Category Archives: Companies Act 2013

Post written on the provisions of the (Indian) Companies Act, 2013 and matter incidental thereto

Notarised- Apostilled Documents


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:

  1. Copy of Passport – pages with name, address and issuing authority details;
  2. 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.
  3. a declaration called DIR-2 in case the person is going to be a director;
  4. a declaration of compliance in case the person is going to be a director; and
  5. Memorandum and articles of association signatory page.

A few documents may additionally be required if the proposed company is under a sector-specific regulator.

COMPLIANCE BY INDEPENDENT DIRECTORS


In the last post PROFICIENT INDEPENDENT DIRECTORS, we discussed the introduction of “proficiency self – assessment test” by the Ministry of Corporate Affairs. The Companies (Appointment and Qualification of Directors) Fifth Amendment Rules, 2019 gives teeth to the Companies (Creation and Maintenance of database of Independent Directors) Rules, 2019. We, in this post, will discuss the Companies (Appointment and Qualification of Directors) Fifth Amendment Rules, 2019. More power is given by the Companies (Accounts) Amendment Rules, 2019.

Continue reading

PROFICIENT INDEPENDENT DIRECTORS


What else may be the name of the youngest profession on the block of Corporate India? The new test is here to hit test-taking taste bud of Indian professionals. Rule 4(a) of the Companies (Creation and Maintenance of database of Independent Directors) Rules, 2019 introduces silently the “proficiency self – assessment test”. Ministry of Corporate Affairs by notification G.S.R. 805(E) dated 22nd October 2019 introduced these rules.

Continue reading

FOLIO NUMBER


Folio number is one of the number a common shareholder of a company concerns. In this era of dematerialisation folio may not of much concern for a seasoned investor but it certainly have value for shareholders and entrepreneur having medium small and micro sector companies. Every shareholder found this number at his share certificate and read it distinctive numbers of shares. A folio number once allocated never changes until a person remains a shareholder in the company.

The folio number also puzzle young companies secretaries how to allocate a folio number to a shareholder. This post briefly touches the subject.

Continue reading

Filing Web Form IEPF-5


We earlier here discussed law related to refund and reclaim of amount and shares from the Investor Education and Protection Fund under the amended Rules. For this purpose, the Government launched New Form IEPF-5 in its web version on 20th September 2019. In this post, we will discuss the practical aspect of filing this form.

Continue reading

Legal Claims on Work-related Injuries


Guest Post by: Eric Tress Eric@TheRosenfeldFoundation.com

Getting injured at work is never a welcome occurrence. It may cause you to miss work for days or even weeks as you recuperate. If the injury is severe, it could put you out of work altogether. 

As if the hospital bills and possible loss of wages are not enough, work-related injuries can also trigger a lot of emotional and mental distress. There is a small consolation in knowing that workers compensation exists to alleviate such stress.

Continue reading

NODAL OFFICER


Originally, neither the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016 nor the Companies Act, 2013 have any mention of Nodal Officer except Form IEPF – 5. The Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Second Amendment Rules, 2017 first time bring this term in main rules. Now the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Second Amendment Rules, 2019 strengthen and formalized the office of Nodal Officer. New Provision came into effect with effect from 20th August 2019.

Continue reading