A guide to understanding One person company under Indian Company Law

 

By Harshvardhan Tripathi, for Legal Corner LLP. Harshvardhan is a fifth year student of NALSAR University of Law and will be graduating in 2022.

The views expressed here are not to be considered as legal opinion. You may not rely on this article as legal advice. You should reach out to me (chetana@legalcornerllp.com) if you are planning to consider incorporate or expand your existing business in the US so as to get legal advice that is specific to your business needs

As per the Ministry of Corporate Affairs, there were 34,235 One Person Companies out of a total number of about 1.3 million active companies in India, as of 31 December 2020.

What is one person company?

Section 2 of the Indian Companies Act, 2013 defines a one-person company as a company that only has one person as a member. The members of a company are nothing but subscribers to its Memorandum of Association (MoA), or its shareholders. These companies get all the benefits of a private company such as they too have access to credits, bank loans, limited liability, legal protection, etc.

What are the advantages of a one-person company?

1. Legal status

 The OPC receives a separate legal entity status from the member. The separate legal entity of the OPC gives protection to the single individual who has incorporated it. The liability of the member is limited to his/her shares, and he/she is not personally liable for the loss of the company.  Thus, the creditors can sue the OPC and not the member or director.

2. Easy to obtain funds 

Since OPC is a private company, it is easy to go for fundraising through venture capitals, angel investors, incubators etc. The Banks and the Financial Institutions prefer to grant loans to a company rather than a proprietorship firm. Thus, it becomes easy to obtain funds.

3. Less compliances 

The Companies Act, 2013 provides certain exemptions to the OPC with relation to compliances. The OPC need not prepare the cash flow statement. The company secretary need not sign the books of accounts and annual returns and be signed only by the director.

4. Easy incorporation 

 It is easy to incorporate OPC as only one member and one nominee is required for its incorporation. The member can be the director also. The minimum authorised capital for incorporating OPC is Rs.1 lakh but there is no minimum paid-up capital requirement. Thus, it is easy to incorporate as compared to the other forms of company.

5. Easy to manage 

Since a single person can establish and run the OPC, it becomes easy to manage its affairs. It is easy to make decisions, and the decision-making process is quick. The ordinary and special resolutions can be passed by the member easily by entering them into the minute book and signed by the sole member. Thus, running and managing the company is easy as there won’t be any conflict or delay within the company.

6. Perpetual succession 

The OPC has the feature of perpetual succession even when there is only one member. While incorporating the OPC, the single-member needs to appoint a nominee. Upon the member’s death, the nominee will run the company in the member’s place.

7. Suitable for only small business 

OPC is suitable for small business structure. The maximum number of members the OPC can have is one at all times. More members or shareholders cannot be added to OPC to raise further capital. Thus, with the expansion and growth of the business, more members cannot be added.

What are the disadvantages of one person company?

1. Restriction of business activities 

The OPC cannot carry out Non-Banking Financial Investment activities, including the investments in securities of anybody corporates. It cannot be converted to a company with charitable objects mentioned under Section 8 of the Companies Act, 2013.

2. Ownership and management

Since the sole member can also be the director of the company, there will not be a clear distinction between ownership and management. The sole member can take and approve all decisions. The line between ownership and control is blurred, which might result in unethical business practices.

How to incorporate such a company?

Section 3 provides for incorporating such a company. It mentions that a company may be formed for any lawful purpose by one person. The memorandum of the one-person company has to state the name of some other person with his prior written consent in the prescribed form who will become the member of the company in the event of death of the person forming the one-person company or in case of his incapacity to contract.

The written consent of such person has to be filed with the registrar at the time of incorporation of the company. Such a person may also withdraw his/her consent in the prescribed manner. The one person member of the company may at any time substitute such person with another person by giving notice in the prescribed manner.

It is the duty of the member of one person Company to inform the company of the change of the other person nominated by him by indicating in the memorandum or otherwise within a specified time and manner as may be prescribed. The company has to inform the registrar of any such changes in the prescribed time and manner. However, any such change does not to amount to an ‘alteration’ of the memorandum.

