Incorporation of private limited company through spice

Introduction: –

According to section 2(68) of Companies Act, 2013, Private Company means ‘A company having a minimum paid-up share capital as may be prescribed, and which by its articles,

i. restricts the right to transfer its shares;

ii. except in case of One Person Company, limits the number of its members to two hundred

Provided that where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this clause, be treated as a single member.

Provided further that—

(A)	Persons who are in the employment of the company; and
(B)	Persons who, having been formerly in the employment of the company, were members of the company while in that employment and have continued to be members after the employment ceased,

shall not be included in the number of members; and

iii.	prohibits any invitation to the public to subscribe for any securities of the company.”

Essentials for Incorporation of Private Limited Company: –

Name of the proposed Company: –

i.	The proposed name should include words “Private Limited” at the end.
ii	The proposed name should be as per rule 8 of The Companies (Incorporation) Rules, 2014, which can also be seen through the following link:- https://taxguru.in/company-law/companies-incorporation-fifth-amendment-rules-2019.html
iii	The proposed name should not be identical or resembling to any existing company.
iv	The proposed name should not be identical to an existing trademark.

Business of the proposed company: –

i	The business to be conducted by the proposed company shall be determined.
ii	The proposed business shall not be restricted by law.
iii	The code of business activity of proposed company shall be determined.
iv	The code can be determined from Page 25 to 27 of http://www.mca.gov.in/Ministry/pdf/SPICe+_help.pdf

Registered office of the proposed company: – 

i	The registered office of such company must be determined,
ii	The registrar shall be decided based on such registered office.
iii	In case the office is on lease or rent, then lease/ rent agreement shall be available.

Memorandum of Association: –

i	There should be a draft MOA of the proposed company, which should be attached with form if there are more than seven first subscribers.
ii	Such MOA shall include the following: –
	●	Name of the proposed company
	●	State in which such company is proposed to be registered
	●	Proposed objects of the company
	●	Liability of the members
	●	Initial Capital of the company
	●	Number of shares taken by each subscriber of the MOA along with its signature.

Articles of Association: –

i		There should be a draft AOA of the proposed company, which should be attached with form if there are more than seven first subscribers.
ii	Such AOA shall include the following: –
	●		Regulations for management of the company
	●		Rights and liabilities of directors
	●		Limitations and restrictions of directors
	●		Rights and liabilities of members
	●		Manner of conducting business
	●		Any other point as may be applicable

Directors and Subscribers: –

i		The first directors and subscribers of the proposed shall be decided.
ii		There should be minimum 2 members and maximum 200 members.
iii		There should be minimum 2 directors and maximum 15 directors.
iv		Such person(s) shall not be restricted by law for becoming director or subscriber.
v		Details of such person(s) should be available along with required documents which are described below in detail.
vi	DIN and DSC of such person(s), if available.

Procedure of Incorporation of Private Limited Company by SPICe+:

Step 1: – Fill Part A of web form SPICe+

1.	Log in into MCA portal www.mca.gov.in
2.	Select MCA services and choose SPICe+
3.	Choose New Application. In case the name is already approved through Part A, Choose Existing Application.
4.	Choose Type of Company – New Company (Others)
5.	Choose Class of Company – Private
6.	Choose Category of Company – Company limited by shares/ Company limited by guarantee/ Unlimited Company
7.	Choose Sub-category of Company – State government company/ Union government company/ Non-government company/ Subsidiary of a foreign company/ Guarantee and association company Note: – Guarantee and association company can only be choose if the applicant had selected Company limited by guarantee.
8.	Enter the code of Main division of industrial activity of the Company as per Annexure B of help provided for filling SPICe+.
9.	Description shall be auto-filled based on the Industrial activity code selected.
10.	Proposed name of the company. There are two proposed names are allowed based on priority.
11.	Attach the relevant document supporting the proposed name. Note: – There is only one attachment allowed. In case of multiple attachments, it should be attached as single attachment. Note: – The size of attachment should be maximum 6MB. In case the full form SPICe+ is being submitted for name reservation as well as incorporation then the size of the form should not be more than 6MB.
12.	Auto check, Save and Submit.
13.	After selecting Submit a pop up will appear. The applicants have to choose if he wants to apply for name reservation only or should be continued for incorporation. In case the application is to be made for name reservation only then the applicant has to submit the Part A and pay Government fees of Rs. 1000.
14.	After completion of Part A, Part B will be enabled.

