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February, 2002
 
Contents

Enron could well be the precursor of a string of potential disasters. Apart from Enron whose bankruptcy has sent 50 billion $ worth of shareholder wealth into thin air, there is mention of similar cases of massive share holder value erosions in respect of Lucent, Nortel, and Xerox. Despite the focus on corporate governance, fiduciary capitalism and shareholder activism something is obviously running astray.

Corporate governance assumes that the Board will be accountable and hence be responsible. If "the buck stops at the Board", then it should be a robust structure and not a sand bag. Are our Boards robust? We do not have good enough data in respect of India, but an article by Geoffrey Colvin in the Fortune magazine gives a insight into the state of American Boards in a survey of 1500 companies:

  • Number of directors without any stock in the company: 963
  • Number of inside directors: 4218 (roughly three per company)
  • Company with most inside directors: AIG - the insurance conglomerate with 9 executive directors.
  • Directors who missed more than 25 per cent of the meetings last year: 271 (Which includes American Express's Ken Chenault, Pepsi Co's Roger Enrico, Oracle's Larry Ellison, Oracle's Larry Ellison, and News Corp's Rupert Murdoch, in respect of their other board membership).
  • No. of directors who are over 90 years of age: Nine - 9

Is it time for a survey of the Indian Boards to see how fragile the governance structure is?

 

 

National Roundup
Presentation to Consultative Group of RBI by Y.R.K.Reddy, Academy of Corporate Governance
Delisting and consolidation - Is it the takeover threat?
Is DCA Going Soft?
Panel on Accounting Standards
Companies Bill Amendment
SEBI, Takeover Code and the PSU
Banks want more time on segment reporting
International Roundup
SEC to scrutinize annual reports of Fortune 500 Companies
Articles
Public Sector Enterprise Shares: Valuation and Disinvestment - by R.K. Mishra & B. Navin

Hony. Editor
Dr. Bindi Mehta

(Director, Research at ICSI - CCRT, Formerly, Chief economist, CRISIL, with long experience at IDBI and independent consulting, Writer and Researcher on CG)

 







Presentation by to Consultative Group of RBI by Academy of Corporate Governance

 

Dr YRK Reddy, Founder Chairman of the Academy of Corporate Governance made a presentation to the Consultative Group of Directors of Banks and FIs set up by RBI under the Chairmanship of Dr.Ashok Ganguly. The presentation and discussion on 8th January,2002, was with special reference to NEDs.

Power Point Presentation






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Delisting and consolidation - Is it the takeover threat?


Close on heels of the report in the last e-journal on "Delisting Wave", there is news that Indian companies are waking up to the possibility of hostile takeovers. Companies appear to be mopping up shares not only for the reasons cited in the last report but also to consolidate their positions. According to data available with the Securities and Exchange Board of India (SEBI), the number of open offers increased to 61 in nine months ended December 2000 as against 77 in the entire 2000.

Companies, which approached the markets in the year gone by with open offers or equity buyback plans include Bombay Dyeing, Britannia, VST Industries, Modi Rubber, Carrier Aircon, Thomas Cook, Philips and Gesco.

There are interesting mini battles in the process which can be good training ground for the sleepy corporate India. The mighty Tatas had to respond to the little known Lok Prakashan of Ahmedabad when the latter cornered 14% of Voltas and threatened with an open offer for another 20%. This has obviously prompted the Tatas to begin mopping up shares of Voltas to increase its stake by 10 per cent to over 30 per cent. Another Tata Group company, Forbes Gokak is reportedly facing a threat from Shapoorji Pallonji and Pawan Kumar Group. Some months ago, the Damani group made a vain bid on VST Industries forcing the UK parent BAT Plc to consolidate its stake. Gesco Corporation was a target for a Dalmia Group company which was thwarted by the helping hand of Mahindra to the promoters, the Sheth family.

Carrier and Philips are close to complete control in their respective Indian operation and liquor major South African Breweries (SAB) has similar plans for two Indian liquor companies - Mysore Breweries and Pals Distilleries.

The takeover threats seem to be prompting new structures, better price for the stock of the unsuccessful raider as also the small investor.

(Bindi Mehta and YRK Reddy)

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Is DCA Going Soft?

