Ministry of Corporate Affairs notified by notification G.S.R. 936(E) on 1st October 2016 the Companies (Incorporation) Fourth Amendment Rules, 2016 amending the Companies (Incorporation) Rules, 2014 with effect from date of publication in official gazette means 1st October 2016. These Rules introduced Form INC – 32 with two linked forms for incorporation of company. We discussed law related thereto in last post here and will discuss these forms in this post.
In work flow approach, we prepare all supporting documents first before filing and we will discuss here in same manner.
e – Memorandum of Association
Newly introduced electronic Form INC – 33 shall be a linked form for Form INC – 32. With introduction of this form preparing physical memorandum of a company shall be thing of past soon.
By entering SNR of form INC – 1, name of the company and state for registered office shall be prefilled.
Applicant need to select Table applicable to the company from table A to E of Schedule of the Companies Act, 2013.
Objects of the company shall be entered by the applicant in maximum 20,000 characters. Matters which are necessary in furtherance of objects shall be entered by the applicant in maximum 1,00,000 characters.
Liability clause is responsive to the table selected by the applicant.
In case of company limited by shares or having share capital, share capital of the company, number of shares with its class face value shall be mentioned. There may be 10 classes of share capitals in this e- memorandum. In case of company not having share capital, there shall be liability and contribution clause.
The subscriber clause is also responsive. Subscribers detail shall be entered into with Name, Address, Description, Occupation, with identification document details, and signed with digital signature certificate. This form allows maximum seven subscribers and one witness.
After filing details, applicant needs to check form. This form has no requirement for pre-scrutiny.
e – Articles of Association
Newly introduced electronic Form INC – 34 shall be a linked form for Form INC – 32. With introduction of this form preparing physical Articles of company shall be thing of past soon.
By entering SRN of form INC – 1, name of the company shall be prefilled.
Applicant need to select table of applicable of applicable articles from table F to J of schedule I of the Companies Act, 2013. Standard set of articles shall be populated on selection of table. To hide any article, click on 1st check box ‘Not applicable’ against the respective article. To entrench the article, click on 2nd check box ‘Altered’ against the respective article.
Presently, I feel form INC – 34 need some backend improvement as it is not properly working.
When Government introduced INC – 29, I had opinion that this is not ease of doing business but consolidation of hardship. Present Form INC – 32 is introduction of old wine consolidated hardship INC – 29 in new sophisticated bottle.
This form addresses few extra hardships created by INC – 29 related to name approval. Unlike, Form INC – 29, Form INC – 32 may be filed with or without prior name approval. This way, names where subscribers may have some doubt in possibility of name approval may apply name in INC – 32. Form INC – 29 may have been amended on similar line but this will harm government claim of single form company incorporation.
However, like Form INC – 29, Form INC – 32 permits only one proposed name instead of normal Form INC – 1. If number of proposed name be increased to at least 3 then requirement for form INC – 1 may significantly be reduced.
In INC – 29, when selected “yes” standard template for memorandum and articles of association was applicable. In INC – 32, this issue has been dealt with sophisticated and linked forms INC – 33 and INC – 34 are welcome step.
In all other details this form is similar to Form INC – 29.
Select the type of proposed company under drop-down provided. Producer Company should be selected only in case company complies with the provisions of Part IXA of the Companies Act, 1956. company defined under chapter XXI of the Companies Act, 2013 are not facilitated under this integrated incorporation form.
Classes of proposed company are Public, Private or One Person Company. In case of Producer Company selected, class can be selected as private only. In case of OPC, company type should be only New company (others).
Categories of proposed company are Company limited by shares, Company limited by guarantee or Unlimited Company. In case of Producer company or One Person Company, only limited by shares can be selected.
The Sub-category applicable to the proposed company are Union government company, State government company, Non-government company, Subsidiary of foreign company, Guarantee and association company. Guarantee and association company can be selected in case of company is limited by guarantee.
The main division of Industrial Activity should be selected based on relevant sub-class and description applicable to the company given in NIC-2004.
Inform whether the article(s) is/are entrenched compared to the standard template of Articles of Association notified under schedule I to the Companies Act, 2013 and also specify their number along with details of entrenchment.
