CS Divesh Goyal

The Companies (Incorporation) Third Amendment Rules

The MCA amend the Companies Incorporation Rules by Notification dated : 27.07.2016. This rules may be called Company (Incorporation) Third Amendment Rules, 2016

Rule No.Earlier ProvisionsAmended RulesEffects of Amendment
Rule 3(2)

Substituted

No person shall be eligible to incorporate more than a One Person Company or become nominee in more than one such company.A Natural person shall not be member of more than a One person Company at any point of time and the said person shall not be nominee of more than a One Person company”Earlier a person can only be member of OPC or nominee of OPC. Earlier a person can’t be Nominee of a OPC and Member of a OPC.

But after amendment rules a person can be Nominee in one OPC and member in one OPC simultaneously.

Rule 8(2)(ii)

Substituted

it includes the name of a registered trade mark or a trade mark which is subject of an application for registration, unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters;it includes the name of a registered trade mark or a trade mark which is subject of an application for registration under the Trade Marks Act, 1999 and rules framed thereunder, unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters;There is no such effect of substitution.
Rule 8(6)(n)

Removal of ,

The following words and combinations thereof shall not be used in the name of a company unless the previous approval of the Central Government has been obtained for the use of any such word or expression- Financial, Corporation and the like;The following words and combinations thereof shall not be used in the name of a company unless the previous approval of the Central Government has been obtained for the use of any such word or expression- Financial Corporation and the likeEarlier for using of work Financial or Corporation approval of Central Government was mandatory.

But after removal of ‘,’ approval of Central government required for approval of word “Financial corporation” not Financial or Corporation.

Rule 13(2)

Add Explanation

(1) The memorandum and articles of association of the company shall be signed by each subscriber to the memorandum, who shall add his name, address, description and occupation, if any, in the presence of at least one witness

(2) Where a subscriber to the memorandum is illiterate, he shall affix his thumb impression or mark which shall be described as such by the person, writing for him, who shall place the name of the subscriber against or below the mark and authenticate it by his own signature

For the purpose of sub-rule (1) and sub rule (2) the type written or printed particulars of the subscribers and witness shall be allowed as if it is written by the subscriber and witness respectively so long as the subscriber and the witness as the case may be appends his or her signature or thumb impression, as the case may be”Earlier it was mandatory for the subscriber to written his name, address, description etc by hand writing, if literate.

If subscriber is not literate, then a person in his presence writing for him.

But by the adding of the explanation.

Now the “Type Written” or “Printed” particulars of the subscriber and witness shall be allowed. If subscriber or the witness appends his or her signature or thumb impression.

Rule 16(1)(m)

Add explanation

The following particulars of every subscriber to the memorandum shall be filed with the Registrar-

Proof of Identity:

In case the subscriber is already holding a valid DIN, and the particular provided therein have been updated as on the date of application and the declaration on this effect is given in the application, the proof of identity and residence need not be attached.

Earlier it was mandatory for the subscriber to file his ‘proof of identity’ while incorporation of Company.

But by the adding of the explanation

If the subscriber holding din and same has been updated on MCA “there is no need to attached proof of identity in the incorporation form”.

Rule 16(1)(q)

Omitted

the promoter or first director shall self attest his signature and latest photograph in Form No. INC-10.]OmittedAs per the Omission there is no need to attached INC-10 for Director and Promoters for Incorporation of Company.
Rule 26

Substituted

No such provision earlier

The Central Government may as and when required, notify the other documents on which the name of the company shall be printed.

Every Company which has a website for conducting online business or otherwise, shall disclose/ publish its name, address of its registered office, the CIN, Tel No, Fax No. if any, email and the name of person who may be contacted in case of any queries or grievances on the landing/ home page of the said website.

The Central Government may as and when required, notify the other documents on which the name of the company shall be printed.

Earlier there was no such provision.

Effect of substitution:

Now It is “mandatory for all the companies” which have website to disclose all the details mentioned below on the home page of the website:

– Name

– Registered Office

– CIN

– Tel No.

– Fax if any

– Email ID

– Name of Person to contact for Query and Grievance

Rule 28(2)

Add Proviso

Provided further 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.Provided also that on completion of such inquiry, inspection or investigation as a consequence of which no prosecution is envisaged or no prosecution is pending, shifting of registered office shall be allowed.

It is just a clarification.

After insertion of this proviso:

On completion of inquiry, inspection or investigation shifting of registered office shall be allowed.

Rule 29(1)

Addition of Proviso

(1) The change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or debentures.Provided that a change of name shall be allowed upon filing necessary documents or payment or repayment of matured deposits or debentures or interest thereon as the case may be.

It is just a clarification.

After insertion of this proviso:

On completion of pending annual filing or payment of matured deposit or debenture or interest there on shifting of registered office shall be allowed.

Rule 30(1)(i) Add (j)New AdditionA copy of the NOC from the RBI where the applicant is a registered NBFCThis is new addition. That NOC from the RBI is also required in case of NBFC Company.
Rule 30(6)(c)

Removal or word

The company shall at least fourteen days before the date of hearing- serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force.The company shall at least fourteen days before the date of hearing- serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force.After Removal of “to the Securities and Exchange Board of India, in the case of listed companies”

No need to serve notice to SEBI for shifting of registered office.

Rule 30(10)

Add explanation

 

Provided further 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.Provided also that on completion of such inquiry, inspection or investigation as a consequence of which no prosecution is envisaged or no prosecution is pending, shifting of registered office shall be allowed.

It is just a clarification.

After insertion of this proviso:

On completion of inquiry, inspection or investigation shifting of registered office shall be allowed.

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)

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