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Healthcare compliances and regulations in India

July 17, 2017
Download our brief on the compliances and regulations required to be followed by the healthcare industry in India. Healthcare-industry-compliances-and-regulations-in-India  

The structure of regulatory compliance in India

September 18, 2016
Compliance in India is broadly divided into three categories viz., central law, state law and local law. Central laws are enacted by the Central Government and are applicable to the whole country. Most of these laws are regulated by a regulatory authority, which has been given power by the Central Government. For example, the Securities and exchange Board of India (SEBI) regulates the capital market, the Reserve Bank of India (RBI) regulates the banking sector and the Food Safety and Standards Authority of India (FSSAI) regulates the food industry. State laws are different for each state in India. Depending upon the population, standard of living and revenue factor of a state, the State Government enacts its own rules and regulations applicable only to that particular state. Local laws are the rules framed by the Panchayats and Municipalities which look after the administration of an area. This law structure in India helps in regulating the law and order in the country. Central, state as well as local laws together bring harmony where compliance is concerned. This tripartite structure arises out of a constitutional system whereby all functions of governance were divided into three lists. The Central list consists of an array of items like defence, foreign affairs, internal security, railways, banking, and so on. These are administered by the  Centre and as of record, there are exactly 100 items on the Central list. The State list consists of items like police, public order, public health and sanitation, alcohol, and so on. These are administered by each individual state and there are currently 61 items on the State list. The Concurrent list consists of items like education, commerce, electricity and so on where both Centre and State can work independently and regulate affairs. This list has 52 items. In Concurrent items, if there is a conflict between state law and central law, central law prevails – an effect of India not being a Federal Republic.

GST: A Tax Revolution of 21st Century

August 24, 2016
The Goods and Service Tax Bill, officially known as “The Constitution (One Hundred and Twenty-Second Amendment) Bill, 2014”, seeks to amend the Constitution of India to facilitate the introduction of Goods and Services Tax (GST) in the country. The proposed amendments in the Constitution will confer powers both to the Parliament and the State legislatures to make laws for levying GST on the supply of goods and services. Download the paper now! GST_A Tax Revolution of 21st Century

How a compliance management system helps you comply with Companies Act 2013 and 2015, India

August 21, 2016
Compliance is a permanent and integral part of any business processes. Through an effective Compliance Management System, the business and its constituents learn about the compliance responsibilities individually and for the organisation as a whole. Compliance Management System should provide processes for: preventing non-compliances through mechanism such as Compliance risk Management framework, Policies, Processes & Procedures, Training and Communication, Code of Conduct & Ethics programme etc.; detecting non-compliances through mechanisms such as effective whistle blowing, compliance controls, compliance audits etc.; responding to non-compliance through remedial action, implementation of control tools for non-recurrence of such non-compliance etc. What is “COMPLIANCE RISK?” It is the current and prospective risk to earnings or capital arising from violations of, or non-conformance with, laws, rules, regulations, prescribed practices, internal policies, and procedures, or ethical standards. This risk exposes the institution to fines, civil money penalties, payment of damages, and the voiding of contracts. STATUTORY PROVISIONS CONCERNING COMPLIANCE  The Companies Act, 2013: “S.134(5)(f) the directors had devised proper systems to ensure compliance with the provisions of all applicable laws and that such systems were adequate and operating effectively.” “Sec. 205(1) to report to the Board about compliance with the provisions of this Act, the rules made thereunder and other applicable laws applicable to the Company.” SEBI (Listing Obligations and Disclosure Requirement), Regulations, 2015   Regulation 17(3) “The board of directors shall periodically review compliance reports pertaining to all laws applicable to the listed entity, prepared by the listed entity as well as steps taken by the listed entity to rectify instances of non-compliances”   Secretarial Audit Report – MR-3 Secretarial Auditor is to certify the compliance status: “I/We further report that there are adequate systems and processes in the Company commensurate with the size of the operations of the Company to monitor and ensure compliance with applicable laws, rules, regulations and guidelines.” COMPLIANCE MANAGEMENT SYSTEM (CMS) Compliance Management System (CMS) is to manage the compliance risk. Compliance management through systematic processes helps in achieving compliance of applicable laws. EXPECTATIONS FROM THE COMPLIANCE MANAGEMENT SYSTEM (CMS) The Compliance Management System (CMS) should achieve the following expectations: Centralised mechanism to ensure compliance. Effective co-ordination of functional units and the compliance department under the overall supervision of the Board of Directors. Incorporate changes in the existing applicable laws or introduction of new laws, into the compliance process in real time manner. Effective communication of the changes in the regulatory mandates to the applicable functional and other units in real time manner. Training on compliance requirements at regular intervals. Pro-active compliance risk management culture. Effective monitoring and control systems. Mechanisms to prevent, detect, report and to respond to non-compliances. Visibility of compliance dashboard. SUMMARY The compliance dashboard helps in simplifying the compliance obligation, effectively managing the compliance risk, facilitating board oversight, effective co-ordination of functional units. The compliance dashboard should alert the company in the risk prone areas or non-compliances. It should display the compliance obligations on the compliance calendar or dashboard. Before the date of regulatory mandate, an