In case of a company having share capital, enter the details of authorized and subscribed share capital break up. Minimum authorized and subscribed share capital required for an OPC or a private company having share capital is Rupees one lakh and in case of a public company is Rupees five lakhs. Also enter the number of shares, total amount of shares and nominal amount per share for each kind of shares. At least one kind of share capital (Equity/ Preference) should be greater than zero in number of shares as well as amount of shares. In case company has shares of multiple nominal amounts per share, then enter multiple nominal values per share separated by comma in the field Nominal amount per share.
Enter the details of number of members in case of a company is not having share capital. Maximum number of members excluding proposed employee(s) should not be greater than 200 in case of a private company. Number of members excluding proposed employee(s) should be greater than two in case of Private company and seven in case of public company.
The company can establish its place of registered office on or from the fifteenth day of its incorporation. In case company establishes its registered office after incorporation, the correspondence address shall be the mailing address for company for receiving and acknowledging all communications and notices as may be addressed to it, till the time company establishes its registered office. Enter the valid email id of the company. This email ID will be used for intimation regarding processing of the eForms, important communication from RoC office shall also be communicated electronically.
Users are advised to select the correct name of office of the Registrar of Companies (ROC) in case more than one ROC is mapped to the state selected. Once application is filed, the same would not allow to be changed until company is incorporated.
This Form permits only one proposed name instead of normal Form INC – 1.
State the significance of the key or coined word used in the proposed name. It should mention why such word cannot be done without in the name. If the proposed name is or has used any word in any vernacular language e.g.: Hindi, Marathi, Tamil etc., then please mention the language.
Select whether the promoters are carrying on any Partnership firm, sole proprietary or unregistered entity in the name as applied for. If yes, select whether such business shall be acquired by the proposed company. Select the Yes or No option. In case Yes is selected then a NOC from the sole proprietor/ partners/other associates/ existing company shall be attached under attachment section.
Select whether the proposed name contains name of any person other than the promoter(s) or their close blood relative(s). If yes is selected above, as the proposed name contains name of any person other than the promoter(s) or their close blood relative(s), then attach NOC from such person.
Select whether the approval is needed from any sector regulator. In case necessary approval is already taken then select the applicable declaration under declaration section of this application form.
In case the proposed name is similar to any existing company, enter the CIN of such existing company and the name of the company will be displayed. In case the proposed name is similar to any foreign holding company, enter the name of the foreign holding company. In case the name is similar to any existing company or to the foreign holding company, then, a certified true copy of No objection certificate by way of board resolution needs to be attached.
If the proposed name is based on a registered trademark or is subject matter of an application pending for registration under the Trade Marks Act, then approval shall be attached of such owner of the registered trademark or the applicant of such trade mark for which application for registration is pending.
In case proposed name is based on a registered trademark or is subject matter of an application pending for registration under the Trade Marks Act, enter your comments indicating approval of the owner of the trademark or the applicant of such application for registration of Trademark.
Enter the number of first subscribers to Memorandum of association (MoA)) and directors of the company. Each category of subscribers (except non-individual subscribers) and directors is divided into two types, one is having DIN and another one is not having DIN. Sum of individual first subscriber(s) cum director(s)’ (both having and not having DIN) + individual first subscriber(s) other than subscriber cum director (both having and not having DIN) + Non-individual first subscriber(s)’ should be:
Equal to or greater than two in case of proposed private company or Seven in case of public company or One in case of OPC, and
Equal to or less than two hundred in case of private company, and
Equal to the ‘Number of members excluding proposed employee(s)’ as entered in field 3(ii)(d) in case company is not having share capital.
Users are advised to fill the correct details as based on the number entered under ‘Not having DIN’ column, the application for allotment of DIN would also be processed and upon approval, DIN would be issued to those directors who all are mentioned as not having DIN. Wrong information may result into duplicity of issued DINs which is subject to punishment under section 159 read with section 155 of the Companies Act, 2013. Total number of directors (including both ‘having’ and ‘not having’ DIN) cannot be more than 20 in number.
Total number of directors (including both ‘having’ and ‘not having’ DIN) should be minimum 1 in case of OPC, 2 in case of private company (other than producer company) or 3 in case of public company or 5 in case of producer private company.
Application for DIN may be made up to 3 directors not having DIN through this form.
Point 6(b) and 6(b) shall be generated based upon the entries in point 6(a).
