This section corresponds to Section 25 of the Companies Act, 1956 and empowers the central Government to register an association as limited company having charitable objects to promote commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment etc., without adding to its name the words ‘Limited’ ‘Private Limited’. The Profit or any income of the Company shall be used for promoting the objects of the Company. Payment of dividend to members is prohibited. The Central Government (Regional Director) shall issue license on such terms and conditions as shall be prescribed by it for registration of such companies and these companies shall be subject to certain exemptions and restrictions. In the event of any violation of conditions on which a license is issued, the Central Government may revoke the license and order the company, after giving a reasonable opportunity of being heard, to be wound up or amalgamated with another company having similar objects. A firm may be allowed to become a member of such company. Where it is proved that the affairs of the Company were conducted fraudulently, penal action for fraud shall be applicable to every officer of the Company.
- Effective Date of Section 8 of Companies Act, 2013 01-04-2014
- Rule No. of The Companies (Incorporation) Rules, 2014 19, 20, 21, 22 and 23
- Form No. INC-12, INC-13, INC-15, INC-16, INC-17, INC-18, INC-19, INC-20
- Corresponding sections of the Companies Act, 1956: 25
Eligibility for forming Section 8 Company
A person or an association of persons intending to be registered under Section 8 of the Companies Act, 2013 as a limited company –
(a) has in its objects the promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object;
(b) intends to apply its profits, if any, or other income in promoting its objects; and
(c) intends to prohibit the payment of any dividend to its members.
E-filing for Section 8 Company
A person or an association of persons shall make an application in Form No. INC-12 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 to the Registrar for a license under sub-section (1) of Section 8.
The Memorandum of association of the proposed company shall be in Form No. INC-13.
Form INC-13 shall be accompanied by the following documents
- The draft memorandum and articles of association of the proposed company
- The declaration in Form no. INC-14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that the draft Memorandum and articles of Association have been drawn up in conformity with the provisions of section 8 and rules made thereunder and that 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;
- 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;
- the declaration by each of the persons making the application in Form No. INC-15.
- the Company shall, within a week from the date of making the application to the Registrar, publish a notice at his own expense, and a copy of the notice, as published, shall be sent forthwith to the Registrar and the said notice shall be in Form No. INC-26 and shall be published-
– at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the proposed company is to be situated or is situated, and circulating in that district, and at least once in English language in an English newspaper circulating in that district; and
– on the websites as may be notified by the Central Government.
Other Points to be considered while forming Section 8 Company:-
- The Company registered under this section shall enjoy all the privileges and be subject to all the obligations of limited companies.
- A firm may be a member of the Company registered under this section.
- A Company registered under this section shall not alter the provisions of its memorandum or articles except with the previous approval of the Central Government.
- A Company registered under this section may convert itself into company of any other kind only after complying with such conditions as may be prescribed.
- Where it is proved to the satisfaction of the Central Government that a limited Company registered under this Act or under any previous company law has been formed with any of the objects specified in clause (a) of sub-section (1) and with the restrictions and prohibitions as mentioned respectively in clauses (b) and (c) of that sub-section, it may by license, allow the Company to be registered under this section subject to such conditions as the Central Government deems fit and to change its name by omitting the word “Limited”, or as the case may be, the words “Private Limited” from its name and thereupon the Registrar shall, on application, in the prescribed form, register such company under this section and all the provisions of this section shall apply to that Company.
- Where the license granted to a Company registered under Section 8 has been revoked, the company shall apply to the Registrar in Form No. INC-20 along with the fee to convert its status and change of name accordingly.
- Where a License is revoked under sub-section (6), the Central Government may, by order if it is satisfied that it is essential in the public interest, direct that the Company be wound up under this Act or amalgamated with another company registered under Section 8.
Conversion of Section 8 Company into Company of another class:-
The Companies (Incorporation) Rules, 2014 prescribes the detailed procedure to be followed by Section 8 Company for converting itself into company of another class. The application shall be made in Form No. INC-18 along with fees as prescribed in the Companies (Registration offices and fees) Rules 2014. Some of the key points are provided below:
- Special resolution is required to be passed
- Detailed disclosures to be made in the explanatory statement.
- Publication of advertisement in at least one vernacular and English newspaper circulating in the district where registered office is situated.
- Copy of notice published in newspaper, shall be sent to various authorities including but not limited to Income Tax, the charity Commissioner, chief Secretary of the State etc. intimating them that if they can make representation in respect of the said application before the Regional Director.
- Declaration from the Board
- If company has obtained any special status, privileges etc., a no objection certificate shall be required.
- The Company should have filed all its financial statement and annual return upto the financial year preceding the date of the application.
- Certificate from Chartered Accountant, Company Secretary or Cost Accountant in practice as to compliance of all provisions of the Act and Rules.
- In case Regional Directors approves the application, it may ask the company to pay for different in the price of property paid by them and the actual market price of the property, where such property has been purchased by them at concessional cost from the Government or any authority. (Rule No. 21 and 22 of the Companies (Incorporation) Rules, 2014).
(Sudish Kumar Gupta, Managing Partner, Compliance Professionals, Law Firm, Contact: +91-7827875767, Mail: [email protected], Web: www.cplaw.in)