SPECIFIC PROVISIONS UNDER THE COMPANIES ACT 2013 WHICH REQUIRE VALUATION REPORT FROM A REGISTERED VALUER

SPECIFIC PROVISIONS WHICH REQUIRE VALUATION REPORT FROM A REGISTERED VALUER

WHO CAN BE A REGISTERED VALUER?

A person, who aspire to be a registered valuer, is required to possess certain qualifications and experience, obtain membership of a recognized organization of valuers and get itself registered as a valuer with IBBI.

The RV Rules sets out in detail the eligibility criteria, educational qualifications (degree), experience, and procedure for registration of a valuer. However, such valuer will not undertake valuation of any assets in which he has a direct or indirect interest or becomes so interested at any time during a period of three years prior to his appointment as valuer or three years after the valuation of assets was conducted by him.

DIFFERENT QUALIFICATIONS OF REGISTERED VALUERS FOR DIFFERENT CLASS OF ASSETS?

For valuation of land & building, a registered valuer must be a graduate or post graduate in Civil engineering, architecture or town planning with minimum experience of 3 to 5 years

For valuation of plant & machinery, a registered valuer must be a graduate or post graduate in Electrical or Mechanic Engineering with minimum experience of 3 to 5 years

For valuation of securities or financial assets, a person must be a member of ICAI, ICSI or Institute of Cost Accountants of India or an MBA with specialization in Finance, with minimum experience of 3 years in the discipline after completing graduation

The registered valuer is responsible for any negligence or misconduct leading to disciplinary action by IBBI and regulatory penalties and fines.

PART-1

SPECIFIC PROVISIONS UNDER THE COMPANIES ACT, 2013 WHICH REQUIRE VALUATION REPORT FROM A REGISTERED VALUER

  1. Section 62 (1) (C) read along with Rule13 of the Companies (Share Capital and Debentures) Rules, 2014:- (Further issue of Shares) :

When the Company proposes to further issue the shares of Company to any person bypassing the Special Resolution, on a preferential basis the price for such preferential allotment shall be determined by registered valuer only.

Issue of Shares /convertible securities on a preferential basis by the unlisted company for cash or for consideration other than cash Whereat any time, a company having a share capital proposes to increase its subscribed capital by the issue of further shares, such shares shall be offered to any persons, if it is authorized by a special resolution, whether or not those persons include the persons referred to in clause 62 (a) or clause 62 (b), either for cash or for a consideration other than cash, if the price of such shares is determined by the valuation report of a registered valuer subject to such conditions as may be prescribed.

  1. 177 (4) (vi) Valuation of Assets with reference of Audit Committee:- Valuation of undertakings or assets of the company, when it is necessary, it has to be done by registered valuer only.

Every Audit Committee shall act in accordance with the terms of reference specified in writing by the Board which shall, inter alia, include, — valuation of undertakings or assets of the company, wherever it is necessary.

  1. Section 192(2) Valuation of Assets acquired for a Consideration besides Cash: – If a director of Company subsidiary or associate company or a person connected wants to acquire or acquires assets for consideration besides cash, from the company, then the value of the assets involved must be calculated by a registered valuer.

Non-cash transactions with Directors for acquiring assets from the company

Restriction on non-cash transactions involving directors. The notice for approval of the resolution by the company or holding company in the general meeting under subsection 192 (1) shall include the particulars of the arrangement along with the value of the assets involved in such arrangement duly calculated by a registered valuer.

  1. Section 230(2)(c)(v) and Section 230(3):- Valuation of shares, property and assets of the Company in need of compromise or arrangement.

A valuation report regarding shares, assets or property, tangible and intangible, movable and immovable of the company, made by a Registered Valuer in case of a compromise or arrangement between members (such as in mergers) or with creditors (such as in corporate debt restructuring. That particular valuation report is required to be shared with Notice of creditors/ shareholders meeting– Under the scheme of compromise/Arrangement.

Power to compromise or make arrangements with creditors and members. In case of

  1. a) a compromise or arrangement between members (such as in mergers or amalgamations)
    b) or with creditors (such as in corporate debt restructuring),

A valuation report in respect of shares, property or assets, tangible and intangible, movable and immovable of the company, or a swap ratio report by a Registered Valuer is required.

