Process of incorporation of company - After Amendment Act
incorporation of company
Moving from
the Companies Act 1956 to the Companies Act 2013 is like
shifting from your old house to a new one. All the provisions become changed
with new Act, 2013. Due to new act many amendments were introduce by Central
Government from time to time by Notification, Amendments etc. Same like this
many amendments have been made in last approximately 4 years in relation to
Incorporation of New Company. Let’s look at the Journey of Major Amendments in
relation to Incorporation of Company since 1st April, 2014 to till
date i.e. 01st February, 2018.
Date
|
Journey So Far
|
01.04.2014
TO
30.04.2015
|
New forms for Incorporation Company Introduced
i.e.
INC-1 – Name Approval;
DIR-3 -
Director Identification Number
INC-7 – Incorporation of Company
DIR-12 – Appointment of Directors
INC-22 – Registered Office of Company
All the above mentioned 3 forms were required to
file for Incorporation of Company.
|
01.05.2015
TO
30.09.2016
|
Integrated Incorporation Process in form INC-29. This form was 5 in one form.
Company could apply DIN, Name, Appointment of Director, Registered Office and
Incorporation in single form with lesser ROC Fees. Still there was some
restriction in INC-29.
(like: if Company filed INC-1 for proposal of
name then it was not possible for the Company to file INC-29)
Note* Above mention route of INC-7 was also
available.
|
01.10.2016
TO
26.01.2018
|
Through Companies (Incorporation) Fourth
Amendment Rules, 2016 a new form “SPICE” i.e. INC-32 (Specified Performa for
Incorporation Company Electronically).
This form was one step ahead to INC-29. E.g.
Electronic MOA & AOA introduced in this Form. However, Company having
both the way they can apply name in SPICE or apply name in INC-1 then can
file Spice. PAN & TAN application become mandatory as part of the SPICE.
Note* Above mention route of INC-7 was also
available for some specific purposes
|
26.01.2018
|
This Date is revolutionary in the History of
Companies Act for the purpose of “Ease
of Doing Business”. Following Alteration made by Central Government:
i.
New
Process of Name Approval “RUN” notified and e-form INC-1 omitted.
ii.
INC-7
form omitted. Only way out for incorporation of Company is SPICE.
iv.
Updated
version of SPICE notified.
|
Another Alteration
|
Except the above mentioned amendment some other
amendments have been made since 01.04.2014 to till date e.g.
·
No
Requirement of Minimum Paid up share Capital.
·
No
requirement of DIN at the time of Incorporation of Company.
·
Only
one form for Incorporation of Company.
·
E-MOA
& AOA
|
Another Alteration Amendment Act, 2017
|
Except the above mentioned amendment some other
amendments have been made by Companies Amendment Act, 2017 e.g.
·
Name
approval shall be valid for 20 days from the date of approval.
·
No
Need of Affidavit in case of incorporation, only declaration shall be suffice.
·
Form
INC 22 for Registered office can be file within 30 days instead of 15 days
|
process of incorporation
STEP – I: Apply for Name Approval:
A.
Login on MCA Website
Applicant have to login
into their account on MCA Website. (Pro-existing users can use earlier account
or new users have to create a new account.)
After Login use have to
click on the icon “RUN” in MCA
Service. An online form shall be open. Applicants have to fill the information
online. (This form can’t be download)
Note* since 26th January, 2018 e-form INC-1
has been omitted from the Companies Act, 2013.
B.
Details required to be mentioned in online form:
(i) Entity
type (i.e. Part I, OPC, Section 8 etc.) (below table taken from MCA link: http://www.mca.gov.in/MinistryV2/runServicerFAQ.html)
(ii) CIN (Corporate Identification Number and it has to
be entered only when an existing company wishes to change its name and is
using RUN to reserve a new name)
(iii) Proposed name
(Auto Check Facility)
(iv) Comment (Mention Objects of the proposed Company
and any other relevant information Like Trade Mark etc.)
