India gets 638 declarants for $580-mn black money
India's drive against black money to get back ill-gotten wealth stashed away by its citizens abroad has drawn responses from 638 declarants for total assets worth Rs.3,770 crore ($580 million), an official statement said on Thursday.
 
The amnesty scheme ended September 30. It called for a tax of 30 percent and an equal amount in penalty, that is to be paid before December 31. The compliance window opened on July 1.
 
The official statement said the actual quantum of declaration, under what is called the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, was subject to a final reconcilitaion.
 
India has no official estimate about the quantum of black money stashed away by Indians abroad but unofficial estimates puts the sum somewhere between $466 billion and $1.4 trillion.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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Is Peer-to-Peer lending too futuristic in India?
While intending to set up a P2P platform, one may not find legal provisions for this at present. However, with the popularity of the concept, the laws and regulations will have to evolve
 
Globally peer-to-peer (P2P) models are a phenomenon and are as easily accepted as the conventional model of lending. Some offspring of P2P model, such as crowd funding also are becoming popular in India in the philanthropy sector. Considering the novelty of the idea, there are several issues to tackle while intending to set up a P2P platform, which one may not find legal provisions to currently, however, with the popularity of the concept, the laws and regulations will evolve as well.
 
In India, the traditional sources of funding are well established. Banks and financial institutions in India have been largely responsible for making available credit in the economy. This apart, where conventional sources of funding have not been available the needs of the financially excluded have been catered to through community-based financing, chit funds, co-operative societies advancing loans to its members and so on. The sourcing of funds at the granular level to bring about financial inclusion has been sporadic and disorganized and hence at small scale. All these sources of funding, conventional or otherwise, over the years have had a limitation of physical interface. 
 
With the advent of technology, the world seems to be shrinking and so have the dynamics of communication, transactions and contractual understandings changing. The need for physical interface is reducing constantly. The upside of the technological advent is the outreach for any person has increased manifold; I could reach out to anyone anywhere in the world at any given point of time, also reach out to several people across world simultaneously, at the same time. This upside has led to innovation in the lending business as well, whereas virtual interface/ marketplace can be created for buyers and sellers.  
 
The emergence of technology aided innovations such as peer to peer Lending (P2P) models. Such web portals act as a conduit or a virtual platform to be more specific, to bring together the lenders and the borrowers virtually. The web portals do not undertake credit underwriting or financing business – it just provides lists the borrowers and the lenders, making lending opportunity available from one to many. 
 
The basic functions that the web portal carries out are that of a service provider and on a broader perspective include the following:
 
a. Provide a platform for lenders and borrowers to meet;
 
b. Basic information about borrowers and lenders;
 
c. Providing ancillary services for the financial transaction and carrying out operational activities ancillary to financial arrangement. 
 
d. The platform can provide services pertaining to loans for facilitating the lending transactions but does not subsume the role of the borrower or the lender in any of the transactions. 
 
While there are no specific regulations guiding the peer to peer lending model, there are some nagging questions which one needs to address while determining the question of setting up a P2P lending platform. 
 

Legal Aspects:

 
Following questions addresses the basic queries that may come into the mind of new entrants into this sector: 
 
1. Should the Company running this platform require a NBFC registration with RBI or with state money lending law?
 
NBFCs are regulated by the RBI Act, 1934 and various directions issued by the RBI on this behalf. Section 45I (f) of the RBI Act, 1934 defines NBFCs as ‘a financial institution which is a company.’ Section 45I (c) defines financial institution as: 
 
‘Financial institution’ is defined to be those institutions which are engaged in financial activities.
 
Since the principal business of the company/ platform is to connect the lender and the borrower, the company itself is not engaging in the activity of financing/ funding it is merely providing for a platform for the lenders and borrowers to meet and is charging servicing fees for rendering such a platform. Hence, the activity carried out by the platform under the present business model would not qualify to be carrying out financial activity and hence not an NBFC requiring registration with the RBI.
 
