TMI BlogChapter II - The Companies (Incorporation) Rules, 2014.X X X X Extracts X X X X X X X X Extracts X X X X ..... r these rules, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely: - 1. Short title and commencement.- (1) These rules may be called the Companies (Incorporation) Rules, 2014. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Definitions.- (1) In these rules, unless the context otherwise requires,- (a) Act means the Companies Act, 2013 (18 of 2013) ; (b) Annexure means the Annexure to these rules; (c) Form or e-Form means a form in the electronic form as specified under the Act or Rules made there under and notified by the Central Government under the Act; (d) Fees means fees as specified in the Companies (Registration offices and fees) Rules, 2014; (e) Regional Director means the person appointed by the Central Government in the Ministry of Corporate Affairs as a Regional Director; (f) section means the section of the Act; (2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of definitions details) Rules, 2014 shall have the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Registrar at the time of incorporation of the company along with its memorandum and articles. (3) The person nominated by the subscriber or member of a One Person Company may, withdraw his consent by giving a notice in writing to such sole member and to the One Person Company: Provided that the sole member shall nominate another person as nominee within fifteen days of the receipt of the notice of withdrawal and shall send an intimation of such nomination in writing to the Company, along with the written consent of such other person so nominated in Form No.INC.3. (4) The company shall within thirty days of receipt of the notice of withdrawal of consent under sub-rule (3) file with the Registrar, a notice of such withdrawal of consent and the intimation of the name of another person nominated by the sole member in Form No INC.4 along with fee as provided in the Companies (Registration offices and fees) Rules, 2014 and the written consent of such another person so nominated in Form No.INC.3. (5) The subscriber or member of a One Person Company may, by intimation in writing to the company, change the name of the person nominated by him at any time for any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectors in accordance with the provisions of section 18 of the Act . (3) The One Person Company shall alter its memorandum and articles by passing a resolution in accordance with sub-section (3) of section 122 of the Act to give effect to the conversion and to make necessary changes incidental thereto. (4) The One Person Company shall within period of sixty days from the date of applicability of sub-rule (1), give a notice to the Registrar in Form No.INC.5 informing that it has ceased to be a One Person Company and that it is now required to convert itself into a private company or a public company by virtue of its paid up share capital or average annual turnover, having exceeded the threshold limit laid down in sub-rule (1). Explanation.-For the purposes of this rule,- relevant period means the period of immediately preceding three consecutive financial years; (5) If One Person Company or any officer of the One Person Company contravenes the provisions of these rules, One Person Company or any officer of the One Person Company shall be punishable with fine which may extend to ten thousand rupees and with a further fine which may extend to one thousand rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, co., co, corporation, corp, corpn, corp.; (c) plural version of any of the words appearing in the name; (d) type and case of letters, spacing between letters and punctuation marks; (e) joining words together or separating the words does not make a name distinguishable from a name that uses the similar, separated or joined words; (f) use of a different tense or number of the same word does not distinguish one name from another; (g) using different phonetic spellings or spelling variations shall not be considered as distinguishing one name from another. Illustration (For example, P.Q. Industries limited is existing then P and Q Industries or Pee Que Industries or P n Q Industries or P Q Industries shall not be allowed and similarly if a name contains numeric character like 3, resemblance shall be checked with Three also;) (h) misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words; (i) the addition of an internet related designation, such as .com, .net, .edu, .gov, .org, .in does not make a name distinguishable from another, even where (.) is written as dot ; (j) the addition of words like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r too nearly resembles the name of a company or limited liability partnership incorporated outside India and reserved by such company or limited liability partnership with the Registrar: Provided that if a foreign company is incorporating its subsidiary company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available; (vi) any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.; Explanation.- For the purposes of this sub-clause, it is hereby clarified that the name including phrase Electoral Trust may be allowed for Registration of companies to be formed under section 8 of the Act , in accordance with the Electoral Trusts Scheme, 2013 notified by the Central Board of Direct Taxes (CBDT): Provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied with by the applicant; (xiv) the proposed name includes the word State , the same shall be allowed only in case the company is a government company; (xv) the proposed name is containing only the name of a continent, country, state, city such as Asia limited, Germany Limited, Haryana Limited, Mysore Limited; (xvi) the name is only a general one, like Cotton Textile Mills Ltd. or Silk Manufacturing Ltd., and not Lakshmi Silk Manufacturing Co. Ltd; (xvii) it is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal: (xviii) the proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like Memorandum Of Understanding with a company of such country: Provided that the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage and no company shall be incorporated using the name of an enemy