(v) Choose File (Any attachment)
C.
Choose File:
This option is available
to upload the PDF documents. If applicant want to attach any file, can be
upload at this option.
D.
Submission of Form on MCA Website:
After completion of
above steps user shall submit the Form with MCA website.
E.
Payment of Fees:
There is no option of
pay later challan in RUN. Applicant has to pay fees immediately after
submission of form. After payment challan shall be generated.
I.
Validity of Reserved Name:
Reserved
name shall be valid for 20 days from the date of approval of Name.
Quick Question - RUN
i.
Whether DIN or DSC required for filing of Run form?
DSC & DIN not required for filing of RUN form
for reservation of Name. Only account of MCA portal is mandatory.
ii.
How many resubmission options are allowed in RUN?
Only one
Resubmission of application is allowed in case of reservation of Name. After
that application either Approve or Reject.
iii.
What shall be the validity of the Name after approval?
i. Reserved
name shall be valid for 20 days in case of allotment of name for New Company.
ii. Reserved
name shall be valid for 60 days in case of allotment of name for existing
Company (Change of Name).
iv.
How many name can be apply through this form?
Two Names can be mentioned in RUN form. Earlier
INC-1 allowed 6 names according to the preference.
v.
What shall be the government fees for RUN?
As per Register office Fees Rules, Fees shall be
Rs. 1,000/-
vi.
Is it mandatory to attach documents while reserving name?
No.
It is mandatory to attach relevant documents and No
Objection Certificates(NOCs) only when a name which requires the
approval of a Sectoral Regulator or NoC etc. if applicable, as per the
Companies(Incorporation) Rules, 2014, is being applied for.
Please note that only one file is allowed to be
uploaded as an attachment and the size of the file should not exceed 6MB. In
case of multiple attachments, please scan all documents into a single file not
exceeding 6MB in size, and then upload the same.
vii.
Whether there is any requirement to mention details of Directors in the
RUN?
No, there is no need to mention the name or number
of proposed Directors in RUN.
NOTE:
* Approval of Name through “RUN” is an optional way. Companies can also directly
apply for the Name in SPICE form.
STEP – II: Preparation of Documents for Incorporation of Company:
After approval of name or for Incorporation of Company applicant have to
prepare the following below mentioned Documents;
Ñ
INC-9
sDeclaration 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
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
All
the Subscribers should have Digital Signature.
STEP – III: Fill the Information in Form:
Once all the above mentioned documents/ information are available. Applicant
has to fill the information in the e-form “Spice” INC-32.
Features of SPICe (inc-32) form:
· Maximum
details of subscribers are SEVEN (7). In case of more subscribers, physically
signed MOA & AOA shall be attaching in the Form.
· Maximum
details of directors are TWENTY (20).
· Maximum
THREE (3) directors are allowed for filing application of allotment of DIN
while incorporating a Company.
· Person
can apply the Name also in this form.
· By
affixation of DSC of the subscriber on the INC-33 (e-moa) date of signing will
be appear automatically by the form.
· Applying
for PAN / TAN will be compulsory for all fresh incorporation applications filed
in the new version of the SPICe form.
· In
case of companies incorporated, with effect from the 26th day of January, 2018,
with a nominal capital of less than or equal to rupees ten lakhs or in respect
of companies not having a share capital whose number of members as stated in
the articles of association does not exceed twenty, fee on INC-32 (SPICe) shall
not be applicable
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 f 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)
Ñ
No
need to file separate form for PAN & TAN
Quick Question - SPICE
viii.
How to file the SPICE form in case of more than 7 subscribers in the
Company?
In case of incorporation of a company having more
than 7 subscribers, MOA & AOA shall be filled with INC 32 in the respective
format as specified in Table A to J in Schedule I without filing form INC 33
and INC 34. (Means Physical attachment of MOA & AOA in e-form INC 32)
ix.
Whether e-MOA & AOA can be file in case of MOA & AOA is signed
by a person at a place outside of India?
