What docuemnts should I notarize or apostilled for the purpose of incorporation of a company in India? This is one common question asked by a person with citizenship or resident outside India.
Firstly, we should know, who needs notarized and apostilled documents. The reply depends upon the country where the person presently residing. This is not based on citizenship but the resident status on the day of requirement. We need not go through his ordinary residentship status for tax laws or foreign exchange laws. If British citizen ordinary resident in England is present somewhere in China today, he will notarise and apostilled documents there if the need arises today else he will wait till his return to England, Once he reached England, his signature and notarization will be enough.
Rule 13(5) of the Companies (Incorporation) Rules 2014 gives specific exemption for Indian citizens (resident anywhere in the world) and all person resident in India (irrespective of citizenship status).
For a resident of British Commonwealth countries, No documents required to be apostilled. In their case, notarised documents are enough.
For resident outside British Commonwealth and signatory countries of Hague convention, notarised and apostilled documents are required.
Rule 13(5) of the Companies (Incorporation) Rules 2014 cast the following requirement:
(a) where a subscriber to the memorandum is a foreign national residing outside India but in a country which is a part of (British) Commonwealth, his signature and address on the memorandum and articles of association and proof of identity shall be notarized by a notary public in the country of his residence.
(b) where a subscriber to the memorandum is a foreign national residing outside India (and British Commonwealth) but in a country which is a party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized before the Notary (Public) of the country of his origin and be duly apostilled in accordance with the said Hague Convention.
(c) where a subscriber to the memorandum is a foreign national residing outside India and British Commonwealth and his country or residence is not party to the Hague Apostille Convention, 1961, his signatures and address on the memorandum and articles of association and proof of identity, shall be notarized before the Notary (Public) of such country and the certificate of the Notary (Public) shall be authenticated by a Diplomatic or Consular Officer empowered in this behalf under section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (40 of 1948) or, where there is no such officer by any of the officials mentioned in section 6 of the Commissioners of Oaths Act, 1889 (52 and 53 Vic.C.10), or in any Act amending the same.
(d) However, any foreign national visiting India on Business Visa, he will not required notary and apostilled documents as per clause (a), (b) and (c) above. Any person citizen of India, Overseas Citizen of India, Person of Indian Origin, or resident of Indian origin need not have any visa.
Recently a question posed before me that incorporation was denied because persons are here in India on employment visa and are directors of holding the company of the company to be incorporated but incorporation form was rejected. The simple representation that these people are in employment in India and more importantly presently are resident in India is enough. The business visa requirement is only for a foreign citizen who is not resident in India.
Following documents are to be notarized and apostilled:
- Copy of Passport – pages with name, address and issuing authority details;
- any one Address Proof – Telephone, Electricity or mobile Bill (bank statement is acceptable as proof but not advisable) pages where name and date of the bill are mentioned.
- a declaration called DIR-2 in case the person is going to be a director;
- a declaration of compliance in case the person is going to be a director; and
- Memorandum and articles of association signatory page.
A few documents may additionally be required if the proposed company is under a sector-specific regulator.