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India’s Ministry of Corporate Affairs (MCA) is having a busy year. After cracking down on shell companies and LLPs, they have now introduced more stringent KYC norms for directors and designated partners of LLPs in India. The new E-Form DIR-3 KYC is meant to be filed annually and is meant to track the identity of directors in Indian companies and LLPs. The idea behind this could be to have greater transparency and accountability for directors as well as to put measures into place to deal with non-compliance even in the future.
Below we have set out the salient features of this new disclosure requirement in a Q&A format.
Any individual, who is a partner/designated partner in a Limited Liability Partnership (LLP) or who is a Director of a company, holding a valid DIN allotted on or before 31st March 2018.
For those who have received their DIN after 1 April 2018, the rule is applicable however the deadline for filing is 30 April 2019.
The compliance dates are the same for resident and overseas directors.
The Know Your Client (“KYC”) form is a standard form used by banks and investment firms, however the term “KYC” has slowly expanded into multiple areas unrelated to banking. Generally the purpose of a KYC form is for the recipient (bank, investment firm, government, etc.) to know key information about their clients such as unique identifiers, communication addresses, risk tolerance, financial position, etc.
In the same manner, MCA’s DIR-3 KYC form requires certain details about any person holding a DIN. As per form DIR-3 KYC notified by MCA, the details that need to be provided include:
The form must be signed by the individual using their valid Digital Signature Certificate (DSC).
The following documents need to be attached:
In case a director fails to provide his details in E-Form DIR-3 KYC within the stipulated time, the director’s DIN will be deactivated and the MCA21 system will mark all approved DINs (allotted on or before 31 March 2018) against which DIR-3 KYC form has not been filed as ‘Deactivated’. The deactivated DIN shall be reactivated only after filing of E-form DIR-3 KYC along with prescribed fees as prescribed under Companies (Registration Offices and Fees) Rules, 2014. The late filing penalty is Rs. 5,000 from 1 September, 2018.
More importantly, while a DIN remains inactive, the director/partner will be unable to sign any compliance documents on behalf of any company/LLP. As most companies in India finalise their accounts and taxes in September, this could create substantial difficulties and non-compliances for companies whose directors have not submitted the DIR-3 KYC.
For all foreign nationals who have a DIN, their passport number is to be mentioned in the form compulsorily. Passport details are not compulsory for Indian residents but they must provide them if they have a passport.
In case of foreign nationals, the supporting documents also need to be attested by the authority prescribed. These documents are:
These supporting documents should be attested by the Consulate of the Indian Embassy or a foreign public notary.
In case of proofs which are in languages other than Hindi / English, the proofs should be translated into English or by a professional translator carrying his details (name, signature, address) and seal.
In the case of foreign nationals, translation done by a notary of home country is also acceptable.
The director’s name in the form, in the DSC and on their PAN card needs to match. If not, the documents will need to be modified.
Mobile number and email address need to be the director’s personal ones only, i.e. a generic office email / number cannot be used.
The form must be certified by a practising professional, i.e. a Chartered Accountant, Cost Accountant or Company Secretary in whole-time practice.
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The notification published by the MCA can be found here: Companies (Appointment and Qualification of Directors) 4th Amendment Rules, 2018
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To know more about the requirements of filing the E-Form DIR-3 KYC, please write to us at info@asitmehtaassociates.com