Amendment in Incorporation Rules – Registered Office related

Ministry of Corporate Affairs came out with 3^rd amendment of the year to the Companies (Incorporation) Rules, 2013. The Companies (Incorporation) 3^rd Amendment Rules, 2016 published in Official Gazette on 27^th July 2016 and came into force from that date, is available online now. In this second blog post of 3 post series, we will discuss these amendments in rules 28, 29, 30 and 36.

Shifting of registered office within state pending inquiry etc

Presently second proviso to sub – rule (2) of rule 28 does not permit to shift registered office of a company from jurisdiction of one registrar to another pending inquiry, inspection or investigation. Second proviso read as under –

“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.”

One interpretation was, once such inquiry, inspection or investigation has been initiated, company may not shift its registered office ever. Now, one more proviso was inserted to the effect that if no prosecution is envisaged or pending after such inquiry, inspection or investigation, shifting of registered office shall be allowed. New proviso read as under –

“Provided also that 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 shall be allowed.”

Change of name

There is no substantial change except, once default made good, change of name shall be allowed. Earlier sub – rule (1) of rule 29 read as under –

“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 debentures.”

Now, after the amendment, sub – rule (1) shall read as under –

“The change of name shall not be allowed to a company which has not filed annual returns or financial statements due for filing with the Registrar or which has failed to pay or repay matured deposits or debentures or interest thereon:

Provided that the change of name shall be allowed upon filing necessary documents or payment or repayment of matured deposits or debentures or interest thereon as the case may be.”

One important change to note is – now, there is no restriction based on any “other” document due for filing except annual return and financial statements.

Shifting of registered office from state

There are three minor but significant changes by these amendment rules.

Now for shifting of registered office from one state or union territory to another state or union territory shall require no objection certificate (NOC) from Reserve Bank of India, in case of a registered non – banking finance company. Newly inserted clause to sub – section (1) to section 30 read as under –

“(j) a copy of the No Objection Certificate from the Reserve Bank of India where the applicant is a registered Non- Banking Financial Company”

Notice for shifting for registered office from one state/UT to another is now not required to be giver to Securities and Exchange Board of India (SEBI) in case of listed companies. clause (c) to sub – rule (6) of rule shall now amended as under –

“(c) serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, 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.”

Presently proviso to sub – rule (10) of rule 30 does not permit to shift registered office of a company from jurisdiction of one state to another pending inquiry, inspection or investigation. proviso read as under –

“Provided 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.”

One interpretation was, once such inquiry, inspection or investigation has been initiated, company may not shift its registered office ever. Now, one explanation is inserted to the effect that if no prosecution is envisaged or pending after such inquiry, inspection or investigation, shifting of registered office shall be allowed. New Explanation read as under –

“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 shall be allowed.”

I wonder why similar amendment in rule 28 is made by proviso but in rule 30 by explanation.

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