Blog Archives

Core Investment Company

 This Concept was originated in order to safeguard NBFCs which are formed for group investments from stringent RBI procedures. Core Investment Companies, (CIC) are those companies which have their assets predominantly as investments in shares for holding stake in group companies but not for trading, and also do not carry on any other financial activity. […]

Auditing Misconduct in India: Diversion of Law by Multi-national Accounting Firms.

Multi-National Accounting Firms (MAFs) are corporate persons who dominate the auditing market in the World. The Big Four Accounting firms in India – Deloitte, Ernst and Young, PricewaterhouseCoopers and KPMG, bags half the business from India’s top 500 listed firms and all the fortune 100 firms except one[1]. The billings of top 6 MAFs is more than the combined billings of the 40 top Indian Auditing firms.[2] They provide ruthless competition to the Indian firms as they maintain global quality standards and indulge in the advertisement of their services. The purpose of this blog is to illustrate how MAFs operate in India by circumventing the Indian legal framework and in breach of the code of ethics framed for Chartered Accountants of India.

The emergence of MAFs in India

MAFs sought permission from RBI to operate and render auditing services in India. But RBI vide its letter dated 23, March 2004, refused to grant such permission to MAFs. Due to such denial of permission, MAFs approached Foreign Investment Promotion Board to provide ‘consultancy’ services in India. After seeking the permission, MAFs transgress the permission granted to them and provide accounting, auditing and bookkeeping services in the name of ‘consultancy services’.

Furthermore, Regulation 3 of Foreign Exchange Management (Investment in firm of Proprietary Concern in India) Regulations, 2000 lays down that a person resident outside India other than NRIs/PIO are required to apply and seek approval of RBI for making investment by way of contribution to the capital of a firm or a proprietary concern or any association of persons in India.[3] As MAFs operate in India through their Indian affiliates, they circumvent the prohibition imposed on them by Foreign Exchange Management Act. MAFs take a circuitous route to invest in the Indian CA firms by remitting funds to the partners of these firms and recording them in the name of  ‘interest-free loans’ and ‘grant to partners’. In this manner, they acquire control of the Indian CA firms and carry out their business of accounting in their name. The expert committee by ICAI submitted a report titled ‘Report on Operations of Multinational Network Accounting Firms in India’, acknowledging that the government policies do not permit FDI in the field of accounting, auditing, taxation and bookkeeping services, but MAFs circumvent the legal framework to bypass this prohibition. [4]

Professional misconduct by MAFs

Apart from flouting the FEMA guidelines, FDI policies and RBI circulars, it appears that MAFs also indulge in brand building exercise and advertisements which amounts to professional misconduct for CAs in practice.  As per item (7) of Part 1 of the First Schedule of The Chartered Accountants Act, 1949 advertisement of professional services by a CA is not allowed anywhere other than their professional documents and visiting cards of the firm. The prohibition on the advertisement is based on a well-thought out background as the advertisement is harmful to the essence of the profession. The public should not be guided by self-proclaimed abilities but by the fundamental and underlying quality of service.

Indian CA firms by affiliating with the MAFs and using identical brand name indulges in brand building exercise, which gives an impression to the public that the Indian CA firms are not independent and have affiliations with MAFs. The visiting card circulated by Indian CA firms also bears the name identical to the MAFs. In order to abide by the Code of Ethics, it is imperative that the visiting card shows separation of identity. Auditing cannot be carried in an unprofessional way and in breach of the Code of Ethics of the profession. Publicity and advertisement is harmful to the objective of the profession as the users should rely on the real worth of services.[5] It further vitiates the level playing field with other Indian CA firms which follow the code of ethics and do not indulge in fee sharing and advertisement of their services.

Financial Misconduct by MAFs

Item (3) of Part 1 of First Schedule of the CA Act prohibits a member of the institute from accepting any part of the profits of the professional work, share, brokerage or commission from a non-member unless such person has certain prescribed qualification.[6] The MAFs provide funding to its Indian Affiliates in the name of ‘interest-free loans’ and grants for enhancement of skills. These financial aids violate the prohibition imposed on the members of the ICAI to receive grants from entities not registered with ICAI.

Despite the prohibition imposed by §.47(2) (h) of FEMA[7] on investments without RBI approval which prohibits investment by a person who is resident outside India, PwC India received Rs. 240 Crores in the Financial Year 2010-11.[8] Additionally, PwC Kolkata received a grant of 41 Cr. for acquiring another Mumbai based audit firm, Dalal & Shah by giving interest-free loans to four of its partners. It may be noted that the remittance which is claimed to be interest-free loans to partners squarely falls within the purview of investments. The Indian CA firms by sharing the same infrastructure and brand name with the MAFs cannot deny their relationship with the foreign entity. As a result, the actions of MAFs and their Indian affiliates are in contravention of the CA Act, FDI Policies and FEMA Regulations.

Conclusion

The paper narrated the circuitous approach of MAFs to operate in India in clear breach of Foreign Investment Policies, FEMA Act, RBI Circulars, The Chartered Accountancy Act and Code of Ethics for CAs. The MAFs being largely unregulated vitiates the level playing field with other Indian CA firms.