The Department of Company Affairs (DCA) has reportedly decided against prosecuting the 150,000 errant companies which did not avail of the amnesty scheme for regularization nor filed their returns.

Two reasons seem to have weighed in the mind of the minister Arun Jaitely for this sudden kindness. One is the potential tyranny of the officials from the regulator and the other is the impossibility of the task of action against such a mass of culprits.

Papers report that "the DCA is, however, proposing to disqualify the directors of a public company which has not filed annual accounts for three financial years from being appointed the director of another company for a period of five years. The DCA is being forced to consider this option considering that the number of such companies was on the rise. As against 1,87,776 companies failing to file the annual accounts in 1998-99, the number had gone up by 17.36 per cent in 1999-00 to 2,20,370 companies."

Some believe that several of these errant companies could be special purpose investment vehicles to honorably escape the taxman and for "rotating and spiriting away public funds through inter-corporate investments and loans."

By going soft on them, the DCA may be postponing the prospect of information transparency to researchers and investors, who could, otherwise, access data from the records filed with the ROC.

(YRK Reddy from online sources)

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Panel on Accounting Standards

The 12-member National Advisory Committee on Accounting Standards (NACAS) is to meet in Mumbai on January 5 under the Chairmanship of Mr. Y. H. Malegam, Chartered Accountant, according to a member of the committee.

This would be the second meeting of the advisory committee, which has been set up to advise the government on the formulation and laying down of accounting policies and accounting standards for adoption by companies or class of companies under the Companies Act, 1956.

At its first meeting in October this year, the committee had besides the scope of its functioning deliberated upon the sanctity of the accounting standards issued by the Institute of Chartered Accountants of India (ICAI) in the wake of the establishment of NACAS.

NACAS had also assessed the orientation of the existing accounting standards issued by ICAI in meeting the growth aspirations and needs of the SMEs in the country.

No final decision had emerged as to whether the existing disclosure requirements for the SME sector should be relaxed or not."

(Source: Business Line)

 

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Companies Bill Amendment

 

With the presidential assent, the Companies (Third Amendment) Bill, 2001 has been notified in the Gazette of India as Act No. 57 of 2001. The amendment now provides that if the buyback was to the extent of or less than 10 per cent of the total paid up capital and free reserves of the company, and such buyback had been authorized by means of a resolution passed at the company's board meeting, such buyback shall require special resolution to be passed by a General Body meeting as required by Clause (b) of Subsection (2) of Section 77A of the Companies Act, 1956, which prohibits a company to purchase its own shares to other specified securities unless a special resolution is passed in the general meeting of the company.

(Bindi Mehta)








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SEBI, Takeover Code and the PSU

The SEBI board has recently made changes in the takeover code relating to PSU disinvestments for calculating the offer price. The board decided that a successful public sector company bidding for another PSU has to make an open offer for a minimum 20 per cent in the case of a competitive bid. However, the PSU need not make an open offer for another PSU if the acquisition is without competitive bidding.

For the calculation the offer price, the board decided that the reference date for calculation of offer price in case of frequently traded PSU shares shall be the preceding date when the Central Government opens the financial bids instead of the date when the Government, after Cabinet approval, announces the name of the successful bidder.

This would enable the bidders to take into account the price of the shares and also minimize the possibility of unsuccessful bidder manipulating the market price, SEBI said in a release.

The board also said in the case of infrequently traded PSU shares, the highest price paid by the successful bidder arrived at after the process of competitive bidder under the share purchase agreement between the Government and the strategic partner shall be the minimum offer price for the purpose of the public offer.

The board also decided that the six-month period for determining whether the shares of a PSU are frequently or infrequently traded, shall be taken with respect to the date when the Government opens the financial bids, instead of date when the Government after cabinet approval, announces the successful bidder.

(From Business Line)

 

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Banks want more time on segment reporting

The SEBI's requirements for corporate governance include quarterly segment reporting. The Banks, it appears, have an accounting problem and the Reserve Bank of India has taken up their case with the SEBI. It has asked the SEBI to give banks more time to comply with quarterly segment reporting, which has been made mandatory for companies from the quarter ended December 31.

It is reported that several; listed bank companies have asked the RBIs intervention for seeking more time as they were facing difficulties in collecting the information required for segment reporting.