Position of directors in OPC

Only one director is compulsory for such a one-person company. As per Section 149, the requirements that every company has to have at least one director state in India for a total period of not less than 182 days in the previous calendar year, would have to be complied with by the one person himself. Alternatively, he may have to keep another person as a director for such compliance. An individual who is a member is deemed to be the first director of the one person company till such time that subsequent director or directors are appointed in accordance with the provision of the act.

Requirement of meetings for OPC

In the case of one person company, a small company, and a dormant company the requirement of two meetings is deemed to have been complied with if at least one meeting of board has been conducted in half a calendar year and the gap between the two meetings is not less than 90 days. The provisions of section 174 which concerns the quorum of the meeting will also not apply to one person company.

Determination of Joint Employer Status Under the NLRA

By Shreya Kalidindi, for Legal Corner LLP. Shreya is a fourth-year student of NALSAR University of Law and will be graduating in 2022.

(The views expressed here are not to be considered as legal opinion. You may not rely on this article as legal advice. You should reach out to me (chetana@legalcornerllp.com) if you need assistance with incorporation of your entity in the US so as to get legal advice that is specific to your business needs).

What is Joint Employment?

Joint Employment is a scenario where there are two entities acting as a person’s employer. These entities are collectively known as Joint Employers, and usually comprise of a direct employer who has a say in all matters relating to the control and supervision of the employee, and one or more secondary employers who have the power to exercise some – if not the same – degree of control and supervision.

However, it is important to note that there is more than one way to legally define Joint Employment. This depends on the purpose for which the Joint Employment relationship is sought to be determined (i.e., the claim being made).

Regardless, if two or employers are deemed to be joint under a legally recognized standard, then these employers can be potentially held jointly liable for unfair labor practices committed only by one of them. This could include, for instance, an employee being able to sue a staffing agency as well as the corporation they work for in a claim related to unpaid wages.

Change in the Standard of Determination 

While there are different standards to determine Joint Employership, it is pertinent to discuss the one utilized by the National Labor Relations Board (NLRB) for businesses and employees under the National Labor Relations Act (NLRA), seeing as it has been recently altered.

Purported as the ‘Final Rule on the Joint Employer Standard’, the now altered standard seeks to narrow down the domain of the Joint Employer definition from that previously applicable, and has been in effect since April 27^th, 2020.

Departure from the Browning-Ferris Standard 

Prior to the Final Rule, the standard to be followed was laid down in Browning-Ferris Industries of California, Inc., a 2015 decision. Here, the NLRB built upon the previous standard and expanded it to include companies which had a degree of indirect control or potential to exercise the same, regardless of whether it was actually utilized or not.

Owing to the expansive ambit of the standard afforded by the NLRB, it became possible to hold more companies jointly and severally liable for claims under the NLRA as Joint Employers. While this was hailed by some for being a welcome change owing to the fact that it now allowed for entities such as franchisors to be held liable as Joint Employers for concerns relating to wages and working hours (for instance), it was criticized by others for bringing about several detrimental effects due to its scope being too wide.

Efforts were made by the NLRB to return to the pre-Browning standard through the courts, but in vain. Hence, the focus was shifted towards rulemaking and the “greater precision, clarity and detail” that it allows for.

Final Standard of Determination 

According to the NLRB, in order to be a Joint Employer under the Final Rule, a business must possess and exercise substantial, direct and immediate control over one or more of the essential terms and conditions of employment of another employer’s employees. These terms have been expounded upon under the rule itself.

Possess and Exercise – Unlike the Browning-Ferris standard, it must now be demonstrated that the employer who has the power to exert control over the employee has actually done so in the situation at hand. Mere possession of power will not suffice.

Essential Terms and Conditions – The Final Rule earmarks certain aspects of employment as the essential terms and conditions, and puts forth that only the control exerted over one or more of these aspects shall be taken into account to determine Joint Employership. Other factors apart from these cannot be used to prove a Joint Employer relationship.

The 8 essentials are: wages, benefits, hours of work, hiring, discharge, discipline, supervision and direction.

Substantial, Direct and Immediate Control – The degree of control is defined differently depending on which of the essential terms and conditions it is associated with.

For instance, in order to satisfy the requirements for disciplinary control, the potential Joint Employer must make an actual decision to suspend or disciple by other means; a mere misconduct report provided to the other employer will not suffice.

