SEBI on 14th February, 2023 has issued the Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2023. The amendment provides that “Independent director” in case of a Infrastructure Investment Trust company means a director, other than a nominee director of the investment manager:
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(i) who, in the opinion of the Board of Directors of the investment manager, is a person of integrity and possesses relevant expertise and experience;
(ii) who is not or was not the promoter of parties to the InvIT, its holding company, the subsidiary or associate;
(iii) who is not related to the InvIT, its Holdco and/or SPV, parties to the InvIT,
its holding company, the subsidiary or associate or their promoters or directors;
(iv) who, apart from receiving director’s remuneration, does not have any or has had no material pecuniary relationship with the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, the subsidiary or associate or their promoters or directors, during the three immediately preceding financial years or during the current financial year;
(v) none of whose relatives –
(A) is holding securities of or interest in the InvIT, its Holdco and/or SPV, parties to the InvIT, their holding Company, subsidiary or associate during the three immediately preceding financial years or during the current financial year of face value in excess of fifty lakh rupees or two percent of the unit capital of the InvIT, two percent of the paid-up capital of the parties to the InvIT, their holding Company, subsidiary or associate or Holdco and/or SPV respectively or such higher sum as may be specified;
(B) is indebted to the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate or their promoters or directors, during the three immediately preceding financial years or during the current financial year in excess of such amount as may be specified;
(C) has given a guarantee or provided any security in connection with the indebtedness of any third person to the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate or their promoters or directors, during the three immediately preceding financial years or during the current financial year for such amount as may be specified; or
(D) has any other pecuniary transaction or relationship with the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate amounting to two percent or more of its gross turnover or total income:
Provided that the pecuniary relationship or transaction with the InvIT, its holdco or SPV, parties to the InvIT, its holding company, subsidiary or associate or their promoters, or directors in relation to points (A) to (D) shall not exceed two percent of its gross turnover or total income or fifty lakh rupees or such higher amount as may be specified from time to time, whichever is lower.
(vi) who, neither himself or herself, nor whose relative(s)—
(A) holds or has held the position of a key managerial personnel or is or has been an employee of the Holdco and/or SPV, parties to the InvIT or its holding, subsidiary or associate or any company belonging to parties to the InvIT in any of the three financial years immediately preceding the financial year in which he/she is proposed to be appointed:
Provided that in case of a relative who is an employee other than a key managerial personnel, the restriction under this clause shall not apply for his/her employment;
(B) is or has been an employee or proprietor or a partner, in any of the three financial years immediately preceding the financial year in which he/she is proposed to be appointed, of-
(1) a firm of auditors or company secretaries in practice or cost auditors of the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate; or
(2) any legal or a consulting firm that has or had any transaction with the InvIT, its
Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or
associate amounting to ten per cent or more of the gross turnover of such firm;
(C) holds together with his relatives two per cent or more of the total voting power of the InvIT, its Holdco and/or SPV, parties to the InvIT
(D) is a chief executive or director, by whatever name called, of any non-profit organisation that receives twenty-five per cent or more of its receipts or corpus from the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate, any of its promoters, directors or that holds two per cent or more of the total voting power of the InvIT, its Holdco and/or SPV parties to the InvIT;
(E) is a material supplier, service provider or customer or a lessor or lessee of the InvIT, its Holdco and/or SPV, parties to the InvIT, its holding company, subsidiary or associate;
(vii) who is not less than 21 years of age; or
(viii) who possesses such other qualifications as may be specified by the Bar.
