Companies (Incorporation) Second Amendment Rules, 2022 – Form No. INC-9

MCA has released vide Companies (Incorporation) Second Amendment Rules, 2022 substituted FORM NO. INC-9 – Declaration by Subscribers and First Directors.

Summary of the Notification:

1. The MCA has revised format of e-Form No. INC-9 to insert declaration on compliance with Government approval requirement under FEMA:

Below new checkboxes are included in e-Form No. INC-9:-

• I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. or
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares

2. The MCA has inserted new declaration in e-Form No.INC-32 (SPICe+), in Part-B to insert declaration on compliance with Government approval requirement under FEMA:

In e-Form No.INC-32 (SPICe+), in Part-B, in Declaration, the following shall be inserted at the end, namely:-

“I, on behalf of the proposed directors, hereby declare that person seeking appointment is a national of a country which shares a land border with India, necessary security clearance from Ministry of Home Affairs, Government of India shall be attached with the consent.

• Yes
• No

 (if yes is opted, a copy of the security clearance is to be attached)”.

MINISTRY OF CORPORATE AFFAIRS

NOTIFICATION

New Delhi, the 20th May, 2022

G.S.R. 363(E).—In exercise of the powers conferred under section 3, section 4, sub-sections (5) and (6) of section 5, section 6, sub-section (1) and (2) of section 7, sub-sections (1) and (2) of section 8, sub-sections (2), (3), (4) and (5) of section 12, sub-sections (3), (4) and proviso to sub-section (5) of section 13, sub-section (2) of section 14, sub-section (1) of section 17, sub-sections (1) and (2) of section 20 read with sub-sections (1) and (2) of section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules further to amend the Companies (Incorporation) Rules, 2014, namely:-

1. Short title and commencement. – (1) These rules may be called the Companies (Incorporation) Second Amendment Rules, 2022.

(2) They shall come into force with effect from 1st June, 2022.

2. In the Companies (Incorporation) Rules, 2014,

(a) for FORM No.INC-9, the following Form shall be substituted, namely: –

–

2. (a) This declaration is in respect of:

2(b) Authorized person of non-individual first subscriber(s)

II. Income-tax Permanent Account Number (PAN) ……………….

Declaration

I ………………. being the subscriber to the memorandum, of the above named proposed company, hereby solemnly declare and affirm that:

•  I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
•  I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years;
•  I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. Or
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.
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2(c) Particulars of individual first subscriber(s) (other than subscriber cum director)

I. Director Identification Number (DIN) ……………………

Declaration

I …………………… being the subscriber to the memorandum, of the above named proposed company, hereby solemnly declare and affirm that:

• I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
• I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years;
• I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. or
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

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II. Income-tax Permanent Account Number (PAN) ………………..

Declaration

I …………….  being the subscriber to the memorandum, of the above named proposed company, hereby solemnly declare and affirm that:

• I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
• I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years;
• I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. or
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

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2(d) Particulars of individual first subscriber(s) cum directors

I. Director Identification Number(DIN) ………………

Declaration

I  ________________________ being the subscriber to the memorandum and named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:

I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and

I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years;

I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. or

I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and

All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

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2(d) Income-tax Permanent Account Number (PAN)

I. Director Identification Number (DIN) ………………

Declaration

I ………………… being the subscriber to the memorandum and named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:

• I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
• I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years;
• I am required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and the same has been obtained, and is enclosed herewith. or
• I am not required to obtain the Government approval under the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 prior to subscription of shares and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

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II. Income-tax Permanent Account Number (PAN) ……………….

2(e) Particulars of directors (other than first subscribers)

1. Director Identification Number(DIN) ………………………

Declaration

I ________ being named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:

• I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
• I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years; and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

II. Income-tax Permanent Account Number (PAN) …………….

Declaration

I ……………. being named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:

• I have not been convicted of any offence in connection with the promotion, formation or management of any company during the preceding five years; and
• I have not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years; and
• All the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of my knowledge and belief.

(b) in FORM No.INC-32 (SPICe+), in Part-B, in Declaration, the following shall be inserted at the end, namely:-

“I, on behalf of the proposed directors, hereby declare that person seeking appointment is a national of a country which shares a land border with India, necessary security clearance from Ministry of Home Affairs, Government of India shall be attached with the consent. O Yes O No. (if yes is opted, a copy of the security clearance is to be attached)”.

[F. No. 1/13/2013-CL-V, Vol.IV]

‘MANOJ PANDEY, Jt. Secy.

Note: The principal rules were published in the Gazette of India, Extraordinary, Part-II, section 3, sub-section(1) vide number G.S.R.250(E) dated the 31st March, 2014 and last amended, vide number 291 (E) dated the 8th April, 2022.