count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute or Statutory; (x) Court or Judiciary; (y) Governor; (z) Development Scheme or the use of word Scheme with the name of Government (s) , State , India, Bharat or any government authority or in any manner resembling with the schemes launched by Central, state or local Governments and authorities; and (za) Bureau (7) For the Companies under section 8 of the Act , the name shall include the words foundation, Forum, Association, Federation, Chambers, Confederation, council, Electoral trust and the like etc. Every company incorporated as a Nidhi shall have the last word Nidhi Limited as part of its name. (8) The names released on change of name by any company shall remain in data base and shall not be allowed to be taken by any other company including the group company of the company who has changed the name for a period of three years from the date of change subject to specific direction from the competent authority in the course of compromise, arrangement and amalgamation. 9. Reservation of name.- An application for the reservation of a name shall be made in Form No. INC.1 along with the fee as provided in the Companies (Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es taken by him. (3) Such person shall also read and explain the contents of the memorandum and articles of association to the subscriber and make an endorsement to that effect on the memorandum and articles of association. (4) Where the subscriber to the memorandum is a body corporate, the memorandum and articles of association shall be signed by director, officer or employee of the body corporate duly authorized in this behalf by a resolution of the board of directors of the body corporate and where the subscriber is a Limited Liability Partnership, it shall be signed by a partner of the Limited Liability Partnership, duly authorized by a resolution approved by all the partners of the Limited Liability Partnership: Provided that in either case, the person so authorized shall not, at the same time, be a subscriber to the memorandum and articles of Association. (5) Where subscriber to the memorandum is a foreign national residing outside India- (a) in a country in any part of the Commonwealth, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar at the time of incorporation. (1) The following particulars of every subscriber to the memorandum shall be filed with the Registrar- (a) Name (including surname or family name) and recent Photograph affixed and scan with MOA and AOA: (b) Father s/Mother s/ name: (c) Nationality: (d) Date of Birth: (e) Place of Birth (District and State): (f) Educational qualification: (g) Occupation: (h) Income-tax permanent account number: (i) Permanent residential address and also Present address (Time since residing at present address and address of previous residence address (es) if stay of present address is less than one year) similarly the office/business addresses : (j) Email id of Subscriber; (k) Phone No. of Subscriber; (l) Fax no. of Subscriber (optional) Explanation.- information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the company; (m) Proof of Identity: For Indian Nationals: PAN Card ( mandatory) and any one of the following Voter s identity card Passport copy Driving License copy Unique Identification Num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch.- The particulars of each person mentioned in the articles as first director of the company and his interest in other firms or bodies corporate along with his consent to act as director of the company shall be filed in Form No.DIR.12 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014. 18. Certificate of incorporation.- The Certificate of Incorporation shall be issued by the Registrar in Form No.INC.11. 19. License under section 8 for new companies with charitable objects etc.- (1) A person or an association of persons (hereinafter referred to in this rule as the proposed company ), desirous of incorporating a company with limited liability under sub-section (1) of section 8 without the addition to its name of the word Limited , or as the case may be, the words Private Limited , 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 . (2) The memorandum of association of the proposed company shall be in Form No.INC.13. (3) The application under sub-rule (1) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statements, (ii) the Board s reports, and (iii) the audit reports, relating to existing companies (d) a statement showing in detail the assets (with the values thereof), and the liabilities of the company, as on the date of the application or within thirty days preceding that date; (e) 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; (f) the certified copy of the resolutions passed in general/ board meetings approving registration of the company under section 8; and (g) a declaration by each of the persons making the application in Form No.INC.15. (2) 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- (a) 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or gratuitously and, if so, the market prices prevalent at the time of acquisition and the price that was paid by the company, details of any donations or bequests received by the company with conditions attached to their utilization etc. (f) details of impact of the proposed conversion on the members of the company including details of any benefits that may accrue to the members as a result of the conversion. (2) A certified true copy of the special resolution along with a copy of the Notice convening the meeting including the explanatory statement shall be filed with the Registrar in Form No.MGT.14 along with the fee (3) The company shall file an application in Form No.INC.18 with the Regional Director with the fee along with a certified true copy of the special resolution and a copy of the Notice convening the meeting including the explanatory statement for approval for converting itself into a company of any other kind and the company shall also attach the proof of serving of the notice served to all the authorities mentioned in sub-rule (2) of rule 22. (4) A copy of the application with annexures as filed with the Regional Director shall also be filed with