Shifting of Registered Office of Company | Companies Act, 2013

Background:

Section 12 of the Companies Act, 2013 makes it mandatory for every company to maintain a registered office at all times which capable of receiving and acknowledging all communications and notices as may be addressed to it. The situation clause of Memorandum of Association contains the state in which the registered office of the company is situated.

However, sometimes it happens so that the registered office needs to be shifted to another place for better management of the company.

The shifting can be done in four types

KEY Highlights are summarized as under:

Stepwise Procedure

CATEGORY I : WITHIN THE LOCAL LIMITS OF (CITY/TOWN/VILLAGE) 

1) A company has to arrange a board meeting and pass a board resolution for shifting registered office of the company to another place within the local limits of City/Town/Village, where it is presently situated

2) The company has to file the form INC-22 with MCA. It must be filed within 30 days from the date of passing of the board resolution to concerned ROC along with the following documents [Rule 27]

a) A copy of Board resolution

b) Proof of registered office address(Conveyance/lease deed/rent agreement along with the rent receipts)

c) A proof that the company is permitted to use the address as the registered office of the company if the same is owned by any other entity/ person(not taken on lease by company)

d) List of all companies(specifying their CIN) having the same registered office address, if any

3) Company shall print or affix paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in all items of stationery, signboards, record, registers, share certificates and all other documents, where the name of registered office is mentioned, in a conspicuous position, in legible letters[Section 12(3)]

CATEGORY II: FROM ONE CITY TO ANOTHER CITY (WITHIN THE SAME STATE AND ROC) 

1) A company has to arrange a board meeting for convening general meeting for shifting the registered office of the company to another place outside the local limits of City/Town/Village, where it is presently situated but within the same state

2) Conduct voting through postal ballot and /or through electronic means as may be applicable

3) Issue notice of general meeting in accordance with provision of sec 101 & 102

4) Convene a general meeting for shifting the registered office of the company and pass special resolution in accordance with provision of sec 12(5)

5) Obtain approval of company in general meeting by way of passing special resolution; or in case of listed companies and companies having more than 200 members, the said resolution are required to be passed through postal ballot in accordance with provision of sec 110(1) read with Rule 22(16)(c) of Companies (Management & representation) Rules, 2014

6) File E form MGT-14 with ROC within 30 days from the date of passing special resolution in accordance with provision of sec 117 alongwith the following documents

a) CTC of the special resolution with explanatory statement

b) Notice of the general meeting along with the prescribed filing fee.

7) The company has to file the form INC-22 with MCA. It must be filed within 30 days of the change of situation in accordance with provisions of Rule 27 along with the following documents

a) Proof of registered office address.

b) Utility bills.

c) A proof that the company is permitted to use the address as the registered office of the company

d) List of all companies(specifying their CIN) having the same registered office address, if any

8) Company shall print or affix paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in all items of stationery, signboards, record, registers, share certificates and all other documents, where the name of registered office is mentioned, in a conspicuous position, in legible letters[Section 12(3)]

CATEGORY III: FROM STATE ONE ROC TO ANOTHER ROC (WITHIN THE SAME) 

1) A company has to arrange a board meeting for

a. Deciding the new place of registered office

b. Conducting the general meeting for shifting the registered office of the company

2) Conduct voting through postal ballot and /or through electronic means as may be applicable

3) Issue notice of general meeting in accordance with provision of sec 101 , 102 & 102(2)

4) Convene a general meeting for shifting the registered office of the company and pass special resolution in accordance with provision of sec 12(5)

5) Obtain approval of company in general meeting by way of passing special resolution; or in case of listed companies and companies having more than 200 members, the said resolution are required to be passed through postal ballot in accordance with provision of sec 110(1) read with Rule 22(16)(c) of Companies (Management & representation) Rules, 2014

6) Convene another board meeting for

a) Granting authority to one of the director for execution of declaration confirming that

i. company has not defaulted in payment of workmen dues & consent of creditors

ii. no retrenchment of employees

iii. Not seek change in jurisdiction of court where cases for prosecution are pending

b) Appointment of professional to represent before RD & for execution of POA

c) Giving authority to one of the director to digitally sign & submit the application

7) Preparation of Minutes as per Sec 118 , SS 1 & SS 2

8) File E form MGT-14with ROC within 30 days from the date of passing special resolution in accordance with provision of sec 117 along with the following documents

a) CTC of the special resolution with explanatory statement

b) Notice of the general meeting along with the prescribed filing fee.

c) Certified copy of the Altered Memorandum of association of the company

9) Obtain NOC from each of the creditors, depositors and debenture holders which will be attached to application to be made with regional director

10) Intimate Chief secretary of the state as to the proposed shifting and the employees interest is not adversely affected consequent to the proposed shifting[Rule 28(1)(e)]

11) The company has to file the form INC-23 with MCA in accordance with provisions of Rule 28(1) along with the following documents

a) Copy of MOA & AOA

b) Copy of Notice along with Explanatory statement

c) Certified copy of special resolution

d) POA in favour of professional

e) List of creditors & debenture holders

f) NOC received from creditors/debenture holders /depositors

g) Declaration by Company secretary of the company & directors in regards to the correctness of list of creditors and affairs of the company

h) Declaration by director that no retrenchment of employees

i) Declaration by KMP or any two directors that company has not defaulted in payment of workmen dues & consent of creditors

j) Declaration not seek change in jurisdiction of court where cases for prosecution are pending

k) Details of prosecution/inspection/inquiry/investment filed against the company and its officer in default

l) Proof of service of the application to the registrar, Chief secretary of the state, SEBI or any other regulatory authority

12) The company will receive the confirmation from RD within 30 days from the date of making application [sec 12(6)]

13) A certified copy of the confirmation received from RD shall be filed within 60 days in form INC 28 with ROC

14) Confirmation order received from RD is also required to submit physically with both ROCS’.

