PROCESS OF INCORPORATION OF COMPANY (SPICE FORM)
Ministry
of Corporate Affairs (‘MCA’) has came with new rules for Incorporation of
Company under Companies Act, 2013 with simplified procedure (SPICe).
An significant step is taken by Ministry of
Corporate Affairs by introduce e-form INC-32 under SPICe scheme vide MCA's
notification dated 01/10/2016 notifying Companies (Incorporation) Fourth
Amendment Rules, 2016. SPICE means Simplified Performa for
Incorporating Company Electronically.
The SPICE form was introduced with a function to
prepare e-Moa & e-Aoa (Electronic MOA/ AOA).
This facility is first time providing by the Ministry in the history of India
for Incorporation of Company via this attribute there is no opportunity to
prepare the manual MOA & AOA and no option to physically sign the MOA &
AOA by subscribers and witness
Simplified
Performa for incorporation of Companies Electronically (SPICE )
[1]New
Rule No. 38 has been inserted by Company (Incorporation) Fourth Amendment Rules,
2016 w.e.f. 02.10.2016.
[2]Ministry
has come with amendment in Rule 38 Companies (Incorporation) Fifth Amendment
Rules, 2016 dated 29th December, 2016.
Single Window Form:
Earlier if a Person wants to incorporate Company
then it has to apply for the DIN, Approval of the Name Avaibility, Separate
form for first Director, Registered office address, PAN, TAN etc. But this form
is a single window for Incorporation of Company.
This form can be used for the following purposes:
Ñ Application of DIN (upto 3 Directors)
Ñ Application for Avaibility of Name
Ñ No need to file separate form for first Director
(DIR-12)
Ñ No need to file separate form for address of
registered office (INC-22)
Mandatory to file e-Form inc-32–
This form available on MCA w.e.f. 03.10.2016.Ministry
has moved toward with notification dated 29thDecember, 2016 by this
notification Companies can be incorporated only by following forms:
i.
One Person Company =
INC-32 (SPICe )
ii.
Private Limited Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
iii.
Public Limited Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
iv.
Section 8 Company(with7 or less than 7 subscribers) = INC-32 (SPICe )
v.
Producer Company (with7 or less than 7 subscribers) = INC-32 (SPICe )
vi.
Producer Company (with more than 7 subscribers) = INC-7
vii.
Company with foreign Subscribers (up to 7) =
INC-32 (SPICe )
*According to the
above notification, the Companies which arerequisite to be incorporated through
INC-32 can’t be incorporated by filing e-form INC-7 on or after 29th
December, 2016. Hence, it is obligatory to file e-form INC-32 (SPICe ) for
Incorporation of Company w.e.f. 29th December, 2016.
Features of SPICe (inc-32) form:
Ñ Maximum details of [4]subscribers
are SEVEN (7). In case of more subscribers, follow the normal incorporation
procedure in INC-7.
Ñ Maximum details of directors are TWENTY (20).
Ñ Maximum THREE (3) directors are allowed for filing
application of allotment of DIN while incorporating a Company.
Ñ Person can apply the Name also in this form.
Ñ By affixation of DSC of the subscriber on the
INC-33 (e-moa) date of signing will be appear automatically by the form.
Ñ Applying for PAN / TAN will be compulsory for all
fresh incorporation applications filed in the new version of the SPICe form.
Confusion
in SPICe (inc-32) form:
Ñ How to apply for Incorporation of Company with
Foreign Subscribers, without violating the Rule 13 of the Companies (Incorporation)
Rules, 2014.
Ñ If Name of a Company is already approved by INC-1
then whether company can apply for incorporation in e-form INC-32.
Ñ If both the person doesn’t have DIN No. whether
they can apply for the incorporation of Company. Or one person mandatorily
requires having DIN for filing of this form.
Ñ Whether producer company can be incorporated through
this form or not.
Ñ If a person want to incorporate through INC-7
whether they can do or no.
In this article
I will share the comparison of Incorporation through SPICe Form in cut short.
In my next article I will take up the entire question mentioned above along
with some other questions:
Particular
|
Simplified Process of Incorporation of
Company
|
Normal Incorporation Process
|
Purposes
|
5-in-1 form
|
N. A.
|
No. of Form Filing
|
1
(ONE)
|
5
(FIVE)
|
Steps of Incorporation
|
Single Step of Incorporation
|
Three Step Incorporation
|
Form Filing Requirement
|
Only one Form INC-32.
|
DIR-3-
Application for DIN (3 DIN)
INC-1
– Application for Name Approval
INC-7
– Incorporation of Company
DIR-12
– Appointment of First Directors
INC-22
– Situation of Registered Office
|
MOA & AOA
|
Electronic e-MOA
(INC-33) & e-AOA (INC-34) required filing in this case.
|
Only scan copy of
MOA & AOA can be attach in this form.
|
Digital Signature
|
DSC
of every subscriber required Mandatory.