With regard to applicability of the money lending law or registration of the company under the Money Lender’s Act, most states have their own Act. Money Lender includes any such person or firm carrying the business of money lending. 
 
Again, by the same logic, since the business model of the company is to merely provide a platform for facilitating lending activity, the platform itself cannot be said to be providing loans or advances, rather is a service provider charging a nominal fees in facilitating the financing business. Hence registration under money lending laws may not be required.
 
2. Will the cash account maintained for the lenders/ investors by the platform qualify as public deposits under RBI’s “Acceptance of Public Deposit” directives?
 
The amount held by the P2P lending platform will be for and on behalf of the lenders. The platform will only act as a facilitating agent for the multiple transactions taking place on its platform, neither does it on-lend nor does it aggregate or allocate the funds of the lenders. It is merely acting as a conduit and an interface for facilitating the virtual meeting. 
 
Going by that analogy, any amount held in trust for and on behalf of another person shall not qualify to be deposit as per the Companies (Acceptance of Deposits) Rules, 2014.
 
3. Claw-back rights of the creditors of the company running the platform on the cash accounts of the investors in the event of bankruptcy of the company?
 
The Company/ platform is holding money in trust for lenders in the cash account created for the lenders under the conditions mentioned in the business model. The Company/ platform would neither be lending out on behalf of the lenders from this cash account, nor operating this account, at will, for the benefit of the lenders. Therefore, the amount in the lenders’ cash account held with the platform cannot be taken as a part of the bankruptcy estate of the platform. Hence, there cannot be a claw-back by the creditors of the company/ platform on the cash accounts created for the lenders which is held in trust by the platform for the lenders. 
 
4. As multiple investors would come together to fund a single loan, will it constitute as “Collective Investment Scheme” as per SEBI CIS Regulations?
 
Under Section 11AA sub-section (2) of the Securities Exchange Board of India Act, 1934 one of the conditions is that there should be pooling of money for any scheme or arrangement with the purpose of making profits or earning income from the investment and the investment is managed on behalf of the investors. Such platform merely acts as an interface for the lenders and borrowers to meet. However, there is NO pooling in of money which is lent out to borrowers. A single borrower may have multiple lenders but that does not tantamount to pooling of money. Each lender would be lending out to a single borrower. Each lender is maintaining his/ her separate account and is managing the portfolio by making an informed decision. Hence, such platforms would not attract CIS regulations of SEBI. 
 
5. Will the platform be responsible for deducting tax on the income earned by the lenders through this platform?
 
Platform/ company is only acting as an interface for meeting of the lender and the borrower. The borrower while making payment to the lender for the installments and payment to the platform for services rendered would be liable to deduct tax under section 194A or such other section as may be relevant under the Income Tax Act, 1961. 
The platform may be charging fees for the services provided by it to the lenders and the borrowers and the same may be subject to taxes as well.
 
6. In the event of default of any loan, can the lenders have recourse to the platform?
 
In the event of default, the platform/ company may use its resources to recover the money from the borrower to the extent of hiring a recovery agent as well; however, the company/ platform shall not assume any liability of repayment of the loan to the lender.
 
To elaborate further, the company/ platform is not party to any of the loans and does not oblige itself to recovery of money from the borrowers as that would tantamount to assuming liability as a guarantor in the transactions undertaken between the borrower and the lender. 
 
The idea of a P2P platform is not to intermediate in a loan but is to facilitate the loans. Hence while the platform/ company may assist in recovery of the money from the borrower, the liability of non-recovery would be on the lender himself. This can be stated very clearly in the agreements that you enter with the lender to make the understanding clear. Also, please bear in mind that RBI has strict guidelines for engagement of recovery agents.
 
Since technological intervention is more and more becoming a part of life, the redundancy of physical interaction will be growing in the lending and financial services business as well. Growth of P2P lending models in India is not too futuristic; it probably is the next thing arriving in the country.
 