In case of Director who do not have DIN following details is required:
Enter the personal details, occupational details and educational qualifications. Select a personal identification document available with the director – PAN or Passport Number. In case director is an Indian national, select PAN option. If PAN is entered, click the Verify Details button. The details will be verified from the PAN records. In case the details do not match, error message is displayed. Correct the details. Enter the Designation from the available drop-down values – Director/ Managing director/ Whole time director/ Nominee director. Enter the Category from the available drop-down values – Promoter/ Professional/ Independent/ Nominee. Applicant can select the Independent category only if the proposed company is a public company. Applicant cannot select the Independent category if the Director is a Managing director, nominee director, whole time director. In case of Nominee director enter the name of the company or institution whose nominee the appointee is. Enter the email id of the proposed director. Make sure that the email ID entered is correct. Enter the address details of the proposed director. Select the type of the Proof of identity from the available drop-down values – Voters Identity Card/ Passport/ Driving License/ Aadhar Card. Select the type of Residential Proof from the available drop-down values – Bank / Electricity Bill/ Telephone bill/ Mobile bill. Attach copy of proof of identity and proof of address under attachments section. Enter the number and amount of shares subscribed by the first subscriber. Enter the number of other entities in which director have interest. Also, enter the name, address of such entity along with designation of the director in the entity and his/her percentage of shareholdings and amount.
In another hardship added, Aadhaar number is mandatory for individuals having PAN. In my view this may be violation of Supreme Court directives.
In case of Director, who have DIN, applicant shall need to fill some of these details.
In case of non – individual first subscriber, select the Category of the non-individual first subscriber(s), from the available drop-down values – Company/ Foreign Company/ Company incorporated outside India/ Body Corporate/ Others. Enter the details of the person authorized for acting on behalf of the non-individual first subscriber. Enter the Income tax PAN of the authorized person of the non-individual first subscriber and click the Verify Details button. Based on the Income tax PAN, the details of the authorized person’s name, father’s name and DOB shall be verified with the PAN records. In case the details do not match, error message shall be displayed.
Enter the name of subscriber and nominee in case company is One Person Company. Proposed nominee should not be a nominee in any other One Person Company. Enter the DIN if nominee is having a valid DIN and click the Pre-Fill button. In case DIN not entered, enter the Income-Tax PAN of the nominee director and click the Verify Details button. The details will be verified from the PAN records. In case the details do not match, error message is displayed. Correct the details. Also enter the occupational details, educational qualifications and address details of the nominee director. Select the type proof of identity from the available drop-down values – Voters Identity Card/ Passport/ Driving License/ Aadhar Card Statement. Select the type of Residential Proof from the available drop-down values – Bank / Electricity Bill/ Telephone bill/ Mobile bill. Attach copy of proof of identity and proof of address under attachments section.
The State or Union territory will be pre-filled based on the address of the proposed company.
If you selected to pay stamp duty through MCA21 system or if Stamp duty is not applicable, the details of stamp duty to be paid would get auto-filled based on the state wise stamp rules separately for the e-Form, MoA and AoA.
Additional Information for applying Permanent Account Number (PAN) and Tax Deduction Account Number (TAN):
Details should be entered only if you want to apply for PAN or TAN and application is filed via e-biz service where application process is active.
If you want to apply for PAN or TAN via e-biz service through this eform, select the source of income of the proposed company. Select from drop-down. If the source of income of the proposed company is Income from business/profession, enter the Business/ Profession Code.
Additional Information for Employer registration under Employee State Insurance Corporation (ESIC):
In case you want to apply for employer registration via e-biz service, enter the details for Employer registration. Select the type of unit. Select one from the available options – factory or Establishment.
Select the exact nature of work or business to be carried out by the proposed company out of the option from the drop-down values – Food Beverages and Tobacco/ Textiles/ Leather and Rubber/ Chemical And Chemical Products/ Non Metallic Minerals; Metallic Minerals/ Engineering; Transport/ Paper And Printing/ Miscellaneous Commercial Establishments/ Hotels and Restaurant/ Cinemas And Theatres/ Educational Institutions/ Hospitals, Nursing Homes etc. Select the sub category of work to be carried out by the proposed company. Select one of the option from the drop-down values.