15) The company has to file the form INC-22 with MCA. It must be filed within 30 days of the change of situation[date of receipt of certificate from ROC under sec 12(6)] in accordance with provisions of Rule 27 along with the following documents

a) Proof of registered office address.

b) Utility bills.

c) A proof that the company is permitted to use the address as the registered office of the company

d) List of all companies(specifying their CIN) having the same registered office address, if any

16) Ensure that every alteration made in the Memorandum of Association of a company shall be noted in every copy of Memorandum or Article[Sec 15(1)]

17) Company shall print or affix paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in all items of stationery, signboards, record, registers, share certificates and all other documents, where the name of registered office is mentioned, in a conspicuous position, in legible letters[Section 12(3)]

CATEGORY IV: FROM ONE STATE TO ANOTHER STATE (OUTSIDE THE JURISDICTION OF EXISTING ROC)

1) A company has to arrange a board meeting for

a) Deciding the new place of registered office

b) Granting authority to one of the director to take necessary steps

2) Convene another board meeting for

a) Confirming the list of creditors along with the value of debts or claim payable are correct

b) Confirming that no retrenchment of employees due to shifting of Registered office

c) Appointment of professional to represent before RD & for execution of POA or a Vakalatnama

d) To decide day, date and place for Convening of a general meeting and issuing notice to shareholders for shifting the registered office of the company from one state to another

e) To publish advertisement in newspaper

f) Giving authority to one of the director to digitaly sign & submit the application

3) Issue at least 21 clear days notice of general meeting

4) Convene a general meeting for shifting the registered office of the company from one state to another and pass special resolution in accordance with provision of sec 13(1)

5) Obtain approval of company in general meeting by way of passing special resolution; or in case of listed companies and companies having more than 200 members, the said resolution are required to be passed through postal ballot in accordance with provision of sec 110(1) read with Rule 22(16)(c) of Companies (Management & representation) Rules, 2014

6) Preparation of Minutes as per Sec 118 & SS 2

7) File E form MGT-14with ROC within 30 days from the date of passing special resolution in accordance with provision of sec 13(6) along with the following documents

a) CTC of the special resolution with explanatory statement

b) Notice of the general meeting along with the prescribed filing fee.

c) Certified copy of the Altered Memorandum of association of the company

8) Prepare list of the creditors and debenture holders [rule 30(2)]

9) A duly authenticated copy list of the creditors need to be kept at registered office [rule 30(3)]

10) Publish the notice in form INC-26 in the form of advertisement not more than 30 days before date of filing of an application in

a) Vernacular newspaper in the principal vernacular language of that district in which registered office of the company is situated and

b) English language in English newspaper in the state in which registered office of the company is situated

11) Serve copy of above advertisement immediately after its publication to central government [rule 30(5)]

12) Serve individual notice in form INC-26 by registered post with ack due to

a) each debenture holder & creditors of the company[rule 30(5)(b)]

b) ROC

c) SEBI(in case of listed company)

d) Chief secretary of state or union territory where the registered office is situated

e) Other regulatory body (in case if company is regulated by special Act. [rule 30(5)(c)]

13) The company has to file the form INC-23 with MCA in accordance with provisions of Rule 30(1) & (5) read with sec 13(4) along with the following documents

a) Copy of MOA & AOA

b) Certified copy of special resolution along with Minutes of EOGM

c) List of creditors & debenture holders

d) Declaration in accordance with Rule 30(2)

e) A copy of Acknowledgement of serving copy of notice along with application to the registrar, Chief secretary of the state, SEBI or any other regulatory authority

f) Copy of Newspaper advertisement

g) Copy of Objection received from any person whose interest is likely to be effected by the proposed application

h) Copy of Board resolution or POA or the executed Vakalatnama

14) Where objection have been received

a) The Central Government (RD) shall hold a hearing or hearings and direct the company to file an affidavit confirming that the consensus is reached at the hearing, the Central Government (RD) shall pass an order approving the shifting, within 60 days of filing the application

b) Where no consensus is reached at the hearings the company shall 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 upon execution of which the Central Government (RD) shall pass an order confirming or rejecting the alteration within 60 days of filing the application

15) Where no objection has been received from any of the parties, who have been duly served, the application may be put up for orders without hearing and the order approving or rejecting the application shall be passed

16) File a certified copy of the order of the RD approving the alteration within 30 days in form INC 28 with ROC[Sec 13(7)]

17) The ROC of the state where the registered office is being shifted, shall issue a fresh certificate of Incorporation[Sec 13(7)]

18) The company has to file the form INC-22 with MCA. It must be filed within 30 days of the change of situation in accordance with provisions of Rule 27 along with the following documents

a) Proof of registered office address.

b) Utility bills.

c) A proof that the company is permitted to use the address as the registered office of the company

d) List of all companies(specifying their CIN) having the same registered office address, if any

19) Ensure that every alteration made in the Memorandum of Association of a company shall be noted in every copy of Memorandum or Article [Sec 15(1)]

20) Company shall print or affix paint or affix its name, and the address of its registered office, and keep the same painted or affixed, on the outside of every office or place in which its business is carried on, in all items of stationery, signboards, record, registers, share certificates and all other documents, where the name of registered office is mentioned, in a conspicuous position, in legible letters[Section 12(3)]