Another example is one relating to the hours of work. For the control to be seen as substantial, direct and immediate, the Joint Employer must set the work schedules, determine the standards for overtime work, etc. It is not enough if they merely establish operating hours or calendars.

However, regardless of which essential term or condition(s) is in question, it is important to show consistency. Control, as envisioned in the rule, must be exercised regularly, and not sporadically or in passing. The burden of proving that such conditions exist is placed on those who seek to prove that Joint Employership exists.

Changes to the Definition in Other Domains 

The Final Rule is limited only to liability determination for the purposes of the NLRB. Under Federal Law (the Fair Labor Standards Act, or FLSA), it is the United States Department of Labor (DOL) which is responsible for defining Joint Employership. While the DOL also sought to amend its definition and make it more attune to that of the NLRB, this move has been struck down by the judiciary.

The Equal Employment Opportunity Commission (EEOC) is expected to make similar changes as well, although this move is expected to be significantly delayed. If amended, the new standard of Joint Employment will govern federal discrimination claims.

Joint Employers and ICE Audits 

If Immigration and Customs Enforcement (ICE) conducts an audit of the employer, they tend to request the I-9 (employment eligibility verification) forms of all the individuals on the employer’s payroll, regardless of whether they are classified as employees or independent contractors. Therefore, in cases of Joint Employment, abundant caution must be exercised to ensure that I-9 forms are filled only when needed. In cases where an independent contractor is not subjected to the full extent of the aforementioned standards of determination, they are not required to complete an I-9 form. This could include situations where the independent contractors make their services available to the public beyond the employer, and where the independent contractor is liable only for the results of their labor and supplies their own equipment. It is important to make such a distinction, seeing as a completed I-9 form strongly indicates the presence of an employee status, and thus would have a bearing on whether someone is considered to be in a Joint Employment relationship.

If you have any questions regarding the incorporation process, please email me at chetana@legalcornerllp.com . I will be happy to set up a free consultation.

Equalisation Levy in India: The issues and the silence continues

By Akash Kumar Prasad, for Legal Corner LLP. Akash is a fifth year student of NALSAR University of Law and will be graduating in 2021.

The views expressed here are not to be considered as legal opinion. You may not rely on this article as legal advice. You should reach out to me (chetana@legalcornerllp.com) to get legal advice that is specific to your business needs. 

Equalisation Levy was introduced in India in 2016, with the goal of taxing the digital transactions i.e. the income accruing to foreign e-commerce companies from India. Digitalization is one of the most important developments since the Industrial Revolution, which has virtually changed the way in which businesses are carried out, across the globe. Some studies have assessed that the worldwide digital economy was worth $11.5 trillion in 2016 (Digital economy report–Value creation and capture: implications for developing countries) and for India, it was assessed to be $200 billion annually (Report of ministry of electronics and information technology-India’s Trillion Dollar Digital Opportunity, February 2019). However, it has been observed that taxation laws which are based on the conventional business models have been battling to keep pace with these changes. This has brought about many transactions completely getting away from the tax net. Hence, the need was felt to address the challenges presented by the digital economy.

A joint effort to address the requirement for tax reform is being taken by OECD/ G-20 since 2015-2016 under the “Inclusive Framework on BEPS”. Base Erosion and Profit Shifting (“BEPS”), as defined by the OECD, refers to tax planning strategies that exploit gaps and mismatches in tax rules to artificially shift profits to low or no-tax locations where there is little or no economic activity or to erode tax bases through deductible payments such as interest or royalties.

While the OECD is working towards creating consensus on an inclusive framework to address tax challenges from digitalization of the economy, several countries have introduced unilateral measures to tax the digital economy. In 2016, India introduced an Equalization Levy on revenue earned by non-residents from online advertising and related services. In 2019, the Indian Income tax law was amended to introduce the idea of ‘significant economic presence’. However, while passing the Finance Act 2020, the Indian government deferred its implementation, citing the absence of effective measures in the tax treaties. What came as astonishment to everyone was the introduction of an Equalisation Levy on sales of goods and services in India by overseas e-commerce operators, which was originally not part of the original Union Budget proposals of 2020-21. This levy has been effective from April 1, 2020 and in its current form, has wide-ranging coverage.