Highlights of the Real Estate (Regulation and Development) Act 2016

April 14, 2016
The Real Estate (Regulation and Development) Act, 2016 has received Presidential assent. The Act is seen as a significant move towards ensuring consumer protection and standardising business practices and transactions in the real estate sector. The Real Estate (Regulation and Development) Act, 2016 (Act), passed by the Indian parliament in its current session, has received the assent of the President of India on 25 March 2016. Different provisions of the Act may be brought into force on different dates as may be specified by the Indian government. First introduced in 2013, the Act has been passed with the intent to bring transparency and safety in the market for consumers of residential and commercial projects by introducing a sectoral regulatory mechanism. The Act seeks to address distortions in the real estate market due to the asymmetrical relationship between real estate developers and consumers. Preventing structural abuse of dominance in a sector that has been rated as the second lowest in terms of consumer satisfaction is also a key objective of this legislation. ANALYSIS Builders will have to work within the four corners of the laws. 70% of the money deposited by buyers as advances will be kept in a separate bank account and the funds can be utilised by the builders for meeting out cost of land plus construction costs. The diversion of funds will not be allowed and it will ensure timely completion of the projects. In case the land cost has already been paid, then the money can also be withdrawn up to that extent. The Real Estate Regulatory Authority will be set up for ensuring time bound project approvals and clearances. It will speed up the process of grievances redressal. With the establishment of a regulatory mechanism, domestic and international investment will be increased, thereby resulting in decrease in cost of borrowing. The builders will be barred from pre launching of any project till the registration is approved by the regulatory authorities. That means no funds can be diverted to any project until all the registration formalities are complied with.

The impact of Companies Act 2013 on compliances in India

April 14, 2016
Compliance is a permanent and integral part of any business processes. Through an effective Compliance Management System, the business and its constituents learn about the compliance responsibilities individually and for the organisation as a whole. Compliance Management System should provide processes for: SUMMARY The compliance dashboard helps in simplifying the compliance obligation, effectively managing the compliance risk, facilitating board oversight, effective co-ordination of functional units. The compliance dashboard should alert the company in the risk prone areas or non-compliances. It should display the compliance obligations on the compliance calendar or dashboard. Before the date of regulatory mandate, an e-mail should be sent to the compliance owner. The Compliance owner should send the response once compliance is done.

Liabilities of a director in Indian companies

April 14, 2016
Directors can be held liable both jointly and collectively, for any and every act, commission or omission which is prejudicial to the interests of the company and violates any of the duties to be discharged by them.   A. Director’s personal liability As a general rule, since the company and its Director are separate entities, the Director has no personal liability on behalf of the company. However, under certain circumstances, a Director may be held liable on behalf of the company. These circumstances are: Liability of co-director’s defaults:   A director is bound by the maxim delegatus non-potest delegare. Shareholders appoint him because of their faith in his skill, competence and integrity and they may not have the same faith in another person. It was held in the case of J.K. Industries v. Chief Inspector of Factories that the directors being in control of the company’s affairs cannot get rid of their managerial responsibility by nominating a person as the occupier of the factory. The rule is, however, not inflexible. The Act or Articles of Association of the Company may make a delegation of functions to the extent to which it is authorized. Also, there are certain duties, which may, having regard to the exigencies of business, properly be left to some other officials. A proper degree of delegation and division of responsibility is permissible but not a total abrogation of responsibility. A director might be in breach of duty if he left to others the matters to which the Board as a whole had to take responsibility. Directors are responsible for the management of the company and cannot divest themselves of their responsibility by delegating the whole management to agent and abstaining from all enquiries. If the latter proves unfaithful, the liability is that of the directors as if they themselves had been unfaithful.   B. Criminal Liability   Dishonoured Cheques   The Director signing a cheque which is dishonoured so as to constitute an offence under the Negotiable Instruments Act, 1881, can be prosecuted along with the company. C. Lifting of Corporate Veil   A company is an independent entity and, as a general rule, the Director of the company is not liable for any offence or, breach or liability of the company. However, in certain cases, the common law doctrine of ‘lifting the corporate veil’ is utilized to impose penalty on the person, or persons, controlling in reality the actions of the company (such as, Directors) and certain statutes impose liability on such person or persons in charge of, or responsible to, the company for the conduct of its business.   Individual Membership Rights As a general rule, personal rights per se are not to be enforced through derivative actions; however, some exceptions have been recognized. These exceptions often arise in cases of rights that have been conferred upon the shareholders by the Companies Act itself or the respective Articles (commonly known as “individual membership rights”). For example, the right to vote, the right to have one’s
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