Segment reporting had been defined as the primary segment format (business or geographical) that is determined based on the entity's predominant source of business risks or returns and identified by reference to the entity's management and internal financial reporting structure.

A segment must be separately reported where most of its sales are to external customers and its sales, profit or assets are 10 per cent or more of consolidated totals.

The principle disclosure requirements for the primary segment are revenue and result, total assets and liabilities, capital expenditure, depreciation or amortisation and other significant non-cash expenses and share of result and net assets of investments accounted for under equity method.

Banks feel that such a reporting would be a regulatory torture on top of the several reports they are already under compulsion to submit. There appears to be some reluctance due to the lack of knowledge/familiarity on such accounting.

(Bindi Mehta and YRK Reddy)


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SEC to scrutinize annual reports of Fortune 500 Companies

The Securities and Exchange Commission (SEC) has said that it will monitor the annual reports of all Fortune 500 companies filing with it in 2002, stepping up a drive to understand and crack down on corporate disclosures.

The SEC is engaged in an attack on misleading "pro forma" financial reporting, but more broadly it is also trying to understand and reform the complex sets of accounting and disclosure rules that US corporations must follow.

The SEC said in a statement, its reviews will focus on disclosures that seem critical to understanding a company's results, but may also seem "to conflict significantly with generally accepted accounting principles for commission rules, or to be materially deficient in explanation or clarity".

The Corporation Finance Division of the SEC will do the reviews, adding to its routine examinations of 10k reports and other documents filed with it under strict SEC formulae by corporations. Annual reports - usually meant for public consumption - may or may not follow SEC reporting rules.

Where problems are found, the commission said it will "select the filing for expedited review". It added, "As always, all companies are encouraged to consult with our staff if there are questions concerning disclosure issues before they file their reports. We and our staff are committed to providing that assistance in a timely fashion; our goal is to address problems before they happen". Bogus "pro forma" financial statements that make a loss look like a profit, without explaining clearly how, will almost certainly be viewed by the SEC as fraudulent or confusing, SEC Chairman Harvey Pitt said last month. While it has always been illegal for companies to deliberately misstate results, Mr. Pitt has escalated in recent weeks the SEC's crackdown on the pro forma reporting style.

Annual and quarterly corporate statements issued on a pro forma basis often skate over accounting rules - either to reveal good results obscured by extraneous conventions or, frequently, to hide bad results by ignoring unpleasant facts. Such financial results are sometimes called "core," "normalized" or "adjusted".

They often exclude costs related to mergers, unusual events, or other profit-reducing items. Use of the pro forma approach has exploded recently and most often is found in annual and quarterly reports and press releases intended for consumption by the media and general public, if not for government regulators.

Forty-eight companies on the Standard & Poor's 500 index this year issued pro forma results, up from just a handful as recently as 1998, said research firm Thomson Financial /First Call, which tracks Wall Street earnings.

Mr. Pitt has said that the pro forma approach, properly used, can help investors wade through the increasingly complex and lengthy financial statements corporations must file. Indeed, the SEC has suggested recently it needs to get a better handle on nontraditional financial reporting metrics that offer insight to investors.

Pro forma reporting can help focus investors attention on the essential core performance of a company by stripping out distracting one-time events. But Mr. Pitt has made it clear that the SEC will hunt down those who make misleading or fraudulent disclosures under the guise of pro forma reporting."

(Economic Times).

 

 

 

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ADAPTATION, TRANSACTION COSTS AND CORPORATE GOVERNANCE
by
Dr. P. K. Rao
(This brief is partly based on the author's forthcoming book
"The Economics of Transaction Costs: Theory, Methods & Applications",
London: Palgrave/Macmillan, 2002)
Corporate governance, viewed as one of the important constituents of economic governance, attracts the application of principles of several disciplines, especially of modern economics. The transaction costs (TC) paradigm offers a general framework for examining the choice of policy instruments and/or regimes for management of resources and economic entities. The fundamental unit of analysis in the economics of organizations is the transaction. The TC paradigm enables articulation and choice of organizations geared to meet stated objectives.

Decades ago, Hayek (1945) argued that the central problem of economic organization one of efficient adaptation to changes in the particular circumstances. Hayekian adaptation is an autonomous market style behavior.

