SHIFTING OF REGISTERED OFFICE FROM ONE STATE TO OTHER
SHIFTING OF REGISTERED OFFICE FROM
ONE STATE TO OTHER
Meaning of Registered Office:
A registered office is the official address of a
company to which all official letters and reminders will be sent by any person,
any government or non government or regulatory body. In terms of Section 7 of
the Companies Act, 2013 (the “Act”), all registered companies are legally
required to have a registered office address in India from the date of
commencement of business or within fifteen days from the date of incorporation
whichever is earlier. However, under the incorporation process effective as on
date, the proposed company is required to intimate the address of its proposed
registered office t the time of incorporation itself.
Usually a registered office is situated where most
of the stakeholders reside. The only reason being is for their convenience.
However sometimes it happens so that the registered office needs to be shifted
to another place for better management of the company. The shifting can be
within the local limits of same city, outside the local limits within same
city, from jurisdiction of present ROC to jurisdiction of another ROC (in
Maharashtra and Tamilnadu1) and sometimes, from one state to another.
Out
of State Shifting of the Registered Office under the Companies Act, 2013
Provisions relating to shifting of the registered office from one state to
another are contained in Section 13(4) of the Companies Act, 2013 which are
detailed in the rule 30 of The Companies (Incorporating) Rules, 2014. In the
present article, this procedure has been given in a step by step manner for
easy understanding of the readers.
BELOW
WE DISCUSS THE DETAILED PROCEDURE FOR SHIFTING OF REGISTERED OFFICE OF A
COMPANY STEP BY STEP:
A. Call
and Hold a Board Meeting:
§ To consider the proposal for
shifting of registered office.
§ Fix up the date, time, and place
of the General Meeting.
§ Approve the notice of
Extraordinary General Meeting and calling of General Meeting.
§ Authorize the CS or Director to
move an application before RD to alter Clause II of Memorandum of Association
within whose jurisdiction the registered office of the company (before change)
is situated.
§ The Board shall authorized the
Director and the Secretary severally to see that the consent of the Creditor
and debenture holders if any etc. is obtained or that sufficient provisions is
made for the discharge of their debts or adequate security is made section
13(5).
B. Send Notice of general meeting to
all members along with Explanatory Statement (Section-102), Proxy Form, Route
Map and Attendance Slip.
C. Hold General Meeting and Pass the Special Resolution approving the
shifting subject to the approval of the RD.
D. Prepare the Minutes of
Extraordinary General meeting/ General Meeting.
E. After taking the approval of the
members, file a certified copy of the special resolution along with the
explanatory statement and altered copy of MOAwithin 30 days of passing of
Special Resolution in form MGT-14 (Filling of Resolution and agreement to the
registrar under section 117) with ROC.
Attachments: (Attachments of e-form MGT-14)
ü
Copy(s)
of Special Resolution(s) along with copy of explanatory statement under section
102.
ü
Altered
Memorandum of Association [MOA].
ü
Minutes
of EGM.
ü
Shorter
Notice consent if any.
F. Publication
of Notice in News Paper:
Publish
a notice in Form No.INC.26, at least once vernacular newspaper in the principal
vernacular language in the district in which the registered office of the company
is situated, and at least once in English language in an English newspaper
circulating in that district.
G. Prepare
a list of CREDITORS and DEBENTURE HOLDERSand intimate them accordingly.
ü The list is required to be filed
with the application.
ü The list should be duly verified
by an affidavit.
ü List should be verified by the
Statutory Auditor of the Company.
ü The list should not precede the
date of filing of petition by more than one month (List Should not be older
than one month from filling of petition).
