Declaration in Respect of Beneficial Interest

Introduction-

The fact that who shall be the "beneficial owner" was clear from the time Section 89 was enacted, i.e. 1st April 2014, "beneficial owner" will be the person where "beneficial interest" is vested, but there was a lot of ambiguity as to what amounts to "beneficial interest" and on what grounds we can say that the "beneficial interest" lies with a person, not being a person whose name is registered in the Register of Members. Companies (Amendment) Act, 2017 added a new sub-section (10) to Section 89 to define "beneficial interest" with effect from June 13, 2018. Section 90 was also substituted for SBO identification.

According to section 89 of the Companies Act,2013:

(1) Where the name of a person is entered in the register of members of a company as the holder of shares in that company but who does not hold the beneficial interest in such shares, such person shall make a declaration within such time and in such form as may be prescribed to the company specifying the name and other particulars of the person who holds the beneficial interest in such shares.

(2) Every person who holds or acquires a beneficial interest in a share of a company shall make a declaration to the company specifying the nature of his interest, particulars of the person in whose name the shares stand registered in the books of the company and such other particulars as may be prescribed.

(3) Where any change occurs in the beneficial interest in such shares, the person referred to in sub-section (1) and the beneficial owner specified in sub-section (2) shall, within thirty days from the date of such change, make a declaration to the company in such form and containing such particulars as may be prescribed.

(4) The Central Government may make rules to provide for the manner of holding and disclosing beneficial interest and beneficial ownership under this section.

(5) If any person fails to make a declaration as required under subsection (1) or sub-section (2) or sub-section (3), he shall be liable to a penalty of fifty thousand rupees and in case of continuing failure, with a further penalty of two hundred rupees for each day after the first during which such failure continues, subject to a maximum of five lakh rupees.]

(6) Where any declaration under this section is made to a company, the company shall make a note of such declaration in the register concerned and shall file, within thirty days from the date of receipt of declaration by it, a return in the prescribed form with the Registrar in respect of such declaration with such fees or additional fees as may be prescribed.

[(7) If a company, required to file a return under sub-section (6), fails to do so before the expiry of the time specified therein, the company and every officer of the company who is in default shall be liable to a penalty of one thousand rupees for each day during which such failure continues, subject to a maximum of five lakh rupees in the case of a company and two lakh rupees in case of an officer who is in default.]

(8) No right about any share in respect of which a declaration is required to be made under this section but not made by the beneficial owner, shall be enforceable by him or by any person claiming through him.

(9) Nothing in this section shall be deemed to prejudice the obligation of a company to pay a dividend to its members under this Act and the said obligation shall, on such payment, stand discharged.

[(10) For this section and section 90, beneficial interest in a share includes, directly or indirectly, through any contract, arrangement, or otherwise, the right or entitlement of a person alone or together with any other person to—

(i) exercise or cause to be exercised any or all of the rights attached to such share; or

(ii) receive or participate in any dividend or other distribution in respect of such share.]

[(11) The Central Government may, by notification, exempt any class or classes of persons from complying with any of the requirements of this section, except sub-section (10), if it is considered necessary to grant such exemption in the public interest and any such exemption may be granted either unconditionally or subject to such conditions as may be specified in the notification.]

Objectives-

• Section 89 has an objective to check where does the “beneficial interest” lies, irrespective of the quantum of “beneficial interest”, if any person whose name is registered in respect of particular shares doesn’t have any beneficial interest in those shares shall declare to Company in MGT-4 and person who has been vested with such beneficial interest declare in MGT-5 and subsequently, the Company shall file e-Form MGT-6 to RoC.

• It may not be necessary every time the firm obtains a declaration of MGT-4 & MGT-5, since the registered owner may sometimes hold shares for the benefit of another person for shares registered in his name. If the beneficial interest is not held by the registered owner, Section 89 requires disclosure.

• Section 89 has been harmonized in a manner that if any individual having “beneficial interest” in any shares not registered in his name and has declared in Form MGT-5 to the Reporting Company shall be treated to have rights or entitlements in the shares “DIRECTLY”.

#declaration #beneficialinterest #section89 #companiesact2013