CS Adil Khan
>History– The unregistered company could be incorporated under the previous law i.e. Companies Act 1956 under PART IX: – COMPANIES AUTHORIZED TO REGISTER UNDER THIS ACT under the preview of section 565 to 581 of the Companies Act 1956.
In which the companies having seven or more members could be registered under this part in two ways one as joint-stock company or company not being a joint-stock company by delivering the necessary documents required under this Act as per their respective documents now under the Companies Act 2013, the concept of registration as joint-stock company has been vanished, now the companies can registered under the part I of Chapter XXI (Companies Authorized to Register under this Act) of the Companies Act 2013 as unregistered Companies.
Joint-stock company-
A joint-stock company means a company having a permanent paid-up or nominal share capital of fixed amount divide into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in the one way and formed on the principle of having for its members the holders of those shares or that stock, and no other persons.
>Introduction– The term unregistered company is not defined under the Companies Act 2013, The Companies defined in the section 366(1) of the companies Act 2013 which are not registered and applies for registration under part I of Chapter XXI (Companies Authorized to Register under this Act) of the Companies Act 2013 are considered as unregistered companies.
However section 375 (4) (d) of the Companies Act 2013 explained the expression of unregistered company as follows-
The business entity considered as unregistered company-
o Partnership firm,
o Limited Liability Partnership,
o Society,
o Co-operative society association or company consisting of more than seven members.
The business entity not considered as unregistered company-
A railway company incorporated under any Act of Parliament or other Indian law or any Act of Parliament of the United Kingdom;
A company registered under this Act;
A company registered under any previous Companies law i.e. The Indian Companies Act, 1882 and The Companies Act, 1956 and not being a company the registered office whereof was in Burma, Aden, Pakistan immediately before the separation of that country from India.
>Incorporation of an unregistered company
As per section 366 of the Companies Act 2013 read with Rule 3 of the Companies (Authorised to Registered) Rules, 2014:
o any partnership firm,
o Limited Liability Partnership,
o Society, (Not yet notified)
o Co-operative society association (Not yet notified)
o company consisting of more than seven members (Not yet notified)
Society, Co-operative society association OR company consisting of more than seven members (not yet notified hence only partnership firm and LLP can apply for Registration under Part I of Chapter XXI of the Companies Act 2013 as Companies Limited by shares or Companies Limited by guarantee or Unlimited Companies in form INC 7 with the additional form URC 1 having following documents attached in the form URC 1.
The following attachments are mandatory as per (Rule 3, 4, 5 of the Companies (Authorised to Registered) Rules, 2014 and section 374 of the Companies Act 2013) and : MCA the Companies (Authorized to Registered) Rules 2014 as amended on 31st may 2016.
1. Particulars of members/ partners along with the details of shares held by them.
2. Declaration of two or more directors verifying the particulars of all members/ partners
3. Affidavit from all the members/partners for dissolution of the entity.
4. Copy of the instrument constituting or regulating the entity.
5. Copy of certificate of registration of the entity, if any.
6. Copy of newspaper advertisement seeking objections, if any within twenty one clear days from the date of publication of notice and the said advertisement shall be in Form No. URC 2, which shall be published in a newspaper and in English and in the principal vernacular language of the district in which Firm/ Limited Liability Partnership is in existence and circulated in that district.
Note: 21 clear days means that the application for incorporation of Companies under this part will file after completing of 21 days from the date when the notice is published in URC 2.
7. Certificate from a CA/CS/CWA certifying the compliance with all the provisions of Stamp Act, to the extent applicable.
8. An undertaking that the proposed directors shall comply with the requirements of Indian Stamp Act, 1899.
Note: MCA the Companies (Authorized to Registered) Rules 2014 as amended on 31st may 2016
9. Copy of Latest Income Tax Return. (Rule 3(I) (a) (d) (xi) of amended rule 30th may 2016.
Note: MCA the Companies (Authorised to Registered) Rules, 2014 as amended on 31st may 2016
10. Statement of Assets and Liabilities of the Company duly certified by the chartered Accountants in practice not later than 30 days from the date of filling of form for incorporation.
