- Deposits
As per the Companies Act, 2013, a deposit is any money that is received, either by means of a deposit or a loan or any other form as may be prescribed, but does not include certain classes of transactions. The provisions concerning deposits are covered under Sections 73 to 76 of the Companies Act, 2013, which are generally read with the prescribed Rules.
Exclusions: Any amount,
- Received from the Central Government or a State Government, or any such source where the repayment will be guaranteed by the State or the Centre.
- Received from foreign banks or international banks, foreign governments, multilateral financial institutions subject to the provisions of FEMA, 1999.
- Received by way of financial assistance or loan from Public Financial Institutions notified by the Central Government or Scheduled Banks or Insurance Companies.
- Received as a loan or facility from any banking company or the State Bank of India or any of its subsidiaries.
- Received by a company from any other company.
- Received against the issue of commercial paper or any other instruments issued in accordance with the RBI guidelines.
- Received against an offer made towards the subscription of securities, by way of share application money or advance towards allotment. The money shall be considered as a deposit provided:- a) The company fails to allot such securities within 60 days. b) And after the expiry of the aforesaid 60 days, the money that is received has still not been refunded in the next 15 days.
- Received from an employee of the company not exceeding his annual salary in the nature of non-interest bearing security deposit.
- Received amount that is non-interest bearing in nature or held in trust.
- Received from a director who provides a declaration stating that the amount is not given out of borrowings or a loan from any person.
- Raised by way of issue of debentures or bonds secured by a first charge or any other way referred to in Schedule III of the Act excluding intangible assets of the company or bonds / debentures compulsorily convertible into shares of the company within five years. If such bonds or debentures are secured by the charge of any assets referred to in Schedule III of the Act excluding intangible assets, the amount of such bonds or debentures shall not exceed the market value of such assets as assessed by a registered valuer;
- Brought in by the promoters as a loan, unsecured in nature, in pursuance with the stipulation of bank or lending financial institution.
- Accepted by Nidhi Company as per the provisions of Sec 406 of the Act.
- Received by way of subscription in respect of a chit under the Chit Fund Act, 1982.
- Received in the course of, or for the purposes of, the business of the company– (a) as an advance for the supply of goods or provision of services accounted for in any manner whatsoever provided that such advance is appropriated against supply of goods or provision of services within a period of three hundred and sixty five days from the date of acceptance of such advance: However, in case of any advance which is subject matter of any legal proceedings before any court of law, the said time limit of three hundred and sixty five days shall not apply.
(b) as advance, accounted for in any manner whatsoever, received in connection with consideration for an immovable property under an agreement or arrangement, provided that such advance is adjusted against such property in accordance with the terms of agreement or arrangement;
(c) as security deposit for the performance of the contract for supply of goods or provision of services; (d) as advance received under long term projects for supply of capital goods except those covered under item (b) above;
(e) as an advance towards consideration for providing future services in the form of a warranty or maintenance contract as per written agreement or arrangement, if the period for providing such services does not exceed the period prevalent as per common business practice or five years, from the date of acceptance of such service whichever is less;
(f) as an advance received and as allowed by any sectoral regulator or in accordance with directions of Central or State Government;
(g) as an advance for subscription towards publication, whether in print or in electronic to be adjusted against receipt of such publications;
- Received by the company under any collective investment scheme in compliance with regulations framed by the Securities and Exchange Board of India;
- an amount of twenty-five lakh rupees or more received by a start-up company, by way of a convertible note (convertible into equity shares or repayable within a period not exceeding ten years from the date of issue) in a single tranche, from a person.
- Received by a company from Alternate Investment Funds, Domestic Venture Capital Funds, Infrastructure Investment Trusts, Real Estate Investment Trusts 2 and Mutual Funds registered with the Securities and Exchange Board of India in accordance with regulations made by it.
- Applicability:
Provisions regarding the acceptance of deposits that apply to all companies barring a few:-
- Any banking company.
- Non-Banking Financial Companies as per the RBI Act 1934.
- Any other company notified by the Central Government in consultation with the RBI
- PENALTIES:
Where the company fails to repay the deposit money within the stipulated time or such extended period granted by the Tribunal, the company will be punishable with a fine in addition to the repayment of the deposits as specified below –
| PARTICULARS | FINE |
| The company | Rs. 1 crore – Rs. 10 crores |
| Every officer found in default | a) Imprisonment that may extend to 7 year b) Or Rs. 25 lakh – Rs. 2 crore c) Or both |
Where the company fails to repay the deposit money within the stipulated time or such extended period granted by the Tribunal, and it is proved that the deposits were obtained for fraudulent purposes, every officer found guilty will be held personally responsible and be punishable under Section 447 of the Companies Act, 2013. Any suits or proceedings shall be filed by anyone who has suffered damage due to the failure of the company to repay the deposits.
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