A. Incorporation of Public / Private Companies
A Person (or an Association of Persons), desirous of incorporating a company has to make an application for registration of a company shall be filed, with the Registrar within whose jurisdiction the registered office of the company is proposed to be situated, in e-Form No. INC-32 (SPICe).
[Provided that in case the proposed Company has any object which requires registration or approval from sectoral regulators such as the Reserve Bank of India, the Securities and Exchange Board, registration or approval, as the case may be, from such regulator shall be obtained by the proposed company before pursuing such objects and a declaration in this behalf shall be submitted at the stage of incorporation of the company].
The following kinds of documents are to be attached in the e-Form No. INC-32 (SPICe):
1. The memorandum of association of the proposed company shall be in e-Form No. INC-33.
2. The memorandum of association of the proposed company shall be in e-Form No. INC-34.
[The Memorandum and Articles of Association of the company shall be signed digitally by DSC in the following manner, namely:-
(1) The memorandum and articles of association of the company shall be signed way of his DSC by each subscriber to the memorandum, who shall enter his name, address, description and occupation, if any, in the e-Form INC-33, in the presence of at least one witness who shall attest the signature and shall likewise sign by DSC and add his name, address, description and occupation, if any, before the words mentioned in the form that “I witness to subscriber/subscriber(s), who has/have subscribed and signed in my presence (date and place to be given); further I have verified his or their Identity Details (ID) for their identification and satisfied myself of his/her/their identification particulars as filled in.”
(2)Where the subscriber to the memorandum is one of the following types of persons:
♦ a body corporate, then the memorandum and articles of association shall be signed by affixing DSC of Director, Officer or Employee of that Body Corporate, who is duly authorized in on the behalf of such Body Corporate by a resolution of the Board of Directors of the body corporate;
♦ where the subscriber is a Limited Liability Partnership, it shall be signed by affixing DSC of partner of the Limited Liability Partnership, who is duly authorized by a resolution approved by all the partners of the Limited Liability Partnership
Provided that in either case, the person so authorized shall not, at the same time, himself become a subscriber to the memorandum and articles of Association.
♦ Where subscriber to the memorandum is a foreign national residing outside India-
a) in a country in any part of the Commonwealth, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized by a ‘Notary (Public) in that part of the Commonwealth’.
b) in a country which is a party to the Hague Apostile Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized before the ‘Notary (Public) of the country of his origin and be duly apostillised in accordance with the said Hague Convention’.
c) in a country outside the Commonwealth and which is not a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity, shall be notarized before the ‘Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948) or, where there is no such officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic.C.10), or in any Act amending the same’.
d) Visited in India and intended to incorporate a company, in such case the incorporation shall be allowed if, he/she is having a valid ‘Business Visa’.
Explanation.- For the purposes of this clause, it is hereby clarified that, in case of Person is of Indian Origin or Overseas Citizen of India, requirement of business Visa shall not be applicable].
3. The declaration in Form No. INC-8 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that
I , ____, an advocate/ a Chartered Accountant/ a Cost Accountant/ a Company Secretary in practice in India who is engaged in the formation of the company, do hereby declare that:
all the requirements of Companies Act, 2013 and the rules made thereunder relating to registration of the company under the Act and matters precedent or incidental thereto have been complied with.
Date:
Place:
Signature:
Membership No.:
[Practically the requirement to attach a separate declaration in this regard in Form No. INC-8 has been done away with and this declaration is to be given in SPICe Form itself].
4. The declaration in Form No. INC-9 (earlier it was required in Affidavit) by each of the persons making the application, that
Name of the proposed company
I …………………., being the subscriber to the memorandum/ named as first director in the articles, of the above named proposed company, hereby solemnly declare and affirm that:
a) 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
b) 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
c) 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.
Date:
Place:
Signature:
5. The following particulars of every subscriber to the memorandum shall be filed with the Registrar-
I. Proof of Identity:
For Indian Nationals:
- PAN Card ( mandatory) and any one of the following
- Voter’s identity card
- Passport copy
- Driving License copy
- Unique Identification Number (UIN)
For Foreign nationals and Non Resident Indians
- Passport
[Explanation. – In case the subscriber is already holding a valid DIN, and the particulars provided therein have been updated as on the date of application, and the declaration to this effect is given in the application, the proof of identity and residence need not be attached.]
II. Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile Bill:
[Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old]
III. Proof of nationality in case the subscriber is a foreign national.
IV. If the subscriber is already a director or promoter of a company(s), the particulars relating to-
a) Name of the company;
b) Corporate Identity Number;
c) Whether interested as a director or promoter;
V. Where the subscriber to the memorandum is a body corporate, then the following particulars shall be filed with the Registrar-
a) Corporate Identity Number of the Company or Registration number of the body corporate, if any
b) GLN, if any;
c) the name of the body corporate
d) the registered office address or principal place of business;
e) E-mail Id;
f) if that body corporate is a company, certified true copy of the board resolution specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed by the body corporate, and the name, address and designation of the person authorized to subscribe to the Memorandum;
g) if the body corporate is a limited liability partnership 4[Omitted], certified true copy of the resolution agreed to by all the partners specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed in the body corporate, and the name of the partner authorized to subscribe to the Memorandum;
h) all the personal particulars of the person subscribing for body corporate;
i) In case of foreign bodies corporate, the details relating to the copy of certificate of incorporation of the foreign body corporate; and the registered office address.
B. Incorporation of Section 8 Company i.e. Formation of Companies with Charitable Objects, etc.
A Person (or an Association of Persons), desirous of incorporating a company with limited liability under Section 8(1) needs to make an application in e-Form No. INC-32 (SPICe), to the Registrar of Companies for getting a License in order to form an organization having the objects to promote Commerce, Art, Science, Sports, Education, Research, Social Welfare, Religion, Charity, Protection of Environment or any Such Other Object.
This kind of organization can be formed without using the word “Limited”, or as the case may be, the words “Private Limited” in its name.
All the documents mentioned above which are required to be filed in case of Incorporation of Pvt. or Pub. Co. are to be filed in case of Incorporation of Section 8 company also but with the following exceptions:
1. The memorandum of association of the proposed company shall be in Form No. INC-13.
2. The Articles of Association of the proposed company (As per the Schedule I – Table F or G or H or I or J, depending upon the class of company)
3. The declaration in Form No. INC-14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that
I , ____, an advocate/ a Chartered Accountant/ a Cost Accountant/ a Company Secretary in practice in India who is engaged in the formation of the company, do hereby declare that:
a) the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder; and
b) all the requirements of Companies Act, 2013 and the rules made thereunder relating to registration of the company under section 8 of the Act and matters precedent or incidental thereto have been complied with.
Date:
Place:
Signature:
Membership No.:
4. An estimate of the Future Annual Income and Expenditure of the company for Next Three years, specifying the sources of the income and the objects of the expenditure;
5. The declaration in Form No. INC-15 by each of the persons making the application, that
In connection with the application of (Name of the proposed Company), for a license under section 8 of the Companies Act, 2013, I, (Name of the Subscriber) do hereby declare that —
(a) the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder; and
(b) all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with;
and I make this solemn declaration conscientiously believing the same to be true.
Date:
Place:
Signature:
Name:
Address:
Some important points need to be considered about the Section 8 Company:
1. It shall Apply it’s all the profits, if any, or other income in promoting its objects such as commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object; it shall prohibit the payment/ transfer, (directly or indirectly) of any portion of profit or other income or property by way of Dividend/ Bonus to its members or to any persons claiming through any one or more of them.
2. The Company shall neither give Remuneration or Other Benefit in Money or Money’s worth, to any of its members/ officers, except payment of out-of-pocket expenses or Interest on Money lent by member to company or Rent on Premises let by members to the company.
3. It shall enjoy various privileges/ exemptions (discussed in below points), provided by the Government but also be subject to all the obligations of Limited Companies.
4. A Partnership Firm cannot become a member of any Company except the company registered under this section (Section 8 Company).
5. This kind of company shall not alter the provisions of its MOA as well as AOA except with the Previous Approval of the Central Government.
6. This company may convert itself into company of any other kind only after complying with Rule 21 of Companies (Incorporation) Rules, 2014.
7. In case of AGM of this company, 14 Days’ prior Notice is sufficient instead of 21 Days’ Notice.
8. Similarly, the Financial Statements may be sent to the members of this company 14 Days’ prior to the AGM instead of 21 Days’ Notice.
9. This company needs not to comply with condition of having minimum and maximum no. of directors.
10. This company also needs not to appoint Independent Director and comply with all the provisions related to ID.
11. While reckoning the maximum no. of Directorships of a director in companies, his Directorship in Section 8 Company will not be considered.
12. Only One Board Meeting in a span of Half-year is sufficient instead of one Board Meeting in Every Quarter; and that too with the Quorum either 8 members or 25% of total strength whichever is
13. This company can appoint any person as Company Secretary even if that person is not a member of ICSI.
Note: all the above privileges/ exemptions shall only be available to a Section 8 Company which has not committed a default in filing its financial statements under section 137 or annual return under section 92 of the said Act with the Registrar.
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