(CS Nidhi Bothra is executive vice president at Vinod Kothari Consultants Pvt Ltd and Shruti Agarwal works at Financial Training Division of Vinod Kothari & Co)

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COMMENTS

mariyam khatib

10 months ago

Thank you very much for enlighten me regarding the same.

I would request you to please clarify this 2 points

1) In your view of Legal aspect, why do you think this platform does not need SEBI registration as Investment Advisors.

2 ) Will the coming legislation affect P2P LENDING as below:

Legislation of a comprehensive Central law called the “Banning of Unregulated Deposit
Schemes and Protection of Depositors’ Interests Bill” (“the Banning Bill”). Further, the
Government has announced in the Budget 2016-17 that it proposes to bring in a
comprehensive Central legislation in 2016-17 to deal with the menaceof unauthorised
deposit taking schemes".

mariyam khatib

1 year ago

I think the platform need Sebi registration as Investment advisor.

How Some Alabama Hospitals Quietly Drug Test New Mothers - Without Their Consent
As hundreds of Alabama women face child endangerment charges, hospitals are mostly mum on their testing policies - even with the patients
 
This story was co-published with AL.com.
 
In Alabama, a positive drug test can have dire repercussions for pregnant women and new mothers. Their newborns can be taken from them. They can lose custody of their other children. They can face lengthy sentences in the most notorious women’s prison in the United States and thousands of dollars in fees and fines. 
 
Yet the hospitals that administer those drug tests — and turn the results over to authorities — are exceedingly reluctant to disclose their policies to the public. In many cases, they test mothers and babies without explicit consent and without warning about the potential consequences, ProPublica and AL.com have found.
 
According to a review of hundreds of court records, drug testing is ubiquitous in some Alabama counties — sometimes of mothers, sometimes of infants, sometimes both. In some parts of the state, hospitals test on a case-by-case basis, employing criteria that virtually ensure greater scrutiny for poor women. 
 
ProPublica and AL.com began examining hospital drug-testing policies as part of an investigation into Alabama’s chemical endangerment law, the country’s toughest law targeting drug use in pregnancy. Since 2006, the law has been used to charge nearly 500 women with endangering their unborn children. In many cases, law enforcement officials cited hospital-administered drug tests as probable cause for arrest.
 
Forty-two of the 49 hospitals that deliver babies in Alabama declined to answer an AL.com/ProPublica questionnaire about testing policies, despite repeated requests over several months. Of the seven that did respond, three provided only partial information. Officials at several hospitals declined interview requests to explain why they didn’t want to answer the questionnaires.
 
In six consent forms obtained from patients and a handful of hospitals — paperwork that patients sign when they check in to deliver their babies — drug testing is specifically mentioned in only two. None indicate that positive results can trigger arrest and prosecution under the Alabama chemical endangerment statute.
 
“If hospitals are not informing their patients about what their drug-testing policies are, particularly when those results are used to involve law enforcement in their patients’ lives, that is an unconstitutional act,” said Sara Ainsworth, director of legal advocacy for the New York–based National Advocates for Pregnant Women.
 
Under Alabama law, drug abuse in pregnancy is considered a form of child abuse, and medical providers are “mandatory reporters,” meaning they are required to report positive test results to child welfare authorities, who then must report them to law enforcement. At least 15 other states also treat prenatal drug use as child abuse, but only three — Alabama, South Carolina, and Tennessee — explicitly allow mothers to be criminally prosecuted.
 
The potential penalties under Alabama law are especially stiff: one to 10 years in prison if a baby is exposed but suffers no ill effects; 10 to 20 years if a baby shows signs of exposure or harm; and 10 to 99 years if a baby dies.
 
Rosemary Blackmon, executive vice president of the Alabama Hospital Association, spoke on behalf of three hospitals that declined to answer the AL.com/ProPublica questionnaire. She said hospitals fear that discussing their drug testing policies could keep pregnant women from… Continue Reading…
 

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