  1. 230(3) Power to compromise or make arrangements with creditors and members.

In case of

  1. a) a compromise or arrangement between members (such as in mergers or amalgamations)
    b) or with creditors (such as in corporate debt restructuring),

A valuation report in respect of shares, property or assets, tangible and intangible, movable and immovable of the company, or a swap ratio report by a Registered Valuer is required.

  1. Section 232 (2)(d) and Section 232 (3)(h)(B) Valuation of Assets in case of the Merger and Amalgamation:- The report of the Registered Valuer with regard to valuation has to be circulated for the meeting of creditors and members. The Valuation report is made by the tribunal for exit opportunity to the shareholders of transferor Company Under the scheme of Compromise/Arrangement in case the Transferor company is Listed Company and the Transferee-company is an unlisted Company.

Merger and amalgamation of companies. In case of

  1. a) a compromise or arrangement between members (such as in mergers or amalgamations)
    b) or with creditors (such as in corporate debt restructuring),

A valuation report in respect of shares, property or assets, tangible and intangible, movable and immovable of the company, or a swap ratio report by a Registered Valuer is required.

  1. 232(3)(h) Merger and amalgamation of companies.

In case of a) a compromise or arrangement between members (such as in mergers or amalgamations)
b) or with creditors (such as in corporate debt restructuring),

A valuation report in respect of shares, property or assets, tangible and intangible, movable and immovable of the company, or a swap ratio report by a Registered Valuer is required.

  1. Section 236(2) Valuations of Shares in case of purchase of Minority Shareholding:- The acquirer, person or group of persons under sub-section (1) must offer to the minority shareholders of the company for buying the equity shares held by the shareholders at a price determined on the basis of valuation by the registered valuer.
  2. 247 Valuation by Registered Valuers.

(1)Where a valuation is required to be made in respect of any property, stocks, shares, debentures, securities or goodwill or any other assets (herein referred to as the assets) or net worth of a company or its liabilities under the provision of this Act, it shall be valued by 1 [a person having such qualifications and experience and registered as a valuer in such manner, on such terms and conditions as may be prescribed]  and appointed by the audit committee or in its absence by the Board of Directors of that company.

(2) The valuer appointed under sub-section (1) shall,—

(a)make an impartial, true, and fair valuation of any assets which may be required to be valued;

(b)exercise due diligence while performing the functions as a valuer;

(c)make the valuation in accordance with such rules as may be prescribed;
and
(d)not undertake valuation of any assets in which he has a direct or indirect interest or becomes so interested at any time [during a period of three years prior to his appointment as valuer or three years after the valuation of assets was conducted by him.]
(3)If a valuer contravenes the provisions of this section or the rules made thereunder, the valuer shall be punishable with a fine which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees:
Provided that if the valuer has contravened such provisions with the intention to defraud the company or its members, he shall be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
(4) Where a valuer has been convicted under sub-section (3), he shall be liable to— (i)refund the remuneration received by him to the company; and
(ii)pay for damages to the company or to any other person for loss arising out of incorrect or misleading statements of particulars made in his report.

  1. Section 281(1)(a) Valuing assets for submission of report by the liquidator:- Valuation of Assets for submission of report by the liquidator in case of winding up is required to be done by Registered Valuer.

Submission of report by Company Liquidator in case of winding up Order by NCLT

The nature and details of the assets of the company including their location and value, stating separately the cash balance in hand and in the bank, if any, and the negotiable securities, if any, held by the company: Provided that the valuation of the assets shall be obtained from registered valuers for this purpose.

