Provisions: Section 12, 13 of Companies Act, 2013

Rule 25, 27, 28, 30, 31 Companies (Incorporation) Rules, 2014

Section 12 mandates all the companies to have registered office either at the time of incorporation or within 30 days of incorporation. Registered office of a company is a place where all the communications and notices may be sent. The situation clause of Memorandum of Association contains the state in which registered office of the company is situated. However, the notice of detailed address is required to be given in form INC-22 to Registrar of Companies. Any change in the situation of registered office is also required to be notified to Registrar of Companies within 30 days in e- Form INC- 22 along with prescribed fees.

The compliance under Companies Act, 2013 for change in registered office are summarized in the following table:

Shifting of registered office

Nature of Approval e-Forms

Alteration of MOA

Within local limits of city, town or village Board Resolution INC -22 (Notice of situation or change of situation of registered office) within 30 days of Board resolution

NA

Outside local limits of city, town or village, within the same RoC and same state Board Resolution + Special Resolution • MGT – 14 within 30 days of Special Resolution

• INC – 22 within 30 days of Special Resolution

NA

From one RoC to other within the same state Board Resolution + Special Resolution + Approval of Regional Director • MGT – 14 within 30 days of Special Resolution

• INC – 23 (Approval of RD to shift the Registered Office from one ROC to another within the same State)

• INC – 28 (Notice of Order of the Court or Tribunal or any other competent authority) within 60 days from the date of order of Regional Director

• INC – 22 within 30 days from the date of order of Regional Director

NA

From one state to another, outside the jurisdiction of existing RoC Board Resolution + Special Resolution + Approval of Regional Director • MGT – 14 within 30 days of Special Resolution

• INC – 23 (Approval of RD to shift the Registered Office from one state to another) atleast 1 month after serving notice to creditors and publication of newspaper advertisement

• INC – 28 (Notice of Order of the Court or Tribunal or any other competent authority) within 30 days from the date of receipt of order of Regional Director

• INC – 22 within 30 days from the date of order of Regional Director

Yes

Procedure for shifting of registered office from jurisdiction of one Registrar of Companies to other within the same state:

1. Convene a board meeting by issuing notices to all directors.

2. Hold a board meeting and to decide on:

  • shifting of registered office from Jurisdiction of one RoC to another,
  • calling of Extra Ordinary General Meeting, fixing of day, date and time of Extra Ordinary General Meeting.
  • Authorizing Company Secretary or any director for moving an application to Regional Director in form INC-23 and other miscellaneous compliance required in this behalf.

3. Issue notice of EGM along with clear agenda of business, draft resolution for shifting of registered office from jurisdiction of one Registrar to another and explanatory statement to all members.

4. Hold the extra ordinary general meeting on appointed date and time and obtain approval of members by passing a special resolution for shifting of registered office from jurisdiction of one Registrar to another [Section 12(5)].

5. File form MGT – 14 within 30 days of passing of special resolution along with notice of EGM, Certified True Copy of special resolution with explanatory statement annexed thereto.

6. File an application for seeking confirmation from the Regional Director (under whose jurisdiction existing registered office of the company is situated) in e- form INC-23 along with prescribed fee, accompanied by following documents [Section 12(5) R/w Rule 25 Chapter 2]:

7. Board Resolution for shifting of registered office;

8. Special Resolution of the members of the company approving the shifting of registered office;

9. A declaration given by the Key Managerial Personnel or any two directors authorised by the Board, that the company has not defaulted in payment of dues to its workmen and has either the consent of its creditors for the proposed shifting or has made necessary provision for the payment thereof;

10. A declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending;

11. Acknowledged copy of intimation to the Chief Secretary of the state as to the proposed shifting and that the employees interest is not adversely affected consequent to proposed shifting.

12. Obtain a confirmation order from Regional Director for shifting of registered office from jurisdiction of one Registrar to another and file same with ROC in form INC-28 along with the prescribed fees within 60 days from the date of order [Section 12(6)].

13. Notify Registrar in e-form INC – 22 within 30 days from the receipt of confirmation order of Regional Director along with prescribed fees and accompanied by following documents [Section 12(4)]:

(a) the registered document of the title of the premises of the registered office in the name of the company; or

(b) the notarized copy of lease or rent agreement in the name of the company along with a copy of rent paid receipt not older than one month;

(c) the authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the company as its registered office; and

(d) the proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, as the case may be, which is not older than two months;

(e) copy of order of competent authority.

14. Get the new address of registered office printed on all company’s business letters, bill heads, letter papers, notices and other official publications (section 12).

Procedure for shifting of registered office from one State to another:

1. Convene a board meeting by issuing notices to all directors.

2. Hold a board meeting and to decide on:

  • shifting of registered office from one state to other,
  • alteration of Memorandum of Association,
  • calling of Extra Ordinary General Meeting, fixing the day, date and time of Extra Ordinary General Meeting,
  • Authorizing Company Secretary or any director to move an application to Regional Director in form INC-23 and other miscellaneous compliance required in this behalf.