List Contain the Information:
ü The names and address of every
creditor and debenture holder of the company;
ü The nature and respective amounts
due to them in respect of debts, claims or liabilities:
ü
AFFIDAVIT:
As
per Rule 30 Sub Rule (2) of The Companies (Incorporation) Rules, 2014 (Affidavit
should be signed by the Company Secretary of the Company, if any and not less
than two directors of the Company, one of whom shall be managing Director,
where there is one, to the effect that they have made a full equity into the
affairs of the company and, having done so, have formed an opinion that the
list of creditors is correct, and that the estimated value as given in the list
of the debts or claims payable on the contingency or not ascertained are proper
estimates of the values of such debts and claims and that there are no other
debts of or claims against the company to their knowledge)
H. Prepare
List of Employees:
The
Application on affidavit from the directors of the company that no employee
shall be retrenched as a consequence of shifting of the registered office from
one state to another state.
I.
Prepare List of Application:
Company
will prepare the application for shifting of Registered Office along with the
required documents.
J.
Prepare
an Application in and all relevant annexure to be filled with the Regional
Director for seeking approval for shifting of the registered office from one
state to another.
K. Send a copy of the application
with complete annexure to the Registrar (Roc)
And Chief Secretary of the State where the registered office is
situated at the time of filing the application and obtain acknowledgment for
sending the notice.
L. The Original Application
U/s 13(4) along with all Necessary Annexure for seeking approval of the Central
Government for shifting of Registered office from one State to another shall be
filed in Form- INC-23 along with the fee and the following
documents:-
a. A copy of the Memorandum And
Articles Of Association;
b. Certified True Copy of Board
Resolution.
c. A copy of the Notice Convening
The General Meeting along with relevant Explanatory Statement;
d. A copy of the Special Resolution
sanctioning the alteration by the members of the company; (if possible
supportive by Attendance sheet)
e. A copy of the Minutes of The
General Meeting at which the resolution authorizing such alteration was passed,
giving details of the number of votes cast in favor or against the resolution;
f.
An
Affidavit Verifying the application (On Stamp Paper duly notarized)
g. The List of Creditors and
Debenture Holders entitled to object to the application;
h. An Affidavit Verifying The List
of Creditors; (On Stamp Paper duly notarized)
i.
The
document relating to payment of application fee;
j.
Copy
of News Paper Advertisement.
k. Affidavit verifying
non-retrenchment of employees
l.
Affidavit
verifying the Publication of News Paper Notice.
m. Memorandum of Appearance and
Board resolution authorizing company secretary / Chartered Accountant or
advocate
n. A copy of Board Resolution Or
Power Of Attorney or the executed Vakalatnama, as the case may be (in the
favour of Professional)
o. An Affidavit verifying the list
of Employees.(On Stamp Paper duly notarized)
p. Copy of the latest audited
balance sheet and profit and loss account of the company along with auditors’
and directors’ report.
q. Affidavit proving the dispatch
and service of notice to the Chief Secretary.
r.
Board
resolution authorizing the director to submit the petition.
s.
Form MGT-14 along with paid challan.
v
The
Petition along with the Enclosure should be Serially Numbered. And scanned copy
of the petition is filed in Form INC-23 and a Hard Copy of the petition is submitted
to the Concerned
Regional Director Office in form GNL-1
v
AFFIDAVIT: An affidavit verifying the petition on a non
judicial stamp paper, which is notarized, shall be attached. Five affidavits are to be given
along with the petition.
i.
One
affidavit is verifying the petition;
ii.
One
affidavit is verifying publication of notice
iii.
One
affidavit verifying the creditors.’
iv.
One
affidavit verifying the Non retrenchment of Employee
v.
One
Affidavit from Director in terms of rules
vi.
One
Affidavit from Director that there is no enquiry, inspection, investigation and
prosecution is pending against the Company
Where
the third & Fifth affidavit shall be given by two directors of the
company.
v
Petition should not be prepared
in the letter head.
M. After checking of application
with Annexures the hearing will take place at the Regional Director office and
it should be represented by the company or practicing professional or advocate.
The creditors, if any and the representatives of the company may also represent
and are heard before making any order.
