Under the newly introduced Companies (Amendment) Ordinance 2018, all companies registered in India after the commencement of the Companies (Amendment) Ordinance, 2018 and having a share capital is required to obtain commencement of business certificate before commencing any business or exercising any borrowing powers. Since The Companies (Amendment) Ordinance 2018 was introduced in November 2nd 2018, any company incorporated after November 2018 would be required to obtain Commencement of Business Certificate.

 ‘Commencement of Business’ this concept was there in the erstwhile Companies Act, 1956 and it was also introduced by the Companies Act, 2013 under the Section 11 of the Companies Act, 2013. However, section 11 was omitted (deleted) LATER ON by the companies (Amendment) Act, 2015 w.e.f. 29th May 2015.

Declaration for Commencement of business is re-introduced by way of inserting a new Section 10A after section 10 of the Companies Act, 2013. The DETAIL of Section 10A is as follow;

Extract of Section 10A. Commencement of business etc.

(1) A company incorporated after the commencement of the Companies (Amendment) Ordinance, 2018 and having a share capital shall not commence any business or exercise any borrowing powers unless—

(a) a declaration is filed by a director within a period of one hundred and eighty days of the date of incorporation of the company in such form and verified in such manner as may be prescribed, with the Registrar that every subscriber to the memorandum has paid the value of the shares agreed to be taken by him on the date of making of such declaration; and

(b) The company has filed with the Registrar a verification of its registered office as provided in sub-­section (2) of section 12.  

(2) If any default is made in complying with the requirements of this section, the company shall be liable to a penalty of fifty thousand rupees and every officer who is in default shall be liable to a penalty of one thousand rupees for each day during which such default continues but not exceeding an amount of one lakh rupees.

(3) Where no declaration has been filed with the Registrar under clause (a) of sub-section (1) within a period of one hundred and eighty days of the date of incorporation of the company and the Registrar has reasonable cause to believe that the company is not carrying on any business or operations, he may, without prejudice to the provisions of sub-section (2), initiate action for the removal of the name of the company from the register of companies under Chapter XVIII.]]

SECTION 10 A- COMMENCEMENT OF BUSINESS

*MANDATORY TO OBTAIN CERTIFICATE OF COMMENCEMENT OF BUSINESS FOR REGISTERED COMPANIES:*

Companies registered on or after November 02, 2018 are required to file the declaration for commencement of business with the Registrar of companies

*Time limit:*

The declaration for commencement of business shall be filled within 180 days from the date of getting CERTIFICATE OF INCORPORATION.

Fee for filing e-Form 20A:

1. In case of company have share capital

Nominal Share Capital         Fee applicable
Less than 1,00,000 Rupees 200
1,00,000 to 4,99,999 Rupees 300
5,00,000 to 24,99,999 Rupees 400
25,00,000 to 99,99,999  Rupees 500
1,00,00,000 or more   Rupees 600

2. In case of company do not have share capital: Rupees 200 

Additional fee after 180 days from the date of Incorporation

Period of delays    Fees
Up to 30 days 2 times of normal fees
More than 30 days and up to 60 days 4 times of normal fees
More than 60 days and up to 90 days  6 times of normal fees
More than 90 days and up to 180 days 10 times of normal fees
More than 180 days  12 times of normal fees

The ordinance was come into force on 2nd Nov 2018 therefore all the provisions of this section become applicable from 2nd November 2018. Therefore every company having share capital incorporated after 2nd November 2018 has to file form 20A with 180 days i.e. before 1st May 2019. The Ministry of Corporate affairs has launched the form 20A and it’s available on it portal.

CERTIFICATION OF FORM 20A

This e-form 20A needs to be verified by a practicing professional i,e, (Company Secretary) CS /(Chartered Accountant) CA/ (Cost accountant) CWA. For any negligence or default in certification practicing professional shall be liable for face the consequences as per the PROVISION of section 448 and 449 of the companies Act, 2013.

*VERIFICATION OF REGISTERED OFFICE – SEC-12(2)

Declaration in E-form INC-20A by a director, also states a point i.e. point no – 4 that “The company has filed with the registrar a verification of its registered office as provided in subsection (2) of section 12”, now the question is who is required to file this verification with the registrar of companies and by what time period?

While incorporation of company, in company incorporation form SPICE – INC-32, if you have selected option “No” in point 4(b) i.e. whether the address for correspondence is the address of registered office of the company, then you need to file verification of registered office with the registrar of companies within 30 days from the date of incorporation of the company.

VERIFICATION SHALL BE FILE IN E-FROM INC-22 WITHIN 30 DAYS FROM THE DATE OF INCORPORATION.

Attachments of E-form INC-22: –

(a) Proof of registered office – Rent Agreement/Lease agreement or Conveyance agreement

(b) Copy of Utility Bill (not older than two months) – Electricity Bill/Water Bill/Telephone Bill (any one)

(c) A proof that the Company is permitted to use the address as the registered office of the Company if the same is owned by any other entity/ Person – NOC from the owner of the premises (in case of rented premises)

(d) List of all the companies (specifying their CIN) having the same registered office address, if any

Who Needs To Apply? When To Apply? Documents Required, If Any? Conse-quences Of Non-Filing? Forms To Be Filed? Penal Provision?
All Companies Incorporated on/after 02nd November, 2018. Compulsory Compliance within 180 days of Company Registration. Signed Copy of Bank Statement of Company, Showing credit entries of subscription money. A Company Cannot initiate its business activity & also cannot exercise any borrowing power. INC-20 A and INC 22 along with Govt. Fees. Company : Rs. 50,000

Director: Rs. 1000 per day.

Max. upto Rs. 1 Lac

 {The author is a Company Secretary based at Delhi and Jaipur and can be reached at (M) 7021848742 and (E) csannusharma123@gmail.com}

Author Bio

Qualification: CS
Company: N/A
Location: Jaipur, Rajasthan, IN
Member Since: 26 Sep 2017 | Total Posts: 21
CS Annu Sharma is a Commerce Graduate and an Associate Member of the Institute of Company Secretaries of India (ICSI). She has cumulative experience of more than 3 years with Listed Company, CA and CS firms. She authored various articles on the topics of Corporate Laws, Securities Laws, DGFT, I View Full Profile

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10 Comments

  1. Faisal says:

    Can a new entity start serving the clients as soon as certificate of incorporation but before certificate of commencement. What is the minimum amount to be deposited in the bank as a paid up capital.

    1. Sana Baqai says:

      No. In the case of a private limited company, the certificate for commencement is not issued by MCA. Only the form 20A is approved. That is sufficient for commencement of business.

      1. SHOEB says:

        I need a little clarification(FOR COMMENCEMENT OF BUSINESS CERTIFICATE), in case of PVT. Ltd Companies, does MCA/ROC does not provide any Approval Letter (like they provide Certificate of Incorporation, Allotment of DIN etc via email). #My Case : eForm INC-20A submitted on the MCA portal and got an immediate email about Approval of SRN. Does it mean I obtained the approval Commencement of Business ?
        Thank You.

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