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Secretarial Compliance, Share Certificate, Transfer of Shares

Shares, like any other property, is an investment in a business which can be sold out, when something like that happens the process is called transfer of shares. Shares held by an investor are presumed to be capable of transfer unless the company has restricted the right to transfer them by a provision in its articles, or the shareholder has entered into a contract, such as a shareholders’ agreement, not to transfer the shares. This article is structured to help shareholders understand the methodology of Transfer of shares – What, Why, and How may it be done.

Statutory provisions:

  1. Section 56 of Companies Act, 2013
  2. Rule 11 of Companies (Share Capital & Debentures) Rules 2014
  3. Provisions are given in model articles of association given in Table ‘F’ of Schedule-I



Procedure for Transfer of Share in a Private Company:

 

Generally, articles contain the detailed provisions as regards to the procedure for transfer of shares. Usually following steps shall be followed by a private company to give effect to the transfer of shares:—

 

  1. Transferor should give a notice in writing for his intention to transfer his share to the company.

 

  1. The company, in turn, should notify to other members as regards the availability of shares and the price at which such share would be available to them.

 

  1. Such price is generally determined by the directors or the auditors of the company.

 

  1. The company should also intimate to the members, the time limit within which they should communicate their option to purchase shares on transfer.

 

  1. If none of the members comes forward to purchase shares then the shares can be transferred to an outsider and the company will have no option, other than to accept the transfer.

 

  1. Get the Share transfer deed in form SH-4 duly executed both by the transferor and the transferee.

 

  1. The transfer deed should bear stamps according to the Indian Stamp Act and Stamp Duty Notification in force in the State concerned. The present rate of transfer of shares is 25 Paise for every one hundred rupees of the value of shares or part thereof. Do not forget to cancel the stamps affixed at the time or before the signing of the transfer deed.

 

  1. The signatures of the transferor and the transferee in the share transfer deed must be witnessed by a person giving his signature, name, and address.

 

  1. Attach the relevant share certificate or allotment letter with the share transfer deed and deliver the same to the company. The share transfer deed should be deposited with the company within sixty (60) days from the date of such execution by or on behalf of the transferor and by or on behalf of the transferee.

 

  1. After receipt of share transfer deed, the board shall consider the same. If the documentation for transfer of share is in order, the board shall register the transfer by passing a resolution.

 

 

Procedure for Transfer of Share in a Public Company:

 

Section 58(2) provides that the shares or debentures and any interest therein of a public company shall be freely transferable. Usually following steps shall be followed by a private company to give effect to the transfer of shares:—

 

  1. Get the Share transfer deed in form SH-4 duly executed both by the transferor and the transferee.

 

  1. The transfer deed should bear stamps according to the Indian Stamp Act and Stamp Duty Notification in force in the State concerned. The present rate of transfer of shares is 25 Paise for every one hundred rupees of the value of shares or part thereof. Do not forget to cancel the stamps affixed at the time or before the signing of the transfer deed.

 

  1. The signatures of the transferor and the transferee in the share transfer deed must be witnessed by a person giving his signature, name, and address.

 

  1. Attach the relevant share certificate or allotment letter with the share transfer deed and deliver the same to the company. The share transfer deed should be deposited with the company within sixty (60) days from the date of such execution by or on behalf of the transferor and by or on behalf of the transferee.

 

  1. After receipt of share transfer deed, the board shall consider the same. If the documentation for transfer of share is in order, the board shall register the transfer by passing a resolution.

 

 Main Provisions related to Transfer of Share:

 

  1. Instrument for Transfer of Share is compulsory: Section 56 provides that a company shall not register a transfer of shares of, the company, unless a proper transfer deed in Form SH.4 as given in Rule 11 of Companies (Share Capital & Debentures) Rules 2014 duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee and specifying the name, address and occupation, if any, of the transferee, has been delivered to the company, along with the certificate relating to the shares, or if no such certificate is in existence, along with the letter of allotment of the shares.

 

  1. Time Period for deposit of Instrument for Transfer: An instrument of transfer of shares i.e. Form SH.4 with the date of its execution specified thereon shall be delivered to the company within sixty (60) days from the date of such execution by or on behalf of the transferor and by or on behalf of the transferee.

 

  1. Value of share transfer stamps to be affixed on the transfer deed: Stamp duty for transfer of shares is 25 paise for every Rs. 100 or part thereof of the value of shares as per Notification No. SO 130(E), dated 28-01-2004 issued by the Ministry of Finance, Department of Revenue, New Delhi.

 

  1. Time limit for issue of certificate on transfer (Section-56(4)): Every company, unless prohibited by any provision of law or of any order of any Court, Tribunal or other authority, shall, within One month deliver, the certificates of all shares transferred after the application for the registration of the transfer of any such shares, debentures or debenture stock received.

 

  1. Private company shall restrict right to transfer its shares: Entire shareholding of a private company may be owned by a family or other private group. Section 2(58)(i) of the Companies Act, 2013 provides that the Articles of a private company shall restrict the right to transfer the company’s shares.

 

  1. Restriction on transfer in Private Company not applicable in certain cases: Restriction upon transfer of shares is in private company are not applicable in the following cases:

 

(i) on the right of a member to transfer his/her shares cannot be applicable in a case where the shares are to be transferred to his/her representative(s).

 

(ii) in the event of the death of a shareholder, legal representatives may require the registration of share in the names of heirs, on whom the shares have been devolved.

 

Note: Restriction should not be in the form of prohibition and Restriction can only be by the Articles of Association.

 

  1. Time Limit for Refusal of registration of Transfer: Provisions related to Refusal of registration and appeal against refusal is given in Section 58 of the Companies Act, 2013. Power of refusal to register transfer of shares is to be exercised by the company within thirty (30) days from the date on which the instrument of transfer or the intimation of transfer, as the case may be is delivered to the company.

 

  1. Time Limit for appeal against refusal to register Transfer by Private Company: As per section 58(3), a transferee of shares may appeal to the Tribunal against the refusal within a period of thirty (30) days from the date of receipt of the notice from the Company or in case no notice has been sent by the company, within a period of sixty (60) days from the date on which the instrument of transfer or the intimation of transmission, as the case may be, was delivered to the company.

 

  1. Time Limit for appeal against refusal to register Transfer by Public Company: As per section 58(4), a transferee of shares may, within a period of sixty (60) days of such refusal or where no intimation has been received from the company, within ninety (90) days of the delivery of the instrument of transfer or intimation of transmission, appeal to the Tribunal.

 

  1. The penalty for Non-compliance: Where any default is made in complying with the provisions related to transfer of shares, the company shall be punishable by a fine which shall not be less than Rs. 25,000/- but which may extend to Rs. 5,00,000/- and every officer of the company who is in default shall be punishable with fine which shall not be less than Rs. 10,000/- but which may extend to Rs. 1,00,000/-.

 


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