  1. Section 305 (2) (d) Declaration of Insolvency:- When there is a proposal for Voluntary winding up which is made by a Company, the Declaration of Insolvency given by Directors must be accompanied with the Valuation report issued by the registered valuer.
  2. Section 319 (3)(b) Sale of property of Company in consideration of Shares:- The member of the transferor company who does not vote in favour of the special resolution and also who expresses his dissent therefrom in writing addressed to the Company Liquidator within 7 days after the passing of the resolution, and left at the registered office of the company requires the liquidator to purchase his interest on the price has to be determined by agreement or the registered valuer.
  3. Rule 2(c)(ix) and Rule 6(1) of Companies (Acceptance of Deposit) Rules, 2014 Valuation of Secured Debentures:- The Secured Debentures if valued by the Registered Valuer will be excluded from the definition of Deposits.

Exclusions from Deposits. by the issue of debentures secured by a charge on the company’s assets. The amount of such debentures shall not exceed the market value of the assets as determined by a Registered Valuer.

  1. Rule 8 of Companies (Share Capital and Debentures) Rules, 2014 (Issuance of Equity Shares):-These rules apply to all companies except listed companies issuing equity shares to its employees or directors.

The rule prescribes that the equity shares shall be issued at a price as a fair price giving justification for such valuation determined by a registered valuer.

The value of the intellectual property or any other value additions, for which the equity shares have been issued to its employees or directors, has to be determined by a valuation report of a registered valuer. If the equity shares are issued for non-cash consideration, the value of that non-cash consideration must be based on a valuation report by the registered valuer. Also, if the equity shares are issued pursuant to the acquisition of an asset, the value of such asset also has to be determined based on a valuation report by a registered valuer.

Rule 8 (6), (7), (9) & (12) of Companies (Share Capital and Debentures) Rules, 2014 Issue of Sweat Equity Shares This rule applies to all companies except listed companies issuing sweat equity shares to its directors or employees.

  1. a) The rule prescribes that the sweat equity shares shall be issued at a price determined by a registered valuer as the fair price giving justification for such valuation.
    b) the value of the intellectual property or know-how or any other value additions, for which the sweat equity shares have been issued to its directors or employees shall be determined by a valuation report of a registered valuer.
    c) If the sweat equity shares are issued for non-cash consideration, the value of such non-cash consideration shall be based on a valuation report by a registered valuer.
    d) Additionally, if the sweat equity shares are issued pursuant to the acquisition of an asset, the value of such asset shall also be determined based on a valuation report by a registered valuer.
  2. 1. Rule 12(5) of the Companies (Prospectus and Allotment of Securities) Rules, 2014:-  Allotment of Shares in consideration besides Cash- In the case of securities if not are bonus shares allotted as fully or partly paid-up for consideration besides the cash, then e- form PAS-3shall be attached to the copy of the contract and duly stamped.

Return of Allotment A report of a registered valuer in respect of valuation of the consideration shall also be attached (Prospectus and Allotment of Securities) Rules, 2014 along with the contract as mentioned in sub-rule (3) and sub-rule (4)

  1. Rule 13 (1) of the Companies (Share Capital and Debentures) Rules, 2014 Issue of shares on preferential basis

Provided further that the price of shares to be issued on a preferential basis by a listed company shall not be required to be determined by the valuation report of a registered valuer.

  1. Rule 16(1)(c) of Companies (Share Capital and Debentures) Rules, 2014 (Buy-Back of Shares):- When the shares of a company are not listed on a recognized stock exchange, the valuation of that shares are to be purchased has to be made by a registered valuer.

Provision of Money by Company for Purchase of its Own Shares by Employees or by Trustees for the Benefit of Employees

Provision of money by the company for the purchase of its own shares by employees or by trustees for the benefit of employees – where shares of a company are not listed on a recognized stock exchange, the valuation at which shares are to be purchased shall be made by a registered valuer;

  1. Rule 6 of Companies (Acceptance of Deposit) Rules, 2014

Creation of Security Provided that in the case of deposits which are secured by the charge on the assets referred to in Schedule III of the Act excluding intangible assets, the amount of such deposits and the interest payable thereon shall not exceed the market value of such assets as assessed by a registered valuer.