The Issues Involved

This levy was added as a last-minute amendment to the Finance Act day before the entire nation went into the first phase of lockdown in March. However, due to the rush in this decision-making, the provision enabling the levy was ambiguously worded and could cover several transactions which may be unintended. Moreover, it also covers transactions between two non-resident companies in case of sale of advertisement concerning Indian citizens or sale of data collected from Indian residents or if the IP address is located in India. The process transactions tracking on the basis of IP addresses may not be a viable option. With the use of bypass tools such as VPN, proxy sites etc, accurately tracking the transactions might prove to be a difficult task for the entities.

A study conducted by The Dialogue, a Delhi based think-tank proposes to rather look at the billing address or sales location to determine the residents. Moreover, the provision additionally doesn’t clear the tax base for the levy. It is unclear whether the tax has to be paid on the gross amount of the product or the commission received by the e-commerce entities.

There are also other issues such as the impact of this levy on inter-group or inter-company transactions and its interplay with the Digital Services Tax (DST) levied in other countries, which might lead to double taxation. However, due to the lack of clarifications, these issues still remain unaddressed.

Further, (Online Information Database Access and Retrieval Services) OIDAR tax and equalisation levy will create extra burden for the companies who may pass on these tax to the end consumers. Despite the fact that the levy targets non-resident companies, transferring of such cost to the Indian companies who utilize international platforms for their operations may come as an added burden to the Indian startups.

Conclusion

It is important that India maintains an investment friendly climate and such unilateral actions might impact it. Taxation of the digital economy is a sensitive and complicated matter. With multiple jurisdictions involved including India, there is a need for a multilateral consensus rather than a unilateral action and definitely not a rushed through levy such as the present one. There is an urgent requirement for issuing clarifications on the present levy in order to avoid taxing unintended business and narrow its scope.If you have any questions, please email me at chetana@legalcornerllp.com . I will be happy to set up a free consultation.

Equalisation Levy: Extra Territoriality an obstacle

By Akash Kumar Prasad, for Legal Corner LLP. Akash is a fifth year student of NALSAR University of Law and will be graduating in 2021.

The views expressed here are not to be considered as legal opinion. You may not rely on this article as legal advice. You should reach out to me (chetana@legalcornerllp.com) to get legal advice that is specific to your business needs. 

The Finance Act 2020 was passed on March 27, 2020 and created a lot of confusion as it amended the position of Equalisation Levy (EL), a type of digital service tax (DST). The Equalisation Levy was first introduced pursuant to the Finance Act, 2016 wherein a non-resident service provider, providing service to the resident are required to withhold at the rate of 6% of the gross amount of fee payable by the resident in lieu of such service. After the amendment of Equalisation Levy, the legal position related to it has changed drastically. Post amendment, the non-residential e-commerce operators are required to withhold at the rate of 2% of the gross amount received/receivable in lieu of the e-commerce supply and service. The Act has extra-territorial application as it attempts to tax the income earned from the advertisements (directed at Indian customers), or even accessed through Indian IP addresses and income earned from the sales of goods and services to anyone using any Indian IP address. Furthermore, EL has now been made applicable on both supplies of goods and services and on both B2B and B2C transactions. This article engages with the extra-territorial aspect of EL and aims to highlight both the practical and technical issues that arise/are being faced due to its implementation in its present state in India.

Technical difficulties that arise with the imposition of EL in its current state 

The first technical issue is the absence of a global tax collection system. In the context of a fragile global economy, the requirement of the same becomes necessary because any unilateral actions by different nations have the potential to impair the investments and economic growth on a global level. The Organisation for Economic Co-operation and Development (OECD) an intergovernmental economic organisation which deliberates the policies on digital taxation is still in the process of developing a common system and arriving at a consensus on taxable nexus and allocation of taxing rights.

Another issue is that the OECD has recommended the idea of ‘Significant Economic Presence’ (SEP) to be the basis of taxable nexus. Hence, it is highly possible that, a company’s permanent establishment, which is a taxable presence of the company outside its state of residence, may be in one country and the SEP in another country. Now, this is problematic because this gives rise to the issue of double taxation and hence defeats the purpose of Double Tax Avoidance Agreements (DTAAs) which aims to avoid international double taxation. The Akhilesh Ranjan Committee had also observed this as an inherent limitation of EL.

