a period of one year from the date of the order under sub-section (8), such shares shall be transferred, without any restrictions, to the authority constituted under sub-section (5) of section 125, in such manner as may be prescribed;][2]

[8] [(9A) The Central Government may make rules for the purposes of this section.]

(10) If any person fails to make a declaration as required under sub-section (1), he shall be punishable  [with imprisonment for a term which may extend to one year or][3] with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees [or with both][3] and where the failure is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the failure continues.

(11) If a company, required to maintain register under sub-section (2) and file the information under sub-section (4),[9] [or required to take necessary steps under sub-section (4A)] fails to do so or denies inspection as provided therein, the company and every officer of the company who is in default shall be punishable with fine which shall not be less than ten lakh rupees but which may extend to fifty lakh rupees and where the failure is a continuing one, with a further fine which may extend to one thousand rupees for every day after the first during which the failure continues.

(12) If any person wilfully furnishes any false or incorrect information or suppresses any material information of which he is aware in the declaration made under this section, he shall be liable to action under section 447.]

Applicable Rules

Companies (Significant Beneficial Owners) Rules,2018

(Effective from 13th June 2018)

Rule 2 Definitions –

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

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

[4][(b) “control” means control as defined in clause (27) of section 2 of the Act;

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

(d) “majority stake” means;-

       (i) holding more than one-half of the equity share capital in the body corporate; or

      (ii) holding more than one-half of the voting rights in the body corporate; or

      (iii) having the right to receive or participate in more than one-half of the distributable dividend or      any other distribution by the body corporate;

(e) “partnership entity” means a partnership firm registered under the Indian Partnership Act,1932 (9 of 1,932) or a limited liability partnership registered under the Limited Liability Partnership Act, 2008 (6 of 2009);

(f) “reporting company” means a company as defined in clause (20) of section 2 of the Act, required to comply with the requirements of section 90 of the Act;

(g) “section” means a section of the Act;

(h) “significant beneficial owner” in relation to a reporting company means an individual referred to in sub-section (1) of section 90, who acting alone, together, or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:-

     (i) holds indirectly, or together with any direct holdings, not less than ten per cent. of the shares;

   (ii) holds indirectly,- or together with any direct holdings, not less than ten per cent. of the voting rights in the shares;

   (iii) has right to receive or participate in not less than ten per cent. of the total distributable dividend, or any other distribution, in a financial year through indirect holdings alone, or together with any direct holdings;

    (iv) has right to exercise, or actually exercises, significant influence or control, in any manner other than through direct-holdings alone:

Explanation I. – For the purpose of this clause, if an individual does not hold any right or entitlement indirectly under sub-clauses (i), (ii) or (iii), he shall not be considered to be a significant beneficial owner.

Explanation II – For the purpose of this clause, an individual shall be considered to hold a right or entitlement directly in the reporting company, if he satisfies any of the following criteria, namely.-

  (i) the shares in the reporting company representing such right or entitlement are held in the name of the individual;

  (ii) the individual holds or acquires a beneficial interest in the share of the reporting company under sub-section (2) of section 89, and has made a declaration in this regard to the reporting company.

Explanation III. – For the purpose of this clause, an individual shall be considered to hold a right or entitlement indirectly in the reporting company, if he satisfies any of the following criteria, in respect of a member of the reporting company, namely:-

(i) where the member of the reporting company is a body corporate (whether incorporated or registered in India or abroad), other than limited liability partnership, and the individual,-

  (a) holds majority stake in that member; or

  (b) holds majority stake in the ultimate holding company (whether incorporated or registered in India or abroad) of that member;

(ii) where the member of the reporting company is a Hindu Undivided Family (HUF) (through karta), and the individual is the karta of the HUF;

(iii) where the member of the reporting company is a partnership entity (through itself or a partner), and the individual,-

    (a) is a partner; or

    (b) holds majority stake in the body corporate which is a partner of the partnership entity; or

   (c) holds majority stake in the ultimate holding company of the body corporate which is a partner of the partnership entity.

(iv) where the member of the reporting company is a trust (through trustee), and the individual,-

   (a) is a trustee in case of a discretionary trust or a charitable trust;

   (b) is a beneficiary in case of a specific trust;

   (c) is the author or settlor in case of a revocable trust.

(v) where the member of the reporting company is,-

  (a) a pooled investment vehicle; or

 (b) an entity controlled by the pooled investment vehicle, based in member State of the Financial Action Task Force on Money Laundering and the regulator of the securities market in such member State is a member of the International Organization of Securities Commissions, and the individual in relation to the pooled investment vehicle,-

 (A) is a general partner; or

 (B) is an investment manager; or

 (C) is a Chief Executive Officer where the investment manager of such pooled vehicle is a body corporate or a partnership entity.