N. Power
to Inspect:A
duly authenticated copy of the list of the creditors shall be kept at the
registered office of the company and any person desirous of inspecting the same
may at any time during the ordinary
hours of business, inspect and take extracts of the same on the payment of a
sum not exceeding ten rupees per page to the
company.
O. Objection
if Any Received:
Where
any objection of any person whose interest is likely to be affected by the
proposed application has been received by the applicant, it shall serve a copy
thereof to the Central Government on or before the date of hearing.
P. Where
No Objection Is Received:
If no objection is received from
anybody, Central Government (Regional Director) will confirm the change of
registered office on the date of hearing and put the application for necessary
orders. If any objection is received, Central Government will, before passing
any order, ensure that the company has either obtained consent of the person
who had objected to the alteration or his debt or claim has been discharged or
has determined, or has been secured to the satisfaction of the Central
Government.
Q. The Regional Director will make
an order confirming the alteration on such terms and conditions, if any, as it
thinks fit, and may make such order as to costs as it thinks proper:
R. Obtain certified copies of the
order confirming the shifting of registered office from one state to another,
passed by the Central Government,
18) File e-form INC-28 with ROC
within 30 days of confirmation of shifting by Central Government
along with following Documents:
i.
Confirmation
given by Central Government for change of registered office.
19) File e-form INC-22
with ROC within 15 days of confirmation of shifting by Central
Government along with following Documents:
a.Registered document of the title
of the premises of the registered office in the name of the company; or (b)
Notarized copy of lease / rent agreement in the name of the company along with
a copy of rent paid receipt not older
than one month;
b.Authorization
from the owner
or authorized occupant of the premises along with proof of Ownership or
occupancy authorization, to use the premises by the company as its registered
office.
c.Document of connection of any utility service like telephone, gas, electricity, etc.
depicting the address of the premises in the name of the owner/document as the
case may be which is not older than
2 months.
d.The list of all other companies
with their CIN, having the same unit/tenement/premises as their registered
office address.
e. NOC from the owner of premises.
If
the documents are in order, Registrars of both states will approve the forms
and registered office change will be updated in register of Registrar and new Certificate of Incorporation will be
issued by the Registrar of the State within 30 days, where the company's
registered office is going to be shifted.
STEPS AFTER OBTAINING NEW CERTIFICATE FROM ROC:
§
Make
alteration in the MOA with respect to the state in every copy of Memorandum.
§
Each
stationery, banner, signboard, bills, invoice etc. should show the new address
and necessary advice should be sent to shareholders, debenture holders, and
other concerned parties.
§
Necessary
changes are required to be made in the letter heads, books, records etc. of the
company. The necessary changes are required to be made in PAN. TAN and ST2 etc
and inform to all the Government departments, banks, customers and others
wherever required.
Tail Piece: Provided that the shifting of registered office
shall not be allowed if any inquiry, inspection or investigation has been
initiated against the company or any prosecution is pending against the company
under the Act.
* Proof of Registered Office Includes:
ü
Conveyance
ü
Lease
Deed
ü
Rent
Agreement (along with rent receipt not older than 1 (one) month.
* Utility Bill:Depicting the address of the premises in the name
of the owner and documents
Should note be older than 2 (Two) months.
ü
Telephone
Bill
ü
Gas
Bill
ü
Electricity
Bill etc
VERIFICATION OF REGISTERED OFFICE:
(Rule- 25 of the Companies (Incorporation) Rules,
2014
I.
If Premises is
on the name of company: The registered document of the
title of the premises of the registered office “in the name of company”.
II.
If Premises is
not on the name of company, not on rent and not on Lease: Than Authorization from the
owner of the premises + along with the proof of ownership and NOC in the favour
of Company for use of the premises by the company as its registered office.
III.
If premises is
taken on Lease:
The Notarized Copy of Lease deed in the name of the company along with
a copy of rent paid receipt not older than one month.
IV.
If premises
taken on Rent:
The Notarized Copy ofRent Agreement in the name of the company along
with a copy of rent paid receipt not older than one month.
(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.
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