In case
of incorporation of a company where any of the subscribers of the MOA/AOA is signing at aplace outside India,
MOA & AOA shall be filled with INC 32 in the respective format as specified
in Table A to J in Schedule I without filing form INC 33 and INC 34. (Means Physical attachment of MOA & AOA
in e-form INC 32)
x.
Whether Companies are required to make payment of Stamp Duty in case of
incorporation of Company with authorized Capital of Rs. 10 Lakh or below?
Yes, Company has to pay the Stamp Duty. Because
Stamp Duty is state matter. Companies Act, has given exemptions for the ROC
fees not for the stamp duty.
xi.
How many DIN can be apply through SPICE Form?
Maximum 3 (Three) DIN can be apply through SPICE
form.
If applicant want to incorporation Company with
more than 3 Directors and more than 3 persons doesn’t have DIN. In such
situation applicant have to incorporate Company with 3 Directors and have to
appoint new directors later on after incorporation.
xii.
How many Name can be apply through SPICE Form?
Two (2) Name can be apply through SPICE form.
In case after filing of e-form, due to non
Avaibility of name form came for resubmission. In such case applicant have to
propose new name and have to alter the name on all the attachment of the Form.
STEP – IV: Preparation of MOA & AOA:
After proper
filing of SPICE form applicant has to download the e-form INC-33 (MOA) and
IN-34 (AOA) form the MCA site. After downloading of form fill all the
information in the forms as per requirement of Table A to J of Schedule I.
After
completely filing of the form affix DSC of all the subscribers and professional
on subscriber sheet of the MOA & AOA.
STEP – V: Fill details of PAN
& TAN:
It is
mandatory to mention the details of PAN & TAN in the Incorporation Form
INC-32. Link to find out of Area Code to file PAN & TAN are given in Help
Kit of SPICE Form.
STEP – VI: Submission of
INC-32,33,34 on MCA-:
Once all
the 3 forms ready with the applicant, upload all three documentas Linked form
on MCA
website and make the payment of the same.
STEP – VII: Certificate of
Incorporation-:
Incorporation
certificate shall be generating with CIN, PAN & TAN.
Quick Question - SPICE
xiii.
Whether there is need to file any separate form for PAN & TAN?
No need to file any separate form. Details in
relation to Area Code and other details shall be mention in the form INC-32
itself and PAN & TAN shall be generate with Certificate of Incorporation.
xiv.
Whether e-MOA & AOA can be file in case of MOA & AOA is signed
by a person at a place outside of India?
No, In such situation applicant have to file the
physically signed copy of MOA & AOA (Appostile) in their respective formats
in Table A to J of Schedule I.
CAUTION TO BE TAKEN BY PROFESSIONALS
1.
Obtain
engagement letter from subscriber: - As per certification in
e-form DIR-12 & INC-22, a professional declares that he has been engaged
for the purpose of certification Therefore it is advisable to obtain an
engagement letter.
2.
Verification
of original records pertaining to registered office:
- As per certification in e-form INC-22, a professional declares that he has
verified all the particulars(including attachments) from original records.
3.
Ensure
all attachments are clear enough to read:
- As per certification in e-form DIR-12 & INC-22, a professional declares
that all attachments are completely and legibly attached.
4.
Ensure
registered office of the company is functioning for the business purposes of
the company:
- - As per certification in e-form INC-22, a
professional declares that he has personally visited the registered office.
5.
Take a declaration to the
effect that all the original documents have been handed over after
incorporation. Since as per section 7(4) copies all documents/information as
originally filed should be preserved at the registered office of the company,
therefore a professional should take a declaration while handing over the
incorporation documents.
6.
MCA
Circular 10/2014:
- According to this circular ROC/RD in case of omission
of material fact or submission of false/incomplete/ misleading information can
after giving opportunity to explain refer the matter toe-governance division of
MCA, which in turn may initiate proceedings under section 447 and/or ask the
respective professional institute to take requisite disciplinary action.
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.
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