The
subscribers and witness or witnesses shall affix their digital signatures to
the e-MOA and e-AOA
|
DIN
of both Subscribers Required.
|
Din Allotment
|
Maximum
3 Person can apply DIN through this process.
|
Separate
DIR-3 will be file for each person.
|
Narrower Name Proposal
|
Person
can give only One Name for Approval or can be file after INC-1
|
Person
has option to give alternate SIX Names.
|
Name Keeping
|
While
applying name applicant has to undertake necessary diligence regarding the
name keeping, considering the guidelines issued by MCA for Name approval.
Drawback:
Be sure for the proposed name, only one name can be given.
|
Person
has option to give maximum SIX names. Therefore, comparatively less diligence
requires.
|
Time frame
|
Their
approval of DIN, Name and Incorporation will be altogether.
Generally
it will take 1-2 days.
|
First
DIN form will approve generally it takes 1 day. Second Name will Approve,
generally it takes 7-10 days. Third Incorporation will Approve, generally it
takes 7- 10 days. Generally Incorporation of Company takes 20-25 days.
·
Apply
for DIN in DIR 3: It is a STP form DIN is generated in e-form Challan.
·
INC
1 takes 7-10 days for approval, maximum re-submission cases are there.
·
INC
7 takes 10-15 days for approval.
·
DIR
12 takes 1-2 days to get approved.
·
INC
22 gets approved in 2-3 days.
In
total 21-30 days.
|
Attachment of ID Proof
|
In
case of Director/Shareholders have DIN, then no need to attach separate
Address Proof/ ID Proof.
|
In
case of Director/Shareholders have DIN, then no need to attach separate
Address Proof/ ID Proof.
|
Professional Certification
|
INC-32
requires Professional Certification.
No
Need to Attach INC-8 in this Form
|
No
need of professional Certification in e-form INC-7.
Need
to Attach INC-8 in this Form.
|
Resubmission
|
Two
resubmission are allowed
|
Only
one resubmission is allowed.
|
Refund Of Money
|
In
case of rejection of form, company can apply for refund of money by refund
form.
|
No
refund allowed.
|
PAN & TAN
|
PAN & TAN
applications mandatory to file and upload on MCA website.
|
No facility to
obtain PAN & TAN through this form.
|
Certificate of Incorporation
|
COI shall mention the PAN
of the Company
|
PAN will not mention on the COI.
|
Attachment
in SPICe -e (inc-32) form:
Ñ e-MOA & e-AOA required to be file as linked
form.
Ñ
INC-9 Affidavit
and declaration by first subscriber(s) and director(s) (on duly authorized
Stamp Papers).
Ñ DIR-2 declaration from first Directors along with
Copy of Proof of Identity and residential address.
Ñ NOC from the owner of the property.
Ñ Proof of Office address (Conveyance/ Lease deed/
Rent Agreement etc. along with rent receipts);
Ñ Copy of the utility bills (not older than two
months)
Ñ Declaration from the director non acceptance of
Deposit. (on duly authorized Stamp Papers).
Ñ
In case of
subscribers/ Director does not have a DIN, it is mandatory to attach:
Proof of identity and residential address of the subscribers
Ñ
E- 49A and 49B will be file on MCA
website (filed form will be generate by the SRN of INC-33)
Note:
Ñ Director has to give declaration at the end of the
form that he has checked the name on MCA website and Trade Mark Website.
Ñ DSC of Director will be affix on form. {In case of
director don’t have DIN then mention PAN No. of director at the place of
affixing of DSC)
Ñ DSC of professional will also affix on the form.
Ñ Only one name can be applied for approval in this
e-form. Therefore, one is advised to duly check the proposed name and follow
name availability guidelines, existing trademarks to avoid rejection.
Ñ MCA21 system will auto generate the pre-filled
application forms 49A (PAN) and 49B (TAN) after submission of SPICe, which the
stakeholders will be required to download, affix digital signature and then
upload both signed forms on MCA21 system as linked forms.
Ñ New version of SPICe incorporation applications
will be processed only after Forms 49A & 49B are duly signed, uploaded and
payment is confirmed by MCA
Ñ PAN (as allotted by Income Tax Deptt) will be
printed in the Certification of Incorporation, and TAN will be separately
communicated to the stakeholders by email
Ñ New version of SPICe form for all fresh
incorporation applications w.e.f 01 Feb 2017
(Author – CS DiveshGoyal, GOYAL DIVESH &
ASSOCIATES Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)
Disclaimer:
The
entire contents of this document have been prepared on the basis of relevant
provisions and as per the information existing at the time of the preparation.
Although care has been taken to ensure the accuracy, completeness and
reliability of the information provided, I assume no responsibility therefore.
Users of this information are expected to refer to the relevant existing
provisions of applicable Laws. The user of the information agrees that the
information is not a professional advice and is subject to change without
notice. I assume no responsibility for the consequences of use of such
information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION
WITH THE USE OF THE INFORMATION.
This is only a knowledge sharing initiative and author does
not intend to solicit any business or profession.
[3]
MCA21 system will auto generate the pre-filled application forms 49A (PAN) and
49B (TAN) after submission of SPICe, which the stakeholders will be required to
download, affix digital signature and then upload both signed forms on MCA21
system as linked forms.
[4]
Including both Indian and foreign subscribers.
PAN Card is very important document so we have to keep it with care because it is used in financial transaction and if any situation occur then we can apply for duplicate PAN card status to be aware with it
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