Step 2: – Preparation of Documents

After the approval of name is received, the documents should be prepared which are required to be attached with Part-B of SPICe+ and AGILE-PRO which are mentioned below. In case subscribers are more than 7, then prepare Physical signed copy of MOA and AOA. Also apply for DSCs of person who does not have DSC.

Step 3: – Fill Part B of web form SPICe+

1.	Select whether the articles are altered from Articles as per standard Articles prescribed in table of Schedule-I. In case the articles are altered in INC-34 (SPICe+ AOA), mention the number of article as well as details of alteration.
2.	Enter capital structure of the proposed company including Authorised capital, type of share capital, Number of shares, nominal value of shares, total amount of share capital to be issued initially etc. which can be changed from time to time.
3.	If there is no share capital, then the number of members of the proposed company shall be specified. There should be minimum 2 members and maximum 200 members. Note: – Proposed employees should not be included in number of members.
4.	Enter the correspondence address of the proposed company. In case there is no registered office, the applicant shall mention valid Email ID for receiving correspondence from the registrar.
5.	Select whether the correspondence address is address of registered office of the company.
6.	When there is no registered office at the time of incorporation, then a registered office shall be established within 15 days of approval of application of incorporation. Such shall be intimated to registrar within 30 days of incorporation in form INC-22.
7.	Select the name of ROC based on the correspondence address.
8.	Enter the number of subscribers as well as first directors (Individual + Non-individuals). Note: – Except Non-individual directors, the directors should be specified in two categories, (i) Directors having DIN (ii) Directors not having DIN
9.	The first subscribers of the company shall be minimum 2 and maximum 200. Whereas it should be equal to total number of members excluding employees in case there is no share capital. Here it is restricted to 7 for affixing DSC in MOA and AOA. If any of the above limits is to be crossed then a draft MOA and AOA shall be attached.
10.	Enter the number of Non-individual first subscribers. Based on this block Particulars of non-individual first subscriber(s) open for details input.
11.	Enter the number of subscribers who are proposed to be a director. Based on the difference of total number of subscribers and the number of non-individual subscribers plus number of subscribers cum directors, the blocks for Particulars of individual first subscriber(s) (other than subscriber cum director) having DIN & not having DIN shall be created by system.
12.	Enter total number of proposed directors. There should be minimum 2 directors and maximum 15 directors. In case of directors not having DIN, the details must be entered properly as DIN will be issued based on such details. There should be maximum 3 directors who are not having DIN. Based on the difference of total number of directors and the number of individual first subscriber(s) cum director(s), the blocks of Particulars of directors (other than first subscribers) having DIN & not having DIN shall be created by system.
13.	Enter particulars of first Non-individual subscribers: –
							Select Category – Company/ Foreign Company/ Company incorporated outside India/ Body Corporate/ Others.
							Enter CIN/ FCRN/ Any other registration number. Details would be pre-filled based on such number.
							Enter details of person authorised for acting on behalf.
						Enter PAN of such person authorised which should also be verified.
						Enter the amount and number of shares subscribed.
14.	Enter particulars of first individual first subscribers (other than subscribers cum directors) Having DIN: –
i.						Enter DIN and click pre-fill. The Name, Gender, DOB and Nationality will be pre-filled based on MCA records.
ii.						Enter number and amount of shares subscribed.
15.	Enter particulars of first individual first subscribers (other than subscribers cum directors) Not having DIN: –
					Enter Personal, Educational and Occupational details.
