SELECT THE TYPE OF COMPANY
Section 3(1) of the Companies Act, 2013 provides that a company may be formed for any lawful purpose by:
1. Seven or more persons, where the company to be formed is to be a public company;
2. Two or more persons, where the company to be formed is to be a private company; or
3. One person, where the company to be formed is One Person Company that is to say, a private company
By subscribing their names to a memorandum and complying with the requirements of this in respect of registration.
SIMPLIFIED PROFORMA FOR INCORPORATING COMPANY ELECTRONICALLY (SPICe)
In the year 2016, Ministry of Corporate Affairs introduced a new e-form named INC-32 – SPICe (Simplified Proforma for Incorporating Company Electronically) to enable incorporation of companies providing more functionalities and deals with a single form for multiple services for incorporation of a company.
Now, there is no need to file INC 1, INC 7, INC 8 and INC 10. Therefore, only in one filing, stakeholders can incorporate a company. However, the following points should be taken into consideration for filing e-form SPICe 32:
1. Maximum number of subscribers should not exceed 7;
2. Maximum number of directors should not exceed 15;
3. Maximum 3 directors are allowed for filing application of allotment of DIN while incorporating a company; and
4. Applying for PAN or TAN will be compulsory for all fresh applications filed in the new version of the SPICe form.
PROCEDURE OF INCORPORATION OF A COMPANY
DIRECTOR: The particulars of maximum three directors shall be allowed to be filled in SPICe-32 and allotment of Director Identification Number (DIN) of maximum of three proposed directors shall be permitted in Form SPICe-32 in case of proposed directors not having approved DIN.
NAME: The promoter or the applicant of the proposed company shall propose only one name in Form SPICe-32. For an application filed using the simplified proforma for incorporation, the provisions related to reservation of a name are not applicable. Thus, the facility to file simplified application for incorporation in Form SPICe-32 is available as an option to the process for separate applications for allotment of DIN and reservation of name.
MOA & AOA:
- The promoter or the applicant of the proposed company shall prepare Memorandum of Association as per templates in Form INC-33 and Articles of Association in Form INC-34 in accordance with the provisions of Rule 13 for preparation of MOA and AOA.
- The promoter or applicant of the proposed company shall sign and witness the MOA and AOA in the forms downloaded from the portal of the Ministry of Corporate Affairs and scanned legibly and attach to E-Form SPICe-32 in accordance with the provisions of Rule 13 for preparation of MOA and AOA.
ADDRESS:
- A company may also furnish verification of its registered office by filing e-Form SPICe-32.
- The requirement of filing e-form INC-22 is dispensed with, if the proposed company maintains its registered office at the given correspondence address.
REGISTRAR
- The Registrar within whose jurisdiction the registered office of the company is proposed to be situated shall process SPICe-32 including application for allotment of DIN.
- Where the Registrar, on examining E-Form SPICe-32, finds that it is necessary to call for further information or finds such application or document to be defective or incomplete in any respect, he shall give intimation to the applicant to remove the defects and re-submit the e-form within fifteen days from the date of such intimation given by the Registrar.
- After the resubmission of the document, if the Registrar still finds that the document is defective or incomplete in any respect, he shall give one more opportunity of fifteen days to remove such defects or deficiencies.
- The Certificate of Incorporation shall be issued by the Registrar in Form INC-11.
TACKLING FREQUENTLY ASKED QUESTIONS ON SPICE 32[1]
1. Name Reservation: Through SPICe form only one name can be reserved. However, for reservation of a name prior to filing SPICe (INC-32), one may use RUN service and then input the SRN of approved RUN into SPICe.
2. Filing of INC 22: It is not required to be filed with SPICe (INC-32) if a company is registered with the same address as the address for correspondence (in INC-32). In case the registered address is different, INC-22 is required to be filed within 30 days of its incorporation, for intimating the registered office address.
3. Mandate of AADHAR and PAN: The Companies (Incorporation) Rules which have been notified have liberalized many requirements in respect of Proof of Identity and Proof of residence in respect of Subscribers and Directors. The Companies (Incorporation) Third Amendment Rules, 2016 has relaxed the mandatory attachment of proof of identity and residence in respect of a subscriber having a valid DIN.
4. Mandate of DSC for subscribers: Yes, DSC is mandatory for all subscribers and witnesses in e-MOA(INC-33) and e-AOA(INC-34). E-MOA and e-AOA shall be used only where the maximum number of subscribers do not exceed 7. In case the number of subscribers are more than 7, MOA and AOA shall be attached manually to SPICe and DSC is not mandatory in such cases.
5. Communication of PAN and TAN on approval of SPICe: On approval of SPICe forms, the Certificate of Incorporation is issued with PAN as allotted by the Income Tax Department. An electronic mail with Certificate of Incorporation as an attachment along with PAN and TAN is also sent to the user. Further PAN card shall be issued by the Income Tax Department.
[1] Help and FAQ, MCA, http://www.mca.gov.in/MinistryV2/spicefaq.html
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