Role of Incentives

The optimal internal organization of a corporate entity can be assessed only after examining and providing for incentive/ disincentive constraints that modulate the stakeholder' role; this is in particular conditioned by the roles of incomplete and asymmetric information in the management of the enterprise. If we are oblivious to the role of 'optimal' incentives, any description of an institution and its classification as a market/non-market or other category can be just as good or as bad another. An efficient provision of incentives is more desirable than focusing on penalties and disincentives, because of higher costs of monitoring and enforcement of the latter. The design and enforcement of optimal incentives for compliance and efficient performance is often less complex than that of provision of disincentives for corresponding tasks. This asymmetry has different TC implications as well. It is often easier and less expensive to effect incentives than to enforce disincentives. The former entails costs in terms of compensation promised as incentive and has the desirable property that some features of self-enforcement. There is no such possibility with the latter (which requires costs of enforcement). Often, a mix of both is considered both cost effective and performance effective in most systems. The main factors that distinguish markets and non-market organizations (including firms) include the following: differences in adaptive efficiency, applications of different contract laws and specifications of incentives (both explicit and implicit contractual implications), and bureaucratic cost differences (both costs of organizing and inefficiency implications of different organizational structures). A combined approach of law, economics and organization becomes very relevant in the context of methods of corporate governance.

Adaptation

If the central problem of economic organization is that of adaptation, then the object of economic organization may be expressed as the following (Williamson, 1996, p. 162): "adapt to disturbances (of both autonomous and bilateral kinds) in ways that economize on bounded rationality while simultaneously safeguarding the transactions in question against the hazards of opportunism." This assertion is based on the recognition that bounded rationality contributes to inevitable incompleteness of all complex contracts (explicit and implicit, both at the corporate board level as well as managerial hierarchies), and that ex post opportunism characterizes contract as founded on moral hazard. The issue of spontaneous and sequential adaptation is matter of practical arrangements, since the imperatives of change do not wait for a corporate entity's convenience. Thus, both types of adaptation are simultaneously relevant; the choice of the mix is to be guided the overall efficiency criteria, considering the interdependencies of both streams. The features of bounded rationality and system uncertainties suggest the need for the application of adaptive efficiency criteria.

Dynamic capabilities and TC


An organization's survival depends critically on its ability to achieve maximum performance per unit resources in the short run while being able to adapt rapidly with optimal speed of adjustment and at minimum TC of adjustment. These are among the desired features of an 'efficient organization', both of the market as well non-market categories. The definition of organizational capability has to include these imperatives of economic success and sustainability; definitions which do not consider sustainability features may admit potential failures of organizations. Winter (2000, p. 983) defined organizational capability as "a high-level routine (or collection of routines)" combined with its implementing input flows, enables a decision set of options for an organization's management in "producing significant outputs of a particular type." Interpreted strictly, this provides a static definition, and often less useful in a rapidly changing market environment. In the context of firms, the resource-based-view of the firm (RBVF) is one of the approaches to the analysis of firm capabilities to sustain over time and adapt to the changes in the market characteristics as well other institutional factors.

The concept of dynamic capabilities may be defined in a context where the competitive landscape is shifting. Dynamic capabilities involved features by which firm managers integrate and reconfigure internal and external competencies to adapt to rapidly changing environments. Adaptation and adaptive efficiency remain most significant criteria for a corporate entity's organizational sustainability and efficiency, respectively. Excessive bureaucracy (not atypical of corporate entities in many developed and developing countries) as a form of governance is an example of maladaptation that entails significant costs.

Dynamic capability of organizations, expressed in terms of adaptive efficiency, is one of the primary requirements of efficient corporate governance. Allocative efficiency and adaptive efficiency may not always be compatible. Much of economics literature deals with the former to the detriment of the latter, seeks to maximize efficiency (allocative efficiency); in this process, TC maximization over time cannot be ruled out. This possibility exists whenever drastic failures of the market or governmental institution occur. Thus there is a great need to recognize the roles of both types of efficiencies; a potential tradeoff may be called for in case of in compatibilities in these criteria. Just as the neglect of the role of varying informational characteristics led to the irrelevance of some of the findings of traditional economics, recognition of the role of transaction costs (which include information costs as a subset) cast shadow on the validity of most standard results of economic analyses. The suggestion here to comprehend the relevant TC and assess alternatives along a feasible set of organizational arrangements, recognizing the roles of adaptation and adaptive efficiency at all stages of corporate governance.