The following attachments are mandatory in all cases:
Memorandum of Association – applicable and mandatory only in case of Section 8 companies or company with foreign subscribers not having DIN
Articles of Association – applicable and mandatory only in case of Section 8 companies or company with foreign subscribers not having DIN
Affidavit and declaration by first subscriber(s) and director(s)
If the address for correspondence is the address of registered office of the company, then following attachments are mandatory:
Proof of office address
Copies of utility bills that are not older than two months.
If the proposed name is based on a registered trademark or is subject matter of an application pending for registration under the Trade Marks Act, then it is mandatory to attach:
Approval of the owner of the trademark or the applicant of such trademark for registration of Trademark
If the promoters are carrying on any Partnership firm, sole proprietary or unregistered entity in the name as applied for , then it is mandatory to attach:
NOC from the sole proprietor/ partners/other associates/ existing company
In case the proposed name contains name of any person other than the promoter(s) or their close blood relative(s), then it is mandatory to attach:
NOC from any other person
If any subscriber to the proposed company is Foreign company and/or company incorporated outside India, then it is mandatory to attach:
Copy of certificate of incorporation of the foreign body corporate and resolution passed Note: It is optional to attach Copy of certificate of incorporation in case the subscriber to the proposed company is Body Corporate.
If any subscriber to the proposed company is a Company itself, then it is mandatory to attach:
Resolution passed by promoter company
In case the name is similar to any existing company, then it is mandatory to attach:
A certified true copy of No objection certificate by way of board resolution
In case, any of the directors has any interest in the proposed company, then it is mandatory to attach:
Interest of first director(s) in entities
In case of an OPC, it is mandatory to attach:
Consent of nominee
Proof of identity and residential address of the nominee
If any one of the subscriber does not have a DIN, it is mandatory to attach:
Proof of identity and residential address of the subscribers
If any one of the director (including subscriber cum director) does not have DIN, then it is mandatory to attach (For 3 directors only):
Proof of identity and residential address of such director
Proof of identity and residential address of such director
Proof of identity and residential address of such director
Any other information can be provided as an optional attachment.
In the Declaration section, enter the applicant name and professional details.
Select a professional (Chartered Accountant/ Company Secretary/ Cost Accountant/ Advocate) from the list of drop down values who has been engaged for giving declaration under section 7(1) (b) and such declaration is attached. Enter valid membership number and certificate number of the practicing professional.
Processing of Form:
The Form will be processed in Non-STP mode.
Fee for Integrated Incorporation Form
Registration fee for Memorandum of Association (MOA) (in case of company having share capital)
|Nominal Share capital||Other than OPCs and Small Companies||OPC and *Small Companies|
|Fixed||For every 10, 000 or part thereof||Fixed||For every 10, 000 or part thereof|
|Up to 1, 00, 000||5,000||NA||2,000||N/A|
|More than 1,00,000 up to 5,00,000||5,000 +||400||2,000||N/A|
|More than 5,00,000 up to 10,00,000||21,000 +||300||2,000||N/A|
|More than 10,00,000 up to 50,00,000||36,000 +||300||2,000 +||200|
|More than 50,00,000 up to 1,00,00,000||1,56,000 +||100||1,56,000 +||100|
|More than 1,00,00,000||2,06,000 +||75||2,06,000 +||75|
If fee payable on the authorized capital is exceeding Rupees two crore and fifty lakhs then the fee applicable shall be limited to two crore and fifty lakhs only.
Registration fee for Memorandum of Association (MOA) (in case of company not having share capital)
|Number of members||Fee applicable|
|Up to 20 members||2,000|
|More than 20 but up to 200 members||5,000|
|More than 200 members (If number of members not stated as unlimited in AOA)||5,000 + Rupees 10 for every member, after the first 200|
The maximum fee payable to the Registrar for registration of a new company not having share capital is fixed at rupees 10,000.
Registration fee for Articles of Association (AOA) (in case of company having share capital)
|Nominal Share Capital||Fee applicable|
|Less than 1,00,000||Rupees 200|
|1,00,000 to 4,99,999||Rupees 300|
|5,00,000 to 24,99,999||Rupees 400|
|25,00,000 to 99,99,999||Rupees 500|
|1,00,00,000 or more||Rupees 600|
Registration fee for Articles of Association (AOA) (in case of company not having share capital)
Rupees 200 per document