Note: MCA the Companies (Authorized to Registered) Rules 2014 as amended on 31st may 2016
11. Written consent from:
o The majority of members whether present in person OR
o By proxy at a general meeting agreeing for registration.
12. NOC from the Concerned Registrar of LLP or Firm,
If NOC not given by the Concerned Registrar than
A copy of the notice, as published and the copy of the notice served on Registrar (LLP) or Firm along with proof of service, shall be attached after the expiry of the 21 days from the date of submission of the notice with Form No. URC. 1.
Conditional:
1. Consent of majority of members is mandatory to be attached in case company is limited by shares or Unlimited company.
2. Consent of at least three-fourth of members agreeing for registration under this part is mandatory to be attached in case company is limited by guarantee.
3. No objection certificate from the concerned Registrar of Firms or Registrar of Companies (LLP) is mandatory to be attached in case type of entity is Firms/ LLP.
4. No objection certificate/ Consent given by secured creditors is mandatory to be attached in case of any secured debt outstanding as on the date of application.
5. Copy of the resolution declaring the amount of guarantee is mandatory in case company is limited by guarantee.
6. Copy of the Statement of Accounts of the company duly audited by the auditor of the company not later than 15 days from the date of filing the form with the audited financial statement of the previous years.
>Obligations of Unregistered Companies-
As per Section 374 of the Companies Act 2013 read with the Rule 4 and 5 of the Companies (Authorized to Registered) Rules, 2014 along with the MCA the Companies (Authorized to Registered) Rules 2014 as amended on 31st may 2016, the companies seeking registration under this part have to comply the following obligations.
1. Every ‘company’ which is going to registered under the provision of Part I of Chapter XXI shall publish an advertisement within twenty one clear days from the date of publication of notice and the said advertisement shall be in Form No. URC. 2, which shall be published in a newspaper and in English and in the principal vernacular language of the district in which Limited Liability Partnership or Firm is in existence and circulated in that district.
2. Notice shall be given to the concerned Registrar (LLP) or Firm under which it was originally registered and shall require that objections, if any to be made by such concerned Registrar of Companies (LLP) or Firm to the Registrar, shall be made within a period of twenty-one days from the date of such notice, failing which it shall be presumed that they have no objection and the notice shall disclose the purpose and substance of matters in relation to objections;
3. In case of the registration of Limited Liability Partnership or Firm into a company under these rules, a declaration by the said Limited Liability Partnership that it has filed all documents which are required to be filed under the Liability Partnership Act with the Registrar (LLP) and the declaration shall be attached with Form No. URC. 1.
4. Where a Limited Liability Partnership or Firm has obtained a certificate of registration under section 367, an intimation to this effect shall be given, within fifteen days of such registration to the concerned Registrar (LLP) or Firm under which it was originally registered, along with necessary documents or papers for its dissolution as Limited Liability Partnership or Firm.
5. Statement of accounts, prepared not later than fifteen days preceding the date of seeking registration and certified by the Auditor together with the Audited Financial Statements of the previous year, wherever applicable shall be attached with Form No. URC. 1.
6. A statement of proceedings, if any, by or against the Limited Liability Partnership or Firm which are pending in any court or any other Authority shall be attached with Form No. URC. 1.
7. Ensure that secured creditors of the company, prior to its registration under this Part, have either consented to or have given their no objection to company’s registration under this Part.
8. File an affidavit, duly notarized, from all the members or partners that all the necessary documents or papers shall be submitted to the registering or other authority with which the company was earlier registered, for its dissolution as partnership firm, limited liability partnership, cooperative society, society or any other business entity, as the case may be.
>Conclusion-
After going through the provisions of the Companies Act 2013 and Companies (Authorized to Registered) Rules 2014, it is clarified that the already running business entity Partnership firm, Limited Liability Partnership, who are desirous to incorporate as a Company may convert their existing business in a Corporate form, complying the Part I of Chapter XXI of the Companies Act 2013 and Companies (Authorized to Registered) Rules 2014 with the already provisions applicable to the Incorporation of Companies.
