On 27th July 2017, Ministry of Corporate Affairs published a notification in Official Gazette of India amending the rules relating to shifting of registered office of a company from jurisdiction of its present registrar of companies to another registrar of companies. The Companies (Incorporation) Second Amendment Rules, 2017 came into effect from date of publication. In present post, we will discuss first aspect of such shifting of registered office – shifting within a state but from one registrar of companies to another registrar of companies.
“(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.INC.23 along with the fee.
(2) The company shall, not less than one month before filing any application with the Regional Director for the change of registered office.-
(a) publish a notice, at least once in a daily newspaper published in English and in the principal language of that district in which the registered office of the company is situated and circulating in that district; and
(b) serve individual notice on each debenture holder, depositor and creditor 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.
[“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.]”
Now, above mentioned Rule 28 has been substituted as under –
(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.INC.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”.
- No requirement of publication of notice in newspaper;
- No requirement of Individual notices to debenture holders, depositors and creditors;
- First Declaration of –
- no default of payment from either any key managerial personnel or by any two directors;
- Consent of its creditors for proposed shifting or has made necessary provision for the payment thereof;
- Second declaration not to seek change in the jurisdiction of the Court; and
- acknowledged copy of intimation to the Chief Secretary of the State.
There are two critical points in this amendment –
- verification of consent of creditors or their payment; and
- acknowledged copy of intimidation not a proof of sending of intimation to Chief Secretary.