the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, a No Objection Certificate must be obtained, if required under the terms of the said special status, privilege, exemption, benefit or grant(s) from the concerned authority and filed with the Regional Director, along with the application. (5) The company should have filed all its financial statements and Annual Returns upto the financial year preceding the submission of the application to the Regional Director and all other returns required to be filed under the Act up to the date of submitting the application to the Regional Director and in the event the application is made after the expiry of three months from the date of preceding financial year to which the financial statement has been filed, a statement of the financial position duly certified by chartered accountant made up to a date not preceding thirty days of filing the application shall be attached. (6) The company shall attach with the application a certificate from practicing Chartered Accountant or Company Secretary in practice or Cost Accountant in practice certifying that the conditions laid down in the Act and these rules relating to conversion of a company registered under section 8 into any other kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form No.INC.20 along with the fee; (b) amended memorandum of association and articles of association of the company. (c) a declaration by the directors that the conditions, if any imposed by the Regional Director have been fully complied with. (11) . On receipt of the documents referred to in sub rule (10) above, the Registrar shall register the documents and issue the fresh Certificate of Incorporation. 23. Intimation to Registrar of revocation of licence issued under section 8 .- Where the licence 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. 24. Declaration at the time of commencement of business.- The declaration filed by a director shall be in Form No.INC.21 along with the fee as and the contents of the form shall be verified by a Company Secretary in practice or a Chartered Accountant or a Cost Accountant in practice: Provided that in the case of a company requiring registration from sectoral regulators such as Reserve Bank of India, Securities and Exchange Board of India etc, the approval from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, clearly indicating the matter of application and stating that any person whose interest is likely to be affected by the proposed alteration of the memorandum may intimate his nature of interest and grounds of opposition to the Regional Director with a copy to the company within twenty one days of the date of publication of that notice: Provided that in case no objection is received by the Regional Director within twenty one days from the date of service or publication of the notice, the person concerned shall be deemed to have given his consent to the change of registered office proposed in the application: Provided further that the shifting of registered office shall not be allowed if any inquiry, inspection or investigation has been initiated against the company or any prosecution is pending against the company under the Act. 29. Alteration of Memorandum by change of name.- (1) The change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (3) There shall also be attached to the application an affidavit from the directors of the company that 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 (4) A duly authenticated copy of the list of creditors shall be kept at the registered office of the company and any person desirous of inspecting the same may, at any time during the ordinary hours of business, inspect and take extracts from the same on payment of a sum not exceeding ten rupees per page to the company. (5) There shall also be attached to the application a copy of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as with the Registrar of the State within thirty days from the date of receipt of certified copy of the order. 32. Change of objects for which money is raised through prospectus. (1) Where the company has raised money from public through prospectus and has any unutilised amount out of the money so raised, it shall not change the objects for which the money so raised is to be applied unless a special resolution is passed through postal ballot and the notice in respect of the resolution for altering the objects shall contain the following particulars, namely:- (a) the total money received; (b) the total money utilized for the objects stated in the prospectus; (c) the unutilized amount out of the money so raised through prospectus, (d) the particulars of the proposed alteration or change in the objects; (e) the justification for the alteration or change in the objects; (f) the amount proposed to be utilised for the new objects; (g) the estimated financial impact of the proposed alteration on the earnings and cash flow of the company; (h) the other relevant information which is necessary for the members to take an informed decision on the proposed reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is capable of retention, retrieval and review, and which may thereafter be rendered into clearly legible tangible form. (3) A document may be served on the Registrar or any member through electronic transmission. (4) For the purposes of sub-rule (3), the term, electronic transmission means a communication (a) delivered by (i) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, which the Registrar or the member has provided from time to time for sending communications to the Registrar or the member respectively; (ii) posting of an electronic message board or network that the Registrar or the member has designated for those communications, and which transmission shall be validly delivered upon the posting; or (iii) other means of electronic communication, in respect of which the Registrar or the member has put in place reasonable systems to verify that the sender is the person purporting to send the transmission, and (b) that creates a record that is capable of retention, retrieval and review, and which may thereafter be rendered into clearly legible tangible form. (5) For the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