Explanation IV. Where the member of a reporting company is,

 (i) a pooled investment vehicle; or

 (ii) an entity controlled by the pooled investment vehicle,

based in a jurisdiction which does not fulfill the requirements referred to in clause (v) of Explanation III, the provisions of clause (i) or clause (ii) or clause (iii) or clause (iv) of Explanation III, as the case may be, shall apply.

Explanation V. – For the purpose of this clause, if any individual, or individuals acting through any person or trust, act with a common intent or purpose of exercising any rights or entitlements, or exercising control or significant influence, over a reporting company, pursuant to an agreement or understanding, formal or informal, such individual, or individuals, acting through any person or trust, as the case may be, shall be deemed to be ‘acting together’.

Explanation VI. – For the purposes of this clause, the instruments in the form of global depository receipts, compulsorily convertible preference shares or compulsorily convertible debentures shall be treated as ‘shares’.

(i) “significant influence” means the power to participate, directly or indirectly, in the financial and operating policy decisions of the reporting company but is not control or joint control of those policies’.]

(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.

[5] [Rule 2A. Duty of the reporting company.- (1) Every reporting company shall take necessary steps to find out if there is any individual who is a significant beneficial owner, as defined in clause (h) of rule 2, in relation to that reporting company, and if so, identify him and cause such individual to make a declaration in Form No. BEN-1.

(2) Without prejudice to the generality of the steps stated in sub-rule (1), every reporting company shall in all cases where its member (other than an individual), holds not less than ten per cent. of its;-

     (a) shares, or

    (b) voting rights, or

    (c) right to receive or participate in the dividend or any other distribution payable in a financial year,

give notice to such member, seeking information in accordance with subsection (5) of section 90, in Form No. BEN-4.

Rule 3. Declaration of significant beneficial ownership under section 90.- (1) On the date of commencement of the Companies (Significant Beneficial Owners) Amendment Rules, 2019, every individual who is a significant beneficial owner in a reporting company, shall file a declaration in Form No. BEN-1 to the reporting company within ninety days from such commencement.

(2) Every individual, who subsequently becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change shall file a declaration in Form No. BEN-1 to the reporting company, within thirty days of acquiring such significant beneficial ownership or any change therein.

Explanation.- Where an individual becomes a significant beneficial owner, or where his significant beneficial ownership undergoes any change, within ninety days of the commencement of the Companies (Significant Beneficial Owners) Amendment Rules, 2019, it shall be deemed that such individual became the significant beneficial owner or any change therein happened on the date of expiry of ninety days from the date of commencement of said rules, and the period of thirty days for filing will be reckoned accordingly.

Rule 4. Return of significant beneficial owners in shares.- Upon receipt of declaration under rule 3, the reporting company 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 such declaration by it, along with the fees as prescribed in Companies (Registration offices and fees) Rules, 2014.”]

Rule 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.

Rule 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.

[6] [Rule 7. Application to the Tribunal.- The reporting company shall apply to the Tribunal, –

(i) where any person fails to give the information required by the notice in Form No. BEN-4, within the time specified therein; or

(ii) where the information given is not satisfactory, 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 or any other distribution 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.

Rule 8. Non-Applicability.-These rules shall not be made applicable to the extent the share of the reporting company is held by,-

(a) the authority constituted under sub-section (5) of section 125 of the Act;

(b) its holding reporting company:

Provided that the details of such holding reporting company shall be reported in Form No. BEN-2.

(c) the Central Government, State Government or any local Authority;

(d) (i) a reporting company, or

   (ii) a body corporate, or

  (iii) an entity,

controlled by the Central Government or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments;

(e) Securities and Exchange Board of India registered Investment Vehicles such as mutual funds, alternative investment funds (AIF), Real Estate Investment Trusts (REITs), Infrastructure Investment Trust (lnVITs) regulated by the Securities and Exchange Board of India,

(f) Investment Vehicles regulated by Reserve Bank of India, or Insurance Regulatory and Development Authority of India, or Pension Fund Regulatory and Development Authority.]

Applicable Circulars

Relaxation of additional fees and extension of last date of filing of Form BEN-2 under the Companies Act. 2013.

Circular No. 7/2018 dated 6-9-2018

The Ministry of Corporate Affairs has received several representations regarding extension of the last date for filing of e-Form BEN-2 without additional fees on account of Companies (Significant Beneficial Owners) Rules, 2018 notified vide G.S.R. No. 561(E) dated 13.06.2018. The matter has been examined and it is stated that the time limit for filing the BEN-2 form would be 30 days from the date of deployment of BEN-2 e-form on the MCA-21 portal and no additional fee shall be levied if the same is filed within 30 days from the date of deployment of the said e-form.

Clarification in filing BEN-1 under the Companies Act. 2013.