3. Issue notice of EGM along with clear agenda of business, draft resolutions for shifting of registered office from one State to another, Alteration of Memorandum of Association due to such change and explanatory statements to all members.

4. Hold the extra ordinary general meeting on appointed date and time and obtain approval of members by passing a special resolution for shifting of registered office from one State to another and Alteration of Memorandum of Association due to such change.

5. File form MGT – 14 within 30 days of passing of special resolution along with notice of EGM, Certified True Copy of special resolutions with explanatory statements annexed thereto.

6. The Company shall, not more than thirty days before the date of filing the application in Form No. INC.23 –

  • Publish an advertise in the Form No. INC-26 in the vernacular newspaper in the vernacular language in the district and in English language in an English newspaper with the widest circulation in the state in which the registered office of the company is situated;
  • serve, by registered post with acknowledgement due, individual notice on each debenture-holder and creditor of the company; and
  • serve, by registered post with acknowledgement due, a notice and copy of the application to the Registrar and to the SEBI, in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force.

7. File an application for seeking confirmation from the Regional Director (under whose jurisdiction existing registered office of the company is situated) in e- form INC-23 along with prescribed fee, accompanied by following documents [Section 13(4) R/w Rule 30 Chapter 2]:

a). copy of Memorandum of Association, with proposed alterations;

b). a copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favour or against the resolution;

c). a copy of Board Resolution or Power of Attorney or the executed Vakalatnama, as the case may be;

d). a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date of filing of application by not more than one month with following details:

  • the names and address of every creditor and debenture holder of the company;
  • the nature and respective amounts due to them in respect of debts, claims or liabilities

The above mentioned list of creditors and debenture holders shall be accompanied by declaration signed by the Company Secretary of the company, if any, and at least two directors of the company, one of whom shall be a managing director, where there is one, stating that:

(i) they have made a full inquiry into the affairs of the company and concluded that the list of creditors are correct, and that the estimated value as given in the list of the debts or claims payable on a contingency or not ascertained are proper estimates of the values of such debts and claims and that there are no other debts of or claims against the company to their knowledge, and

(ii) no employee shall be retrenched as a consequence of shifting of the registered office from one state to another state and also there shall be an application filed by the company to the Chief secretary of the concerned State Government or the Union territory.

e). an acknowledgment of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.

f). an authenticated copy of the advertisements in newspapers and notices issued to debenture-holders and creditors, copies of objections received, and tabulated details of responses along with the counter response from the company received either in the electronic mode or in physical mode in response to such advertisements and notices.

8. Where any objection has been received:

(a). the Central Government will hold a hearing and direct the company to file an affidavit to record the consensus reached at the hearing and upon execution of such affidavit, the Central Government shall pass an order approving the shifting, within sixty days of filing the application;

(b). where no consensus is reached at the hearings the company will have to file an affidavit specifying the manner in which objection is to be resolved within a definite time frame, duly reserving the original jurisdiction to the objector for pursuing its legal remedies, even after the registered office is shifted and upon execution of such affidavit the Central Government shall pass an order confirming or rejecting the alteration within sixty days of the filing of application.

9. Where no objection has been received from any person in response to the advertisement or notice debenture holders and creditors (U/R. 30(5), Chapter 2) or otherwise, the application may be put up for orders without hearing and the order either approving or rejecting the application shall be passed within fifteen days of the receipt of the application.

10. Upon obtaining an order from Regional Director for shifting of registered office from one State to another, file same with registrar of each state in form INC-28 along with the prescribed fees within 30 days from the date of receipt of the order. [Section 13(7) R/w Rule 31, Chapter 2].

11. Notify Registrar in e-form INC – 22 within 30 days from the receipt of confirmation order of Regional Director along with prescribed fees and accompanied by following documents [Section 12 (4)]:

(a) the registered document of the title of the premises of the registered office in the name of the company; or

(b) the notarized copy of lease or rent agreement in the name of the company along with a copy of rent paid receipt not older than one month;

(c) the authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the company as its registered office; and

(d) the proof of evidence of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner or document, as the case may be, which is not older than two months;

(e) copy of altered Memorandum of Association;

(f) copy of order of competent authority.

12. Get the new address of registered office printed on all company’s business letters, bill heads, letter papers, notices and other official publications (Section 12).

The shifting of registered office shall not be allowed where any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Act. However, on completion of such inquiry, inspection or investigation as a consequence of which no prosecution is envisaged or no prosecution is pending, shifting of registered office may be allowed.

(Nivedita Nikam, Practicing Company Secretary can be contacted For any query / information / suggestion at niveditapcs.ngp@gmail.com)

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