					Select personal identification number – PAN or Passport number (In case of other nationality). PAN shall be verified.
					Enter Designation – Director/ Managing director/ Whole time director/ Nominee Director.
					Enter Category – Promoter/ Professional/ Independent/ Nominee.
					Enter Email ID of proposed director
					Enter Address of proposed director
					Select proof of Identity to be attached – Voter ID/ Passport/ Driving License.
					Select proof of Residence to be attached – Bank statement/ Electricity Bill/ Telephone Bill/ Mobile Bill.
					Enter number and amount of shares subscribed.
16.	Enter particulars of first individual first subscribers cum directors having DIN: –
		Enter DIN and click pre-fill. The Name, Gender, DOB and Nationality will be pre-filled based on MCA records.
		Enter Designation – Director/ Managing director/ Whole time director/ Nominee Director.
		Enter Category – Promoter/ Professional/ Independent/ Nominee.
		Enter Email ID of proposed director
		Enter number and amount of shares subscribed.
		Enter number of entities in which such person is having interest and shareholding in such entities. In case, CIN/ FCRN/ LLPIN is available, there is no requirement to enter details of such entities.
17.	Enter particulars of first individual first subscribers cum directors not having DIN (DIN would be issued based on such details): –
			Enter Personal, Educational and Occupational details.
			Select personal identification number – PAN or Passport number (In case of other nationality). PAN shall be verified.
			Enter Designation – Director/ Managing director/ Whole time director/ Nominee Director.
			Enter Category – Promoter/ Professional/ Independent/ Nominee.
			Enter Email ID of proposed director
			Enter Address of proposed director
			Select proof of Identity to be attached – Voter ID/ Passport/ Driving License.
		Select proof of Residence to be attached – Bank statement/ Electricity Bill/ Telephone Bill/ Mobile Bill.
		Enter number and amount of shares subscribed.
		Enter details of entities in which director has interest and position and shareholding of such director in that entity.
18.	Enter details of directors (other than first subscribers) having DIN: –
				Enter DIN and click pre-fill. The Name, Gender, DOB and Nationality will be pre-filled based on MCA records.
				Enter Designation – Director/ Managing director/ Whole time director/ Nominee Director.
				Enter Category – Promoter/ Professional/ Independent/ Nominee.
				Enter Email ID of proposed director
				Enter number of entities in which such person is having interest and shareholding in such entities. In case, CIN/ FCRN/ LLPIN is available, there is no requirement to enter details of such entities.
19.	Enter details of directors (other than first subscribers) not having DIN: –
				Enter Personal, Educational and Occupational details.
				Select personal identification number – PAN or Passport number (In case of other nationality). PAN shall be verified.
				Enter Designation – Director/ Managing director/ Whole time director/ Nominee Director.
				Enter Category – Promoter/ Professional/ Independent/ Nominee.
				Enter Email ID of proposed director
				Enter Address of proposed director
				Select proof of Identity to be attached – Voter ID/ Passport/ Driving License.
				Select proof of Residence to be attached – Bank statement/ Electricity Bill/ Telephone Bill/ Mobile Bill.
				Enter number and amount of shares subscribed.
				Enter details of entities in which director has interest and position and shareholding of such director in that entity.
20.	The state or union territory for the purpose of stamp duty will be pre-filled on the basis of address of proposed company.
21.	Select whether stamp duty is to be paid electronically or not. The stamp duty payable shall be auto generated based on stamp duty applicable as per state rules for eform, MOA and AOA.
22.	Give details for applying for PAN and TAN. Search Area Code, AO Type, Range Code & AO No from https://www.tin-nsdl.com/services/pan/pan-aocode.html and https://www.tin-nsdl.com/services/tan/tan-ao-code.html
23.	Enter source of Income of the proposed company
24.	Enter business/ Profession code as per table given in below mentioned link: page no 16 & 17: http://www.mca.gov.in/Ministry/pdf/SPICe+_help.pdf

