New rules for Shifting of Registered Office from one state to another

CS Shruti Bansal

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 MOA within 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)

√ Copy(s) of Special Resolution(s) along with copy of explanatory statement under section 102.

√ Altered Memorandum of Association [MOA].

√ Minutes of EGM.

√ Shorter Notice consent if any.

Publication of Notice in News Paper: Rule 30(5)

Publish an advertisement in Form No.INC.26 not more than 30 days before filing application in INC-23, at least once in 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.

Provided a copy of advertisement shall be served on the Central Government immediately on its publication
Serve, by registered post with acknowledgement due, individual notice, to the effect set out in clause (a) on each debenture holder and creditor of the Company

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.

Application List: Rule 30(1)

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 copy of Memorandum of Association, with proposed alterations;

√ a copy of the minutes of the general meeting at which the resolution authorising such alteration was passed, giving details of the number of votes cast in favour or against the resolution;

√ a copy of Board Resolution or Power of Attorney or the executed vakalatnama, as the case may be

List of Debenture holders and creditors & declaration: Rule 30(2)

There shall also be attached to the application a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than one month, setting forth the following details, namely:-

(a) the names and address of every creditor and debenture holder of the company;

(b) the nature and respective amounts due to them in respect of debts, claims or liabilities:

Provided that the list of creditors and debenture holders, accompanied by declaration signed by the company Secretary of the company, if any, and not less than two directors of the company, one of whom shall be a managing director, where there is one, stating that

(i) they have made a full enquiry into the affairs of the company and, having done so, have concluded that the list of creditors are corlect, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and clainrs and that there are no other debts of or claims against the company to their knowledge, and

(ii) no employee shall be retrenched as a consequence of shifting of the registered office from one state to another state and also there shall be an application filed by the company to the Chief secretary of the concerned State Government or the Union territory.

Power to inspect: Rule 30(3)

A duly authenticated copy of the list of 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 from the same on payment of a sum not exceeding ten rupees per page to the company.

Acknowledgement Copy: Rule 30(4)

There shall be attached to the application a copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.

As per Rule 30(6)

There shall be attached to the application a duly authenticated copy of the:

√ advertisement and notices issued under sub-rule (5),

√ a copy each of the objection received by the applicant, and

√ tabulated details of responses along with the counter-response from the company received either in the electronic mode or in physical mode in response to the advertisements and notices issued under sub-rule [5).

As per Rule 30(7)

Where no objection has been received from any person in response to the advertisement or notice under sub-rule (5) or otherwise, the application may be put up for orders without hearing and the order either approving or rejecting the application shall be passed within fifteen days of the receipt of the application.

As per Rule 30(8)

Where an objection has been received, the Central Government shall hold a hearing or hearings, as required and direct the company to file an affidavit to record the consensus reached at the hearing, upon executing which, the Central Government shall pass an order approving the shifting, within sixty days of filing the application.

where no consensus is reached at the hearings the company shall file an affidavit specifying the manner in which objection is to be resolved within a definite time frame duly reserving the original jurisdiction to the objector for pursuing its legal remedies, even after the registered office is shifted, upon execution of which the Central Government shall pass an order confirming or rejecting the alteration within sixty days of the filing of application.

As per Rule 30(9)

The order passed by the Central Government confirming the alteration may be on such terms and conditions, ifany, as it thinks fit, and may include such order as to costs as it thinks proper:

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.

As per Rule 30(10)

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”.

Sum up of attachments for INC-23

√ Copy of Memorandum of Association

√ Copy of special resolution sanctioning alteration

√ Copy of the minutes of the general meeting authorizing such alteration

√ Power of attorney/vakalatnama/Board resolution

√ A copy of the acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application as per Rule 30(4)

√ List of creditors or debenture holders as per Rule 30(2)

√ Declaration by directors verifying the creditors  as per proviso to sub rule (2) to Rule 30

√ Declaration by directors about no retrenchment of employees as per proviso to sub rule (2) to Rule 30

√ Copy of newspaper advertisement for notice of shifting the registered office in Form INC-26

√ Affidavit verifying the publication of notice in Form INC-26

√ Copy of notices issued under Rule 30(5) including Proof of service of the application to the Registrar, Chief secretary of the state, SEBI or any other regulatory authority (if applicable);

√ Copy of objections (if received any)

√ One Affidavit from Director that there is no enquiry, inspection, investigation and prosecution is pending against the Company

♦ Petition should not be prepared in the letter head.

As per Rule 31

Obtain certified copies of the order confirming the shifting of registered office from one state to another, passed by the Central Government, File e-form INC-28 with ROC within 30 days of confirmation of shifting by Central Government along with following Documents:

i. Order of confirmation given by Central Government for change of registered office.

As per Rule 27

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.

* Proof of Registered Office Includes:

√ Conveyance
√ Lease Deed
√ 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.

√ Telephone Bill
√ Gas Bill
√ 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 of Rent Agreement in the name of the company along with a copy of rent paid receipt not older than one month.