Furthermore, another technical concern is the lack of explanation to the technical terms such as ‘systematic, continuous soliciting’, and ‘users’ as mentioned in the explanation 2A (b) to S.9 of the amended Act. For instance, there is not much statutory guidance as to who would qualify as an Indian IP address user. It is not clear whether the threshold is merely visiting a website via an Indian IP address or that of browsing through links therein. Such lack of interpretation could be highly chaotic and lead to confusion among the litigators and the taxpayers alike.

 Practical difficulties that arise with the imposition of EL in its current state

The first practical concern is that the States normally charge taxes from non-resident entities that have no physical presence in their own territory, by taxing the domestic source of their revenue. The same had been followed until the scope was widened. The concern now is that the present EL regime aims to charge under S. 165A of Finance Act, 2016 directly and it is still not clear how the Indian government aims to achieve the same. There are high costs involved in tracking and storing the location of all the users and it is unlikely that the foreign businesses would want to incur such costs. Thus, it becomes difficult for such businesses to assess and pay the taxes owed.

Another issue is the absence of compliance and penalising mechanism in the event of non-payment of EL, by a non-resident entity. Although the Act provides for the attraction on unpaid taxes, penalisation and prosecution for non-compliance, such provisions aren’t enough to deter foreign businesses which have no tangible assets in India. Furthermore, there is an issue relating to the ‘revenue rule’ (general principle of international taxation) which states that the courts of a country can refuse enforcement of foreign revenue or tax laws. Thus, if any foreign country is unsatisfied with EL’s applicability on their domestic businesses, it may refuse EL’s enforcement on their resident businesses. It is highly possible that the foreign countries might raise an issue due to the above-mentioned concerns. For instance, the United States Trade Representatives raised an issue recently saying India’s DST (Digital Service Tax, referred as Equalisation Levy in India) is discriminatory, unreasonable, and burdens or restricts US commerce, and thus, is actionable under Section 301 (of Trade Act, 1974). The investigation, initiated by the USTR on June 2 last year, said that this tax explicitly exempts Indian companies and only ‘non-residents’ must pay the tax.

Conclusion

The objective and intention behind the expansion of the scope of EL is appreciative and it might have appeared to be effective to address the challenges of permanent establishment principle, but has surely caused confusion and significant predicaments as explained above. It seems that there was no proper deliberation and discussion before amending the position and hence the inevitable result is an adverse effect on free flow cross border transaction and India’s reputation as business-friendly jurisdiction. It is clear that the Indian government is aiming to further its revenue from all ways possible as it too has faced a heavy blow due to pandemic, but at the same time, there is an urgent requirement of issuing clarifications and supplementary rules to remove the surrounding ambiguity on the implementation of EL.

Union Budget 2021-22 – Impact on the Corporate Law

By Akash Kumar Prasad, for Legal Corner LLP. Akash is a fifth year student of NALSAR University of Law and will be graduating in 2021.

The views expressed here are not to be considered as legal opinion. You may not rely on this article as legal advice. You should reach out to me (chetana@legalcornerllp.com) to get legal advice that is specific to your business needs. 

On 1 February 2021, the Hon’ble Finance Minister presented the Union Budget 2021-22. While the Union Budget for the FY 2021-2022 was focused on infrastructure development, it also brought in several significant changes in the area of corporate laws. Changes have been proposed to decriminalize the LLP Act, 2008, increase in the threshold of the definition for small companies, introduction of an updated version of the MCA, changes in the OPC framework, increase in the FDI limits in an insurance company, etc.

Change in definition of ‘small company’

Section 2(85) of the CA, 2013 defines the term ‘small company’ as any company other than public company having paid up share capital not exceeding fifty lakh rupees and turnover not exceeding two crore rupees. It has been proposed in the Budget, to revise the definition of Small Companies by increasing the thresholds for paid up share capital from “not exceeding fifty lakhs rupees” to “not exceeding two crore rupees” and turnover from “not exceeding two crore” to “not exceeding twenty crore rupees”. The increase in thresholds will bring more than 2 lakh additional companies under the definition of ‘small company’ which can have a lower compliance burden including lower penalties for violations and lower filing requirements. Therefore, this proposal can surely be seen as an important drive for ease of doing business.