In order to curb audit malpractices and misconduct, the legislature proposed the addition of §.132 in the Companies Act, 2013 and recommended constitution of National Financial Reporting Authority (NFRA) to create an additional layer of supervision over and above ICAI, but limited its jurisdiction to members registered with ICAI. The newly added §.132 lays down that NFRA will have the power to scrutinize only registered members of ICAI. The impediment imposed on the jurisdiction of NFRA again leaves the MAFs unregulated as they never register themselves with ICAI.

Even the FEMA authorities have refrained from taking any action against the MAFs despite knowing the roundabout way taken by MAFs to invest in Indian CA firms, without RBI approval. It’s high time for the government and regulatory bodies to restrict the flagrant violation of laws by MAFs, especially when the apex court of the country has recognized the malpractice in S. Sukumar vs. The Secretary, Institute of Chartered Accountants of India.

 

[1]  The Big 4 Accounting Firms, Big 4 Career Lab, https://big4careerlab.com/big-4-accounting-firms/ (Accessed May 22, 2018)

[2] Bad Times For Indian Auditors, Dept. of Accountancy, (Sept. 2016),  http://nmcollege.in/ebulletin/2016/Accountancy/September.pdf (Accessed May 23, 2018)

[3] Ministry of Commerce & Industry Department of Industrial Policy & Promotion (2010). Consolidated FDI Policy. Clause 3 of §.3.3.2, pp.5, 109. Available on http://dipp.nic.in/sites/default/files/FDI_Circular_02of2010%20%206_0.pdf.

[4] The Institute of Chartered Accountants of India (2011). Report on Operations of Multinational Network Accounting Firms in India. New Delhi, pp. 7, Clause 4.9

[5] S. Sukumar vs. The Secretary, Institute of Chartered Accountants of India and Ors., 2018(3)SCALE433, (India), ¶5

[6] Item Nos. 3, Part 1, First Schedule, the Chartered Accountants Act, 1949, No. 38, Acts of Parliament.

[7] 47. (1) The Reserve Bank may, by notification, make regulations to carry out the provisions of this Act and the rules made thereunder.

(2) Without prejudice to the generality of the foregoing power, such regulations may provide for,—

(h) any other matter which is required to be, or maybe, specified.

[8] Supra 5, ¶ 10.

Opening Of Liaison Office In India By Foreign Entity

Liaison Office: Foreign Investor or Foreign companies can open a liaison office in India for promoting and facilitating the parent company business activities and can act as best communication channel between the foreign parent company and Indian company. With the liaison office, the foreign parent company will get help in entering into Indian market and […]

Foreign Venture Capital Investors And Related Regulations

Venture Capital is a type of seed funding in which investment is made at the initial growing stage of ventures. It is a financing to small and start-up ventures, which has high risk and potential to develop near future. The Venture Capital Investors are generally put their funds in those companies, which are with new ideas, innovations and having potential of high growth with inherent uncertainties.

Analysis of Single Master Form and The Firms

In alignment with the Indian Government’s continuing efforts to bolster foreign investment and ease of doing business in India, the Reserve Bank of India (RBI) issued an important circular A.P. (DIR Series) Circular No.30 on 7th June, 2018 with the aim of simplifying reporting under the Foreign Exchange and Management Act, 1999 (FEMA).

Foreign investment in India – Reporting in Single Master Form- An analysis

The Reserve Bank of India (RBI’), with the objective of integrating the various reporting structures of foreign investment in India, has introduced a Single Master Form (SMF). The SMF would be required to be filed online and would provide a facility for reporting total foreign investment in an Indian entity.

Reporting in Single Master Form for Foreign Investment In India

RBI through its Master Circular dated June 7th, 2018 has introduced Single Master Form (SMF) for all types of reporting in respect to Foreign Investment In India. The SMF would be filed online. SMF would provide a facility for reporting total foreign investment in an Indian entity as also investment by persons resident outside India […]

Single master form – Foreign investment in India

Foreign Investment in India – Reporting in Single Master Form (SMF) As announced in the First Bi-monthly Monetary Policy Review dated April 5, 2018, Reserve Bank, with the objective of integrating the extant reporting structures of various types of foreign investment in India, will introduce a Single Master Form (SMF). The SMF would be filed online. […]

Full day Seminar on FEMA, Cross Border M&A and Foreign Investments

Dear Professional Colleague,

Greetings from eMinds Legal !

We are writing to you today to invite you for an upcoming full day seminar on FEMA, Foreign Investments and Cross Border Merger Regulations being organised by Corpkonnect in association with eMinds Legal, a boutique Corporate Law Firm.

28th June: Mumbai (Hotel Goldfinch) & Gurgaon (Hotel Ramada)

29th June: Bangalore (The Grand Magrath)  

Timing: 09:30 AM – 05:30 PM

Introduction:

On 7 November 2017, the Reserve Bank of India (RBI) issued Foreign Exchange Management (Transfer and Issue of Security by a Person Resident Outside India) Regulations, 2017 (New FEMA 20) to replace the Foreign Exchange Management (Transfer and Issue of Security by a Person Resident Outside India) Regulations, 2000 (Old FEMA 20) and the Foreign Exchange Management (Investments in Firms or Proprietary concern in India) Regulations, 2000 (FEMA 24).  New FEMA 20 consolidates Old FEMA 20 and FEMA 24. The New FEMA 20 eliminates several redundancies and clarifies a plethora of interpretational issues that plagued old regime.