Attachments to form SPICe+: –

1)	MOA and AOA, in case the number of first subscribers are more than 7.
2)	Declarations of first subscribers in case total subscribers are more than 20 or any of such subscribers does not have DIN/PAN.
3)	Proof of Office Address – Utility Bill not older than 2 months
4)	If any promoter is a Foreign Company or Company incorporated outside India, then attach Certificate of Incorporation of such Company and Resolution passed for becoming subscriber.
5)	If any promoter is a Company, then resolution passed to become subscriber shall be attached.
6)	PAN of subscribers and directors not having DIN.
7)	Proof of identity for subscribers and directors not having DIN – Voter Id/ Passport/ Driving License.
8)	Proof of residential address for subscribers and directors not having DIN – Bank Statement/ Electricity Bill/ Telephone Bill/ Mobile Bill.
9)	In case of Non-Resident Indian (NRI), If the person is not holding PAN then an undertaking should be attached.

Step 4: – Fill Form INC-33 (SPICe+ MOA)

Form INC-33 (SPICe+ MOA) is a web-based form in which the Memorandum of Association of the proposed company is to be filed with the following details: –

1.	Select applicable standard table as may be notified under Schedule I of Companies Act, 2013.
2.	Name shall be pre-filled based on data entered in SPICe+ Part A.
3.	State shall be pre-filled based on data entered in SPICe+ Part B.
4.	Enter the Main Object of the Company and activities required in furtherance of such main activity.
5.	Enter the share capital of the Company including authorised capital of the company. Mention the details of distinct kind of share capital having same nominal per share, in each row. In case sub-classes of equity and preference are required, then use the same format in any other document and attach the scanned copy.
6.	DIN/ PAN/ Passport No. of the Subscribers.
7.	Name, Address, Description and Occupation of the Subscribers.
8.	Enter the details of witness (The person shall be same who is certifying the incorporation forms).

 Step 5: – Fill Form INC-34 (SPICe+ AOA)

Form INC-34 (SPICe+ AOA) is a web-based form in which the Articles of Association of the proposed company is to be filed with the following details: –

1.	Select applicable standard table as may be notified under Schedule I of Companies Act, 2013.
2.	Name shall be pre-filled based on data entered in SPICe+ Part A.
3.	Articles would be available as per the table selected in point 1. If there is no requirement of any article, then the first box shall be clicked. If there is requirement of entrenchment of any article then 2nd box shall be clicked and then such article would be available for alteration. If there is requirement of any additional point, then it should be mentioned in last box “others”. Note: – Name of the first directors should be mentioned under “Board of Directors”. Mention different appointments as a sub-article E.g. (a) Managing Director (b) Director etc.
4.	DIN/ PAN/ Passport No. of the Subscribers.
5.	Name, Address, Description and Occupation of the Subscribers.
6.	Enter the details of witness (The person shall be same who is certifying the incorporation forms).

 Step 6: – Fill form INC-35 (AGILE-PRO)

This form is filled for application to obtain GSTIN, EPFO, ESIC, Professional tax (only in case of Maharashtra and Karnataka) and Opening of Bank account.

1.	Name shall be pre-filled based on data entered in SPICe+ Part A.
2.	As application for GSTIN is not compulsory, if the applicant wants to apply, then click on YES.
3.	State and District would be pre-filled in basis of address entered in Part B.
4.	The Sector / Circle / Ward /Charge / Unit of state jurisdiction shall be selected which can also be referred from state website.
5.	The Commissionerate Code, Division Code and Range Code for center jurisdiction shall be selected after referring from https://www.aces.gov.in/STASE/ui/jsp/common/statelocation.do
6.	Select whether the establishment is on lease or not. In case establishment is on lease, mention the time period (Dates) for which it is taken on lease.
7.	Select Nature of possession of premises. In case of others, specify the nature of possession.
8.	Select Proof of Principal place of business which would be attached with the form:
	i.		Property Tax Receipt
	ii.		Municipal khata copy
	iii.		Electricity Bill of premises
	iv.		Rent/ Lease Agreement
	v.		Consent Letter
	vi.		Rent receipt with NOC, in case of No/ expired agreement
	vii.		Legal Ownership Document
	Note: – The size of attachments shall be as per prescribed in page no. 7 of AGILE-PRO help issued by MCA. http://www.mca.gov.in/Ministry/pdf/AGILE-PRO_help.pdf
9.	Select whether the building/premises of Establishment is Hired/ Rented or Owned or Leased.
10.	If the premises is hired or leased and there is change of name of premises or unit, then it should be mentioned.
11.	Select whether GSTIN is to be opted for Composition. In case it is opted for Composition, then mention category of the registered person.
12.	Select atleast one nature of business activity. One Primary business shall be selected.
13.	Select nature of work/ business and sub-category of work. The nature of work should be mentioned exact.
14.	Enter 4-digit HSN code of the goods supplied by the business as provided on CBIC website (www.cbic.gov.in). Description would be pre-filled after entering HSN code.
15.	Enter 4-digit SAC code of the services supplied by the business as provided on CBIC website (www.cbic.gov.in). Description would be pre-filled after entering SAC code.
16.	Enter details of director who is an authorised signatory for the purpose of obtain GSTIN, EPFO, ESIC, Professional tax (only in case of Maharashtra and Karnataka) and Opening of Bank account.
17.	Enter PAN or DIN of such director. In case DIN is entered, then Name and PAN would be pre-filled as per MCA records. In case PAN is entered, all details must be filled.
18.	Enter valid Indian Mobile number and Email Id of such director. An OTP would be sent on both. Enter both OTP and verify.
		Attach Photo of such director in .JPG format and maximum size should be 100kb.
		Attach proof of appointment of authorised signatory – A letter of Authorization
19.	Enter details of other directors who is also mentioned in Part B and are authorised on behalf of the proposed company.
		Attach Photo of such director in .JPG format and maximum size should be 100kb.
20.	Select the name of the Bank from drop down menu in which account is to be opened: Punjab National Bank / ICICI Bank / Kotak Mahindra Bank / Bank of Baroda / HDFC / SBI / Indian Bank / Union Bank of India / Allahabad Bank / Andhra Bank / Bank of India / Bank of Maharashtra / Canara Bank/ Central Bank of India / Corporation Bank / Indian Overseas Bank / Oriental Bank of Commerce / Syndicate Bank / United Bank of India / Punjab & Sind Bank / UCO Bank / HSBC Bank.
21.	Download the format of Specimen Signature from http://www.mca.gov.in/Ministry/pdf/specimensignature_07042019.pdf, Fill the requisite information as applicable, scan it.
22.	GST declaration shall be enabled only if application is being made for issuance of GSTIN. Profession Tax declaration shall be enabled only in case the company is proposed to be situated in the state of Maharashtra and Karnataka. ESIC/EPFO and Bank declarations shall be enabled in all cases.