References


Hayek, F. 1945, The use of knowledge in society, American Economic Review, 35, 519-530.
Williamson, O. E., 1996, The Mechanisms of Governance, New York: Oxford University Press Winter, S. G., 2000.
The satisfying principle in capability learning, Strategic Management Journal, 21, 981-996.

Public Sector Enterprise Shares: Valuation and Disinvestment
by
R.K. Mishra & B. Navin
(R.K. Mishra is a Professor & Dean and B. Navin is a Research Associate at IPE, Hyderabad

The Balco case appears to have been settled with the Supreme Court preferring not to get into the merits of government's economic policies that are in the domain of the Parliament. The court also gave a clean chit to the Government for the manner in which the disinvestments was conducted. But this does not necessarily mean that the method of valuation was robust and unassailable. The judgment does not set at rest the valuation formula to be pursued in the disinvestments process. There are arguments that the "best value" arising from a basket of valuation methods, would be the most appropriate as argued by Prof. R.K. Mishra of IPE in the following note. Yet, the practicability is questionable when there is little market for the shares to be disinvested and the costs of foregone opportunities are high.

We welcome debate on this.


Editor

Backdrop

M/s S. T. Raja, Mumbai, was appointed as a consultant to undertake valuation of public sector enterprises (PSEs) shares during the initial two rounds of disinvestments. M/s S.T.Raja suggested three approaches to disinvestment; net asset value method, discounted cash flow method, and the current cost method. From the third round onwards, the valuation was undertaken by SBI capital Markets Limited and the Industrial Development Bank of India (IDBI). Later, the Industrial Credit and Investments Corporations of India Ltd. (ICICI) was also asked to associate itself with the exercise. The SBI Capital Markets Ltd., IDBI and the ICICI Ltd., preferred the fair value method'. The Comptroller and Auditor General of India (CAG) requested to refine the valuation methodologies and called for an incorporation of 'claw back' clause in the valuation agreement according to which the Government Of India would have become eligible to share price appreciation benefits in the case of the share price appreciation benefits in the case of the share prices rising above the agreed level. The Disinvestment Commission stressed on 'Due Diligence' based negotiation in valuation during the period 1996-97 and suggested the induction of strategic partner in privatization of public enterprises to receive enhanced value from sale of shares to be done in more than one slot. For enhanced valuation, the Disinvestment Commission also suggested appointment of Global Advisors. The Department of Disinvestment has by and large followed the recommendations of the Disinvestment has by and large followed the recommendations of the Disinvestment Commission. The valuation exercise of the Modern Food Industry (India) Ltd and Bharat Aluminum Company Ltd shows that besides involving the government valuers, the Global Advisors have participated in the exercise which among other things, have give due consideration to brand valuation, business prospects, financial status and unlocking the value of idle assets.

Methods of Valuation

The issue of share valuation assumed controversial dimensions since the first tranche of disinvestments and it continues to elude consensus. Recently, a suggestion has been made that valuation of assets should become the focal point of disinvestments in the case of sick PSEs. The Controller of Capital Issues found the Net Asset Value (NAV) method the best in his wisdom. However, the investment bankers, valuation experts and financial decision makers advocate a myriad of techniques to value shares. The Comptroller and Auditor General (CAG) of India questioned the applicability of NAV method in the valuation of shares of 30 PSEs whose shares were disinvested in the first two trenches. A new approach named the Best Value (BV) method was mooted by the first author and was supported by the CAG. This new approach suggested the valuation of shares of PSEs to be divested in terms of all possible methods and finally selecting that method which yields maximum value.

Now when the disinvestments is proposed to be an important source of funding the government's socioeconomic programmes, a considered thought should be given as to how to value the shares of PSEs to be divested. This will result in the realization of best values to the government, make valuation exercise transparent and discourage any undue criticism.

The methods of share valuation could be listed under three categories viz., asset oriented valuation methods, income oriented valuation methods and integrated valuation methods. The asset oriented valuation methods broadly include net tangible assets method, replacement value of net assets method and realizable value of net assets method. The earnings oriented methods comprise capitalization of historical earnings, capitalization of earnings based on PE ratios, discounted cash flow and profit earnings capacity value. The integrated stream consists of market value method, face value plus interest method, fair value method and dividend valuation method.

