Notification date: 16th October 2019
Effective date: Date of Publishing in Official Gazette
MCA has notified the Companies Incorporation Eighth Amendment Rules, 2019 on 16th October, 2019. There are three amendments under the Companies Incorporation 8th Amendment Rules, 2019.
| S.no. | Rule / Sub rule | Pre Amendment | Post Amendment |
| 1. | Rule 8 A, Sub rule (1), clause b Names which resemble too nearly with name of existing company. | (b) save as provided in section 35 of the Trade Marks Act, 1999 (47 of 1999), the name includes a trade mark registered under the Trade Marks Act, 1999 and the rules framed thereunder in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out, unless the consent of the owner or applicant for registration, of the trade mark, as the case may be, has been obtained and produced by the promoters; | Following words shall be omitted:
“or applicant for registration” |
| 2. | Rule 25 A , Sub rule (1) , forth provisio , item (iii) Active Company Tagging Identities and Verification (ACTIVE) | Forth Proviso: Provided also that no request for recording the following event based information or changes shall be accepted by the Registrar from such companies marked as “ACTIVE-non-compliant”, unless “e-Form ACTIVE” is filed –
(i) SH-07 (Change in Authorized Capital); (ii) PAS-03 (Change in Paid-up Capital); (iii)DIR-12(Changes in Director except cessation); (iv) INC-22 (Change in Registered Office); (v) INC-28 (Amalgamation, de-merger) |
In sub-rule (1), in the fourth proviso, for the item (iii), the following shall be substituted, namely. –
“(iii) DIR-12 (changes in Director except in case of: (a) cessation of any director or (b) appointment of directors in such company where the total number of directors are less than the minimum number provided in clause (a) of sub-section (1) of section 149 on account of disqualification of all or any of the director under section 164. (c) appointment of any director in such company where DINs of all or any its director(s) have been deactivated. (d) appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal under the provisions of this Act or under the Insolvency and Bankruptcy Coder, 2016).”. |
| 3. | Rule 28, after Sub-Rule (1), Shifting of registered office within the same State | Rule 28 , Sub Rule (1), An application seeking confirmation from the Regional Director for shifting the registered office within the same State from the jurisdiction of one Registrar of Companies to the jurisdiction of another Registrar of Companies, shall be filed by the company with the Regional Director in Form No. lNC.23 along with the fee and following documents-
(a) Board Resolution for shifting of registered office; (b) Special Resolution of the members of the company approving the shifting of registered office; (c) 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 ; (d) a declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending; (e) 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”. |
Following points inserted after sub rule (1) of Rule 28:
“(2) The Regional Director shall examine the application referred to in sub-rule (l) and 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 application complete in all respects. (3) The certified copy of order of the Regional Director, approving the alternation of memorandum for transfer of registered office company within the same State, shall be filed in Form No.INC-28 along with fee with the Registrar of State within thirty days from the date of receipt of certified copy of the order.”. |
Relevance of the above amendments:
- In Rule 8 A, the name of the company is undesirable if the name includes a trade mark registered under the Trade Marks Act, 1999 and the rules framed thereunder. However, if the consent of the owner of the trade mark has been obtained and produced by the promoters, the name is not undesirable and can be allocated to a company.
- There are certain other exceptions added to the item no. (iii) of the forth provisio of Sub rule (1) of Rule 25 A. In Sub Rule (1) of Rule 25 A, an “ACTIVE-non-compliant” company is restricted to record the specified event based information or changes which includes filing of Form DIR-12. Post amendment, there are certain exceptions being provided to item (iii) filing of Form DIR-12 i.e. Form DIR-12 cannot be filed except in the following cases:
(a) cessation of any director or
(b) appointment of directors in such company where the total number of directors are less than the minimum number provided in clause (a) of sub-section (1) of section 149 on account of disqualification of all or any of the director under section 164.
(c) appointment of any director in such company where DINs of all or any its director(s) have been deactivated.
(d) appointment of director(s) for implementation of the order passed by the Court or Tribunal or Appellate Tribunal under the provisions of this Act or under the Insolvency and Bankruptcy Coder, 2016.
- In Rule 28, there is an insertion of two sub rules viz. sub rule (2) & sub rule (3), after sub rule (1). In Sub rule (2), to speed up the entire process, the application for change in registered office address of the company within same state, may be put up with the RD (Regional Director) without hearing, & the decision on the same shall be provided within a period of 15 days from the receipt of complete application. Sub rule (3) directs filing of order by the RD in Form INC 28 along with requisite fees within 30 days from the date of receipt of the certified copy of the order from RD.
Author: CS Shikha Pubbi
Author Bio