Attachments to form INC-35 (AGILE-PRO): –

1)	Proof of Identity (Voter Id/ Passport/ Driving License) and Proof of residential address (Bank Statement/ Electricity Bill/ Telephone Bill/ Mobile Bill) of all the persons authorised. Note: – In case the details of persons authorised is entered on PAN basis, then PAN should also be attached.
2)	Specimen Signature as mentioned above with the signature of all authorised persons whose details is entered in the form.

 Step 7: – Pre-filled INC-9

The declaration of the subscribers and first directors shall be auto-generated in form INC-9 on the basis of details entered in SPICe+ Part-B.

Step 8: – Download the Forms and Affix DSCs

1.	Download the following forms: –
	a)	INC-32 (SPICe+)
	b)	INC-33 (SPICe+ MOA)
	c)	INC-34 (SPICe+ AOA)
	d)	AGILE-PRO
	e)	INC-9 (Declaration of subscribers and first directors)
2.	Affix DSCs of directors and professional on all the required forms. Note: – DSC to be affixed on Part-B and AGILE-PRO shall be of same person.

 Step 9: – Upload the form and make payment of fees

After affixing the DSCs, Upload the forms INC-32 SPICe+, INC-33 (MOA), INC-34 (AOA), AGILE-PRO and INC-9 as linked forms on the MCA portal in the below given sequence and make payment of Government fees along with stamp duty as per prescribed.

Sequence of Linked Forms: –

1.	INC-32 SPICe+
2.	INC-33 (MOA)
3.	INC-34 (AOA)
4.	INC-35 (AGILE-PRO)
5.	INC-9

The applicant may receive Certificate of Incorporation in form INC-11, if there is no query on part of the registrar.

In case there is any query or rejection of application by registrar, then the form shall be re-uploaded in same manner after payment of prescribed fees.

Along with the Certificate of Incorporation, The PAN and TAN would be allotted to the Company and would be mentioned in the Certificate of Incorporation of the Company. The E-PAN, TAN allotment letter, Bank Account Number, ESIC Code and EPF Code would be sent on the registered email address of the company after they are allotted.

Also, the DIN Allotment letter of the directors not having DIN would be sent to the registered Email Address of such directors based on data entered in form SPICe+.

Also, it is advisable that always generate paylater than make payment for the better result for generating payment challan.

Details of Authors: CS GOVIL RATHI & SAURABH CHHATRALA