The net tangible asset method also known as the NAV method is the most frequently used method of valuation. In this method the net tangible assets per share is arrived at by dividing the net tangible assets by the number of shares with the company. The assets are valued in order to make the valuation realistic. However, the major limitation of this method is seen in the fact that it provides little or no indication of potential earnings or future competitive strength. This method is of relevance in the case of acquisitions, divestitures of a financial enterprise or businesses consisting primarily of liquid assets. This method is not suited to manufacturing PSEs as it gives no weightage to the growth factor in business. The replacement value of net assets method determines the current cost of replacing an enterprise's net assets. This method does not differentiate between projects on stream and grass root projects.

It does not provide any weightage to the collaborations with the known parties and quality of trained manpower. This method is relevant to the valuation of equity of manufacturing PSEs, which have considerable investments in fixed facilities. The operationalisation of this method posed serious problems of measuring the various costs of setting up the plant and the time frame for their determination. The realizable value of net assets method basically determines the net proceeds after expenses of selling the assets of an enterprise at their fair market values and satisfying all liabilities and paying taxes. Barring sick enterprises, this method does not have much relevance in the case of PSEs as they are going concerns.

The capitalization of historical earnings is the most commonly applied method for valuing a manufacturing business. It requires determination of the seller's earnings and the appropriate capitalization rate. This method suffers from a backward looking orientation. Moreover, accounting approach is followed to determine the earnings as compared to cash flows, which are a more logical element than earnings in valuing business. This method of valuation does not hold good for PSEs incurring losses, which are very dominant in number. The capitalization of earnings method uses the PE ratio of other comparable enterprises or the industry as a multiplier of earnings in determining the divestiture price. The major limitation of this method is selection of a comparable firm in public/private sector. It is an advancement over the NAV method as it brings in the concept of average market price and aligns capitalization of earnings to the market conditions. It ensures a reflection of future expectations as assessed by the market itself. This method is largely unsuitable for PSEs in India, as a vast majority of them are not listed on the stock exchanges. The discounted cash flow method considers the sustainability of future earnings of business. In the case of PSEs having large investments, this method reflects the genuine valuation of its shares as such units are undervalued and are expected to become profitable and earn cash profits in the future with appropriate changes in their management. The profit earning capacity value method capitalizes the average of profits after tax; say for three years for the valuation of shares. This method is suitable only for such PSEs, which have been earning profits and are involved in manufacturing and trading activities.

The market valuation method is the most popular one but it can be used only in such cases where the enterprises are listed in one or more stock exchanges. PSEs have made a small beginning in this regard. Despite several concessions extended by SEBI, many disinvested enterprises have yet to list their shares in one or mores stock exchanges. As per this method, the market value acts as a guiding factor valuation of shares. The underlying principle is that the market presents a genuine assessment of the managerial and economic strengths of an enterprise through pricing its scrip's on day-to-day basis. However, it is argued that such price can always be manipulated with the help of information that insiders have about the probable course, which is likely to take place in respect of ownership transfer of an enterprise. Face value plus interest method values the equity shares of a firm by taking into consideration its total investment at the time of initiation of the business and by adding to it an equivalent of 15 percent as rate of interest every year. It is not useful in the case of PSEs having a negative net worth. The fair value method is a combination of NAV and PECV. PSEs with low profits need to value with the help of this method. The dividend valuation method rests on the premise that the price of a share of an enterprise is the present value of the future expected dividends of the enterprise discounted at a capitalization rate of its applicability to PSEs. Firstly, shares of only a few PSEs are being traded on the stock exchanges. Secondly, a large number of profit-earning PSEs have eschewed declaration of dividends. Thirdly, a significant chunk of PSEs have been incurring losses year after year.

To conclude

Thus, it is clear that no one method of share valuation could meet the requirements of the situation. A basket of techniques need to be used to arrive at a fairly reliable estimate. The most appropriate strategy could be to compute the share value as per the various methods and realize proceeds based on the 'best value', which is nothing, but the method yielding the maximum proceeds.

 



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