Changes to One Person (OPC) Company Network

Rule 6(1) of the Companies (Incorporation) Rules, 2014 provides for mandatory conversion of OPC into a Public Company or a Private Company as where the paid up share capital of an One Person Company exceeds fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees, it shall cease to be entitled to continue as a One Person Company. Now, by the Union Budget, Government has removed the limit of paid up share capital and turnover for conversion of OPC which is mostly done by the start-ups. Another important change for OPC has been proposed by relaxing the eligibility of person for such company. The criterion of 182 days has been reduced to 120 days to allow Non-Resident Indians to operate OPCs in India. These amendments with respect to OPC will give relief to these companies as the threshold limit of paid up share capital and turnover burdened the companies with the burden of conversion. Furthermore, it has also been proposed to allow Non-Resident Indians to operate OPCs in India and also some tax Incentives for start-up and Innovators like claiming tax holiday till March 31, 2022 has been proposed.

Decriminalization of offences under Limited Liability Act, 2008 (LLP Act)

Considering the fact that the Government has completed taking its steps for decriminalization of offences by amending the Companies Act, 2013, Finance Minister in her speech mentioned that it is now the time for decriminalization of the offences under the LLP Act. Having said that, it is important to note that the Government has already started taking tangible steps for giving effect to this proposal. The Company Law Committee (CLC) has presented/issued its Report of the Company Law Committee on Decriminalization of the Limited Liability Partnership Act, 2008 to the Ministry of Corporate Affairs on 4th January, 2021 for decriminalization of certain compoundable offences and shifting them to the In-house Adjudication Mechanism. The said Report proposes to decriminalize 12 offences and 1 penal provision has been proposed to be omitted. The motive behind the same is to de-clog the courts or the NCLTs thereby reducing their burden from non-serious matters. Further, the Report not only contains changes in the LLP Act for decriminalization of offences but also travels much beyond. Some of the other major changes in this regard consists of introduction of explicit provisions for issuance of secured NCDs by LLPs, restricting the merger of LLPs with companies, introduction of accounting standards for certain classes of LLPs, etc. Besides this, the Report also introduces changes in the definition of business of LLPS, alignment of the reference with that of the Companies Act, 2013 (CA, 2013) and much more.

Increased FDI in insurance companies

The main proposal for insurance companies in the Budget is to increase the permissible FDI limits such companies from the current 49% to 74%. Further, the said increased limit has been proposed with several safeguards with respect to ownership and control which includes: majority of Directors on the Board and Key Managerial Persons (KMP) to be resident of India; independent directors- at least 50% of the directors to be independent directors; and specified percentage of profits being retained as general reserve. Further, it is also imperative to mention about the IRDA (Indian Owned and Controlled Guidelines) which currently provides a limit of 49% of foreign shareholding in an Indian insurance company. Considering the aforesaid proposal, the said limit will be changed to reflect the increased limit.

Strengthening of NCLT framework

It has been proposed to strengthen the NCLT framework to ensure faster resolution of cases. In light of the new normal and increased emphasis on Digital India, e-Courts have been proposed to be implemented. Further, with a similar intent and to further provide an alternate mode of debt resolution, a separate framework is also proposed for the cases involving the MSMEs.

Securities Market Code

The Budget has proposed to consolidate the provisions of following laws relating to securities market into a rationalized single Code to be termed as “Securities Market Code”: SEBI Act 1992, Depositories Act 1996, Securities Contracts (Regulation) Act 1956, and Government Securities Act 2007.

Conclusion

Small company status offers relaxation from various provisions of CA 2013 and eases compliance burden on them. As mentioned in the budget speech, the increase in the threshold limit for a small company is likely to benefit 200,000 companies. Changes to the OPC regulatory framework offers motivation to grow without any restriction of paid-up capital and turnover, augmenting foreign capital and technology. Recognition of Start-up Company as a class of company for the purpose of fast track merger allows start-up option to explore restructuring without necessarily going to the National Company Law Tribunal (NCLT) for sanction. Overall, the thrust of budget on company matters aims at facilitating ease of doing business.

If you have any questions, please email me at chetana@legalcornerllp.com . I will be happy to set up a free consultation.