Checklist for correction of Info wrongly furnished U/s. 7 of CA 2013

Article provides Checklist for Correction of Information wrongly furnished under section 7 (Incorporation of Company) of Companies Act, 2013 keeping in view the NCLT Rules, 2016

Dear Professional Colleagues,

The constitution of NCLT (on June 01, 2016) as a single window mechanism which deals with Company Law related matter is a remarkable move as its aimed at providing speedy disposal of matters in an efficient manner.

Keeping in view these rules by aforesaid authority, a Company may make an application for wrongly furnished information while incorporating a Company under section 7 (incorporation of Company) of the Companies Act, 2013.

Before going through the checklist of how to make an application in case of furnishing false or incorrect information or by any fraudulent action during incorporation of a Company, let’s have a quick glance as to how to incorporate a Company under new mechanism (SPICe), Rule 38 of Companies (Incorporation) Fourth Amendment Rules, 2016 of Companies Act, 2013.

Types of Companies covered: – Part I Company – Companies Authorized to register under Companies Act, 2013 – Producer Company – Section 8 Company-  Companies with charitable Objects (Previously were not able to register under INC-29) – Public Company, Private Company or One Person Company

How to incorporate Company through SPICe (Simplified Performa  for Incorporating Company Electronically)

Make an application in Form No. INC-32 (SPICe) along with e-Memorandum of Association (e-MOA) in Form No. INC-33 and e-Articles of association (e-AOA) in Form no. INC-34.

Attachments of INC-32 (SPICe):

– Memorandum of Association – Applicable and mandatory only in case of Section 8 company or company with foreign subscribers not having DIN

– Articles of Association – Applicable and mandatory only in case of Section 8 company or company with foreign subscribers not having DIN

– Affidavit and declaration by first subscriber(s) and director(s) – Mandatory in all cases

– Proof of office address

– Copies of utility bills that are not older than two months

– Copy of approval in case the proposed name contains any word(s) or expression(s) which requires approval from central government

– If the proposed name is based on a registered trademark or is subject matter of an application pending for registration under the Trade Marks Act, then it is mandatory to attach the trademark registration certificate or trademark application copy

– NOC from the sole proprietor/ partners/other associates/ existing company

– Proof of identity and residential address of the subscribers

– Proof of identity and residential address of directors

How to make an application to Tribunal where company has been incorporated by furnishing false or incorrect info or by any fraudulent action (Section 7(7) of Companies Act, 2013).

Procedural Aspects:-

1. Issue Notice of Board Meeting

Issue the Notice of Board Meeting as per Section 173 (3) of the Companies Act, 2013 & Secretarial Standard (SS-1) issue by ICSI atleast seven days before the Board Meeting with the following agenda:

– To consider In- Principal approval for Correction of Information wrongly furnished under section 7 (Incorporation of Company) of Companies Act, 2013

– To authorise Company Secretary in practice/ practising Chartered Accountant/ Practising Cost Accountant to enter appearance (Rule 45(2) of NCLT Rules, 2016)

2. Hold the Board Meeting

Hold the Board Meeting and pass all the resolutions mentioned in Agenda.

3. An application shall be filled in Form No. NCLT-1 together with the particulars contained inAnnexure-B

Every application filed under sub rule (1) shall also set out the following particulars (Rule 66(2) Of NCLT Rules, 2016):-

– Name of the company and other details including date of incorporation, name and address of the subscribers, promoters and first directors; and

– details of false or incorrect information or representation or material facts or information suppressed.

– details of such documents in or declaration filed or made for incorporating such company,

– involvement of promoters, subscribers and first directors in committing fraud during the course of incorporation;

The application to be filed in form NCLT-1. The application shall contain the following particulars as given in Annexure- B (Rule 66(1) of NCLT Rules, 2016), namely:-

(i) Copy of Memorandum and Articles of Association.

(ii) Document in proof of false or incorrect information or fraudulent action

(iii) Affidavit verifying the petition.

(iv) Bank draft evidencing payment of application fee.

(v) Memorandum of appearance with copy of the Board’s Resolution or the executed vakalatnama, as the case may be.

4. Order of Tribunal

The Tribunal may pass such orders, as it may think fit in accordance with clauses (a) to (e) of said sub- section (7).

Clauses of Section 7(7): a. pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or b. direct that liability of the members shall be unlimited; or c. direct removal of the name of the company from the register of companies; or d. pass an order for the winding up of the company; or e. pass such other orders as it may deem fit

After obtaining order from Tribunal, a certified copy of the order shall be filed with the Registrar of Companies (ROC) within thirty days of the receipt of certified copy in e-form INC-28.

PETITION FORMAT

FORM NO. NCLT. 1

General Heading for Proceedings

Before the National Company Law Tribunal,

Bench, at ________

In the mater of the Companies Act, 2013

And

In the matter of …… Ltd: (Name of the Company)

Columns required for filing of Original Application/ Reply / Rejoinder / Interlocutory Application or filing of additional documents under directions of the Bench

i. Details of Original Application / Reply / Rejoinder/ Interlocutory Application

Particulars of the Petitioner / Applicant / Respondent and state whether company, whether petitioner or not.

(Name, description, father’s / husband’s name, occupation, capacity, i.e. quashareholder, qua depositor and address)

ii. Jurisdiction of the Bench:

The petitioner declares that the subject-matter of the petition is within the jurisdiction of the Bench

iii. Limitation: (If applicable)

The petitioner / applicant further declares that the petition is within the limitation laid down in section ……. of the Companies Act, 2013 (where applicable)

iv. Facts of the case are given below:

(Concise statement of facts in a chronological order, each paragraph containing as nearly as possible a separate issue, fact or otherwise.)

v. Relief(s) sought.

In view of the facts mentioned above, the petitioner/applicant / respondent prays for the following relief(s):

(Specify below the relief(s) sought explaining the ground for relief(s) and the legal provisions (if any) relied upon)

vi. Particulars of Bank draft evidencing payment of fee for the petition or application made:

Branch of the Bank on which drawn:

Name of the issuing branch:

Demand Draft No………

Date…………..

Amount Rs………..

(Signature/Signature of Authorised signatory)

Date:

Place:

FORM NO. NCLT. 12

(see rule 45)

Memorandum of appearance

To

The Registrar,

National Company Law Tribunal . . . . . . . . . . Bench,

In the matter of . . . . . . . . . . Petitioner.

V.

. . . . . . . . . . Respondent

(C.P. NO . . . . . . . . . . of 20 . . . . . . . . . . )

Sir,

Please take notice that I, AB, Company Secretary in practice/ practising Chartered Accountant/ practising Cost Accountant, duly authorised to enter appearance, and do hereby enter appearance, on behalf of . . . . . . . . . . petitioner/ opposite party/ Registrar/ Regional Director/ Government of . . . . . . . . . . in the above-mentioned petition.

*A copy of the resolution passed by the Board of Directors authorising me to enter appearance and to act for every purpose connected with the proceedings for the said party is enclosed, duly signed by me for identification.

Yours sincerely,

Dated . . . . . . . . . . day of . . . . . . . . . . Address:

Enclosure: as aforesaid

Disclaimer:

The entire contents of this article is solely for information purpose and have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation.. It doesn’t constitute professional advice or a formal recommendation. The author has undertook utmost care to disseminate the true and correct view and doesn’t accept liability for any errors or omissions. You are kindly requested to verify & confirm the updates from the genuine sources before acting on any of the information’s provided herein above.