Also this month the Reserve Bank of India (RBI) has issued two important circulars with the aim of simplifying reporting under the Foreign Exchange and Management Act, 1999 (FEMA).

Workshop Agenda:
Technical Session 1: FDI Policy – Latest Changes and Emerging Issues

  • Regulatory framework on Inbound Foreign Investments
  • Overall view of FDI Policy 2018 – Latest Changes
  • New reporting guidelines
  • Transfer of Shares & Critical Issues
  • FEMA Notification No. 20(R)/ 2017-RB – Latest Changes

Technical Session 2:

  • ODI regulations
  • Investment Routes & related regulatory framework
  • Liberalized Remittance Scheme – Latest Developments

Technical Session 3: The New FEMA Cross Border Merger Regulations

  • Background
  • Key Provisions of the new regulations
  • Provisions related to inbound merger
  • Provisions related to outbound merger
  • Hits & Misses of the new regulations
  • Challenged merging entities may face under the new framework

Technical Session 4:

  • External Commercial Borrowings (ECB) Policy
  • ECB Rationalisation and Liberalisation

Recent FPI Related Changes:

  • Latest change in the legal framework of FPI in debt securities
  • FPI Investments – Strict Compliance for Listed entities

Workshop Experts in Mumbai

  • Jay Gandhi – Partner, Shardul Amarchand Mangaldas
  • Anish Mashruwala – Partner, J. Sagar Associates
  • Rajesh Begur – Managing Partner, ARA Law
  • Sharanya Ranga – Partner, Advaya Legal

Workshop Experts in Gurgaon:

  • Arpita Garg – Partner, J. Sagar Associates
  • Prakriti Jaiswal – Principal Associate, J. Sagar Associates
  • Shinoj Koshy – Partner, Luthra & Luthra
  • Abhijeet Das – Principal Associate, Vaish Associates

Registration Fee & Registration Details:

Registration Fee: INR 8,500 + 18% GST Per Delegate

Discount: 10% Discount on 2 or more delegates

The fees would include Course Material, Participation Certificate and Lunch & Refreshments at the Hotel

For registrations CLICK HERE

For further queries, please contact
BIPLAB SENGUPTA
Mob No: 8130826342

Workshop on FEMA, Foreign Investments and Cross Border Merger Regulations

Dear Professional Colleague,

Greetings from eMinds Legal !

We are writing to you today to invite you for an upcoming full day seminar on FEMA, Foreign Investments and Cross Border Merger Regulations being organised by Corpkonnect in association with eMinds Legal, a boutique Corporate Law Firm.

28th June: Mumbai (Hotel Goldfinch) & Gurgaon (Hotel Ramada)

29th June: Bangalore (The Grand Magrath)  & Chennai (Hotel Clarion President) 

Timing: 09:30 AM – 05:30 PM

Workshop Agenda:

Technical Session 1: FDI Policy – Latest Changes and Emerging Issues

  • Regulatory framework on Inbound Foreign Investments
  • Overall view of FDI Policy 2018 – Latest Changes
  • Master Directions on Foreign Investments and Reporting
  • Transfer of Shares & Critical Issues
  • FEMA Notification No. 20(R)/ 2017-RB – Latest Changes

Technical Session 2:

  • ODI regulations
  • Investment Routes & related regulatory framework
  • Liberalized Remittance Scheme – Latest Developments

Technical Session 3: The New FEMA Cross Border Merger Regulations

  • Background
  • Key Provisions of the new regulations
  • Provisions related to inbound merger
  • Provisions related to outbound merger
  • Hits & Misses of the new regulations
  • Challenged merging entities may face under the new framework

Technical Session 4:

  • External Commercial Borrowings (ECB) Policy
  • ECB Rationalisation and Liberalisation

Recent FPI Related Changes:

  • Latest change in the legal framework of FPI in debt securities
  • FPI Investments – Strict Compliance for Listed entities

Workshop Experts in Mumbai

  • Jay Gandhi – Partner, Shardul Amarchand Mangaldas
  • Anish Mashruwala – Partner, J. Sagar Associates
  • Rajesh Begur – Managing Partner, ARA Law
  • 1 More experts joining soon…

Workshop Experts in Gurgaon:

  • Arpita Garg – Partner, J. Sagar Associates
  • Shinoj Koshy – Partner, Luthra & Luthra
  • Abhijeet Das – Principal Associate, Vaish Associates
  • 1 More experts joining soon…

Registration Fee & Registration Details:

Registration Fee: INR 8,500 + 18% GST Per Delegate

Discount: 10% Discount on 2 or more delegates

The fees would include Course Material, Participation Certificate and Lunch & Refreshments at the Hotel

For registrations or any other information please contact

BIPLAB SENGUPTA
Mob No: 8130826342
Email: [email protected]