Due diligence is a formality performed before bank loan funding, business sale, private equity investment, etc., It is the process to check, the financial, legal and compliance aspects of the company that are usually reviewed and documented. This procedure can be followed in any type of company whether it Private Limited Company or any other Limited Company. Companies should be updated with the checklist by performing due diligence on a company in India.
Due diligence mainly helps the buyer take an informed investment decision and mitigate risks associated with a business purchase transaction. In the procedure both the parties usually enter into a non-disclosure agreement prior to starting a business due diligence as sensitive financial, operational, legal and regulatory information would be divulged to the buyer during the due diligence process. It is the responsibility of the seller of the business or shares or “Seller” to provide the documents and information necessary for performing a due diligence on the company to the buyer. Business due diligence is process performed prior to the purchase of a company or investment in a company by the acquirer or investor or we can say buyer.
Documents Required During Company Due Diligence
- Certificate of Incorporation
- Memorandum of Association
- Articles of Association
- Shareholding Pattern
- Financial Statements
- Income Tax Returns
- Bank Statements
- Tax Registration Certificates
- Tax Payment Receipts
- Property Documents
- Statutory Registers
- Intellectual Property Registration or Application Documents
- Employee Records
- Utility Bills
- Operational Records
Review of MCA Documents
Mainly due diligence of a company starts with the MCA (Ministry of Corporate Affairs) website. The master data about a company is made publicly available. Further, with the payment of a small fee, all documents filed with the Registrar of Companies is made available to anyone. The relevant information from the MCA website is usually verified first. The documents and information gathered in this step include:
- Company Information
- Date of Incorporation
- Authorised Capital
- Paid up Capital
- Date of Last Balance Sheet
- Date of Last Annual General Meeting
- Status of the Company
- Director Information
- Date of Appointment of Directors
- Directors of the Company
- Charges Registered
- Details of Secured Lenders of the Company
- Quantum of Secured Loans
- Documents
- Certificate of Incorporation
- Memorandum of Association
- Articles of Association
In addition to the above, the financial information of the company and other filings with the MCA pertaining to various aspects of the company can be downloaded and reviewed. The review of MCA documents of the company would provide a good overview of the company to the person performing the due diligence.
Review of Articles of Association
It is very important to review the articles of association of a company during the due diligence process to ascertain the different classes of equity shares and their voting rights. The articles of association of a company can restrict the transfer of shares of a company. Thus, the articles of association should be studied carefully to ascertain the procedure for transfer of shares.
Review of Statutory Registers of Company
Under Companies Act, 2013, a private limited company is required to maintain various statutory registers pertaining to share allotment, share transfer, board meetings, board of directors, etc., Therefore, the statutory registers of a company must be reviewed to obtain and validate information pertaining to directorship and shareholding.
Review of Taxation Aspects
Taxation aspects of a company must be thoroughly checked during the due diligence process to ensure that there are no unforeseen tax liabilities created on the company in a future date. The following aspects relating to the taxation aspect of a company must be checked:
- Income tax return filed
- Income tax paid
- Calculation of income tax liability by the company
- ESI / PF Returns Filed
- ESI / PF Payments
- ESI / PF Payment Calculation
- Service Tax / VAT Returns Filed
- Service Tax / VAT Payments
- Basis for Service Tax / VAT Payment Calculation
- TDS Calculations
- TDS Returns
- TDS Payments
Review of Book of Accounts and Financial Statements
Companies need to maintain book of accounts along with detailed transaction information by the Companies Act, 2013. Hence, detailed financial transaction information must be audited and verified against the financial statements prepared by the company. Some of the matters relevant during the business financial due diligence process are:
- Verification of cash flow information
- Verification and valuation of all assets and liabilities
- Verification of bank statements
- Verification of all financial statements against transactional information
Review of Legal Aspects
A comprehensive legal audit of the company must be performed by a legal practitioner to ascertain if there are any pending legal actions, suits by or against the company and liability in each. Further, the following aspects must be checked during the legal due diligence:
- Legal due diligence for all real estate properties of the company.
- Verification of court documents and court filings, if any.
- No objection from Secured Creditor for transfer of company.
Review of Operational Aspects
It is important to obtain a through understanding of the business model, business operations and operational information during the due diligence process. The review of operational aspects must be extensive including site visits and employee interviews. Following are aspects that must be covered and documented in the operational aspects review:
- Number of Customers
- Number of Employees
- Business Model
- Production Information
- Machinery Information
- Vendor Information
- Utilities
In addition to the above, based on the business and business model, other operational aspects may be important. Those aspects must be thoroughly checked and documented during the due diligence process.