PART-2

PROVISIONS GIVEN UNDER SEBI, WHICH REQUIRES VALUATION REPORT FROM A REGISTERED VALUER:-

  1. SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018- Provisions of Preferential Issue does not to apply to certain below-
  • 158(6)(b) Conversion price of debt, as a debt restructuring scheme, has to be certified by two independent registered valuer
  • 163(3) when the specified securities are issued on a preferential basis for consideration besides cash, the valuation of the assets for which the equity shares are issued has to be be done by a valuer, which must be submitted to the stock exchanges where the equity shares are listed. Provided that if the stock exchange is not satisfied with the appropriateness of the valuation, then the valuation can be done any other valuer and for this purpose, it may seek any information, as deemed necessary, from the issuer.
  • 165– When the shares of an issuer are not frequently traded, the price determined by the issuer must be taken into account the valuation parameters including book value, comparable trading multiples. Such other parameters are as customary for valuation of shares of those companies.
  • Provided that the issuer has to submit a certificate stating that the issuer is in compliance of this regulation, and that has to be obtained from an independent valuer to the stock exchange when and where the equity shares of the issuer are listed.
  1. SEBI (Appointment of Administrator and Procedure for refunding to Investors) Regulations, 2018:-
  • 7(2)(b)- Functions of the Administrator: The Administrator must engage the services provided by the registered valuer to make an evaluation of the properties of defaulter that are attached by the Recovery Officer. Also for submission of a certified valuation reporting accordance with the guidelines issued by the Board
  • 8(1)- Sale of Properties: The Administrator has to undertake the process of the sale of properties after conducting a separate valuation of those properties by a registered valuer.
  1. SEBI (Listing Obligations and Disclosure Requirements Regulations), 2015    
  • 87C (1)(ii)- Valuation, Rating and NAV disclosure: An issuer whose security receipts are listed on a stock exchange must ensure that the valuation is conducted by a registered valuer.

SEBI (Issue and Listing of Securitized Debt Instruments and Security Receipts) Regulations, 2008:-

  • 38G (1)(a)- Valuation, Rating and NAV disclosure: An issuer whose security receipts are listed on a recognized stock exchange must ensure that the valuation is conducted by a registered valuer.

PART-3

PROVISIONS GIVEN UNDER THE INSOLVENCY AND BANKRUPTCY CODE, 2016 AND THE REGULATIONS, WHICH REQUIRES VALUATION REPORT FROM A REGISTERED VALUER:-

  1. Section 59(3)(b)(ii) of Insolvency and Bankruptcy Code, 2016 (Voluntary liquidation of corporate persons):- When a proposal for Voluntary winding up is made by a Company, the Declaration of Insolvency given by Directors must be accompanied along with the Valuation report issued by Registered Valuer.
  2. Section 46(2) of Insolvency and Bankruptcy Code, 2016 Relevant period for avoidable transactions:- In the application for avoiding a transaction at undervalue the Adjudicating Authority needed an expert to assess evidence relating to the value of the transactions.
  3. Regulation 27 read with regulation 35 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016:- Appointment of registered valuer: The interim resolution professional must within 7 days, has to appoint two registered valuers for determining the liquidation value of the corporate debtor according to Regulation 35. The resolution professional must within seven days of his appointment, but not later than forty-seventh day from the insolvency commencement date, has to appoint two registered valuers for determining the fair value and the liquidation value of the corporate debtor according to regulation 35.
  4. Regulation 35 of IBBI (Liquidation Process) Regulations, 2016 (Valuation of assets intended to be sold):- The assets which are sold by liquidator has to be valued by Registered Valuer.
  5. Regulation 3(1)(b)(ii) of the IBBI (Voluntary Liquidation Process) Regulations, 2017 Initiation of liquidation:- The Declaration of Insolvency given by Directors must be accompanied with the Valuation report issued by Registered Valuer.
  6. Regulation 26 of IBBI (Fast Track Insolvency  Resolution Process for Corporate Persons)  Regulations, 2017 (Appointment of registered Valuer) :- The resolution professional must within seven days has to appoint one registered valuer for determining the fair value and the liquidation value of the corporate debtor according to Regulation 34.
  7. Regulation 34 of IBBI (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017:- The Fair value and liquidation value: When the registered valuer appointed under regulation 26 he must submit to the resolution professional an estimate regarding the fair value and Liquidation value.

 

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