Circular No. 8/2018 dated 10-09-2018

In continuation of General Circular No. 07/2018 dated 06.09.2018, the Ministry of Corporate Affairs has received from stakeholders expressing certain difficulties in filing a declaration in Form No. BEN-1 in respect of Companies (Significant Beneficial Owners) Rules, 2018 notified vide G.S.R. No. 561(E) dated 13.06.2018.

Accordingly, the matter has been examined and it is hereby informed that keeping in view stakeholders concerns, Form No.BEN-1 would be revised. As such, the due date of 10th September, 2018 for filing BEN-1 declaration would be revised and a revised BEN-1 form would be notified shortly. Stakeholders are advised to file declaration as per the revised form only and adhere to the time lines which will be specified therein

                                           Relaxation of additional fees and extension of last date of filing of                                                               Form BEN-2 under the Companies Act, 2013

Circular No. 08/2019 dated 29.07.2019

The Ministry of Corporate Affairs has received several representations regarding extension of the last date for filing of e-Form No.BEN-2 without additional fees on account of Companies (Significant Beneficial Owners) Second Amendment Rules, 2019 notified vide G.S.R. No. 446 (E) dated 01.07.2019. The matter has been examined and it is hereby informed that the time limit for filing e-form No.BEN-2 is extended upto 30.09.2019 without payment of additional fee and thereafter fee and additional fee shall be payable.

                                          Relaxation of additional fees and extension of last date of filing of                                                               Form BEN-2 and BEN-1 under the Companies Act, 2013

                                                                          Circular No. 10/2019 dated 24th September, 2019

The Ministry of Corporate Affairs has received representations regarding extension of the last date for filing of e-Form BEN-2 without additional fees on account of certain new aspects which require further examination and clarification. The matter has been examined and it is hereby informed that the time limit for filing e-form No. BEN-2 is extended upto 31.12.2019 without payment of additional fee and thereafter fee and additional fee shall be payable. Consequent to the extension in the date of filing of e-Form BEN-2, the date of filing of Form BEN-1 may be construed accordingly.

Relaxation of additional fees and extension of last date of filing of Form No.BEN-2 and BEN-1 under the Companies Act 2013

General Circular No. 1/2020 dated 01-01-2020

In continuation to this Ministry’s General Circular no.10/2019 dated 24.09.2019, the Ministry of Corporate Affairs has received further representations regarding extension of the last date for filing of e-form BEN-2 without additional fees, which are being examined.

2. Considering such representations and examination, it is hereby informed that the time limit for filing e-form No.BEN-2 is extended upto 31.03.2020 without payment of additional fee and thereafter fee and additional fee shall be payable. Consequent to such extension of the date of filing e-form No. BEN-2, the date of filing of Form No.BEN-1 may be construed accordingly

 

[1] Substituted vide Companies Amendment Act, 2017 vide notification no F. No. 1/1/2018-CL.I dated 13th June 2018. Prior to substitution it read as under-

“Where it appears to the Central Government that there are reasons so to do, it may appoint one or more competent persons to investigate and report as to beneficial ownership with regard to any share or class of shares and the provisions of section 216 shall, as far as may be, apply to such investigation as if it were an investigation ordered under that section.”

[2]Substituted by The Companies (Amendment) Ordinance, 2019 dated 12th January, 2019 effective from 2nd November, 2018. Prior to substitution it read as under:-

“(9) The company or the person aggrieved by the order of the Tribunal may make an application to the Tribunal for relaxation or lifting of the restrictions placed under sub-section (8).”

[3] Inserted by The Companies (Amendment) Ordinance, 2019 dated 12th January, 2019 effective from 2nd November, 2018.

[4] Substituted by the Companies (Significant Beneficial Owners) Amendment Rules, 2019 vide Notification no. G.S.R. (E) dated 8th Feb, 2019. Prior to Substitution it read as under-

“(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 l. – 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 II. 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;”

[5]Substituted by the Companies (Significant Beneficial Owners) Amendment Rules, 2019 vide Notification no. G.S.R. (E) dated 8th Feb, 2019. Prior to Substitution it read as under-

“Rule 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.

Rule 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.”

[6] Substituted by the Companies (Significant Beneficial Owners) Amendment Rules, 2019 vide Notification no. G.S.R. (E) dated 8th Feb, 2019. Prior to Substitution it read as under-

“Rule 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.

Rule 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, Alterative Investment Funds (AIFs), Real Estate Investment Trusts(REITs) and Infrastructure Investment Trusts (lnvlTs) regulated under SEBI Act.”

[7] Inserted by Companies (Amendment) Act, 2019 vide notification No. File No. 1/5/2019-CL-I dated 14th August, 2019.

[8] Inserted by Companies (Amendment) Act, 2019 vide notification No. File No. 1/5/2019-CL-I dated 14th August, 2019.

[9] Inserted by Companies (Amendment) Act, 2019 vide notification No. File No. 1/5/2019-CL-I dated 14th August, 2019.