17 Apr 2018

New Procedure for Incorporating Companies

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Incorporation of Companies

INCORPORATION OF A COMPANY THROUGH ‘SPICe’ FORM

Private Limited Company is the most popular type of corporate legal entity in India. Registrations of Private limited companies is governed by the Ministry of Corporate Affairs, Companies Act, 2013 and the Companies Incorporation Rules, 2014. To register a private limited company, a minimum of two shareholders and two directors are required. A natural person can be both a director and shareholder, while a corporate legal entity can only be a shareholder. Further, unlike other entities, foreign nationals, foreign corporate entities or NRIs are allowed to be Directors and/or Shareholders of a Company with Foreign Direct Investment. A private limited company is the preferred choice of entity for foreign promoters. In this article, we describe the new Procedure for Incorporating Companies.

Regulations –

Section 7 of the Companies Act, 2013 (‘Act’ for short) provides the procedure for incorporating companies. For the purposes of incorporation of a company the Central Government framed ‘the Companies (Incorporation) Rules, 2014 which came into effect from 01.04.2014. The following are the rules for incorporation of a company-

Rule 9 to 11 – Reservation of name;
Rule 12 – Application for incorporation of companies
Rule 13 – Signing of memorandum and articles;
Rule 14 – Declaration by professionals;
Rule 15 – Affidavit from subscribers and first directors;
Rule 17 – Particulars of first directors of the company and their consent to act as such;
Rule 18 – Certificate of incorporation.

The Rule prescribes various forms that are to be used for incorporating companies.

Rule 38 was inserted by the Companies (Incorporation) (Fourth Amendment) Rules, 2016 with effect from 02.10.2016. Rule 38 provides for the simplified proforma for incorporating company electronically (SPICe). The said Rule prescribes Form No. INC – 32 along with e-memorandum of Association in Form INC – 33 and e-Articles of Association in Form No. INC – 34 The said Rule was substituted by the Companies (Incorporation) Fifth Amendment Rules, 2016. Vide Notification dated 20.01.2018 the second proviso to Rule 38(1) and Rule 38(2) were inserted Rule 9 and Rule 12 were also amended. Incorporation under SPICe method is very easy.

Reservation of name – Reserve Unique Name (RUN)

Rule 9 provides that an application for reservation of name shall be made through the web service available at www.mca.gov.in by using RUN (Reserve Unique Name) along with fee as provided in the Companies (Registration offices and fees) Rules, 2014, which may either be approved or rejected as the case may be, by the Registrar, Central Registration Centre. Now the said form has been amended. Initially only one name could be applied for. Now two names may be selected for reservation of name. In case both the names get rejected, a resubmission option is also made available where two names can be applied for once more without paying additional fees.

Incorporation Procedure

Form INC – 32 is to be used for incorporation of a company A name which has been approved using RUN service can be entered in SPICe against the field SRN of RUN Based on the SRN entered, the Entity type, proposed name and any other relevant fields will be auto-filled by the system Please use the same user login ID which was used for reserving the name for submitting and uploading SPICe, INC-12 and INC-24 forms. It is not required to be filed with SPICe (INC-32) if a company is registered with the same address as the address for correspondence (in INC-32). In case the registered address is different, INC-22 is required to be filed within 30 days of its incorporation, for intimating the registered office address. The users may obtain approved e-MOA (INC-33) and e- AOA (INC-34) through certified copies facility available on MCA. It is mandatory to use eMoA (INC-33) and eAoA (INC-34) in case of the following:
– individual subscribers are Indian nationals
– individual subscribers who are foreign nationals in case they valid DIN and DSC and also submit a proof of a valid business visa
– non-individual subscribers based in India

SPICe forms – Important points –

  • In respect of non-individual first subscribers who are based outside India, pdf attachments of apostillised MOA and AOA shall be attached with SPICe (INC-32);
  • Section 8 companies are mandatorily required to file MOA and AOA as pdf attachments to SPICe (INC-32) and not as linked forms.
  • Part I companies are mandatorily required to file MOA and AOA as pdf attachments to SPICe (INC-32) along with form URC-1 which is to be filed as a linked form.
  • SPICe is now the only form for incorporation of all types of companies Hence, SPICe shall be used for incorporation of producer companies or Part I companies.
  • SPICe AoA (INC-34) has facility for adding, modifying, and deleting Articles
  • SPICe form shall be filed with MoA and AOA as attachments in case of more than seven subscribers
  • DSC is mandatory for all subscribers and witnesses in eMoA (INC-33) and eAoA (INC-34). eMoA and eAoA shall be used only where the maximum number of subscribers do not exceed 7.
  • In case the number of subscribers are more than 7, MoA and AoA shall be attached manually to SPICe and DSC is not mandatory in such cases.
  • Subscribers’ photo is not required
  • Two resubmissions are permitted in e-form
  • OPC can be incorporated using SPICe form
  • NIDHI companies can be incorporated using SPICe form
  • LLP cannot be incorporated using SPICe form
  • SPICe eMoA and eAoA have to be uploaded as ‘Linked Forms’ to SPICe (INC-32).
  • eMoA and eAOA would be witnessed after all subscribers have signed as is happening presently
  • Refund is applicable if SPICe form is rejected
  • Maximum uploads size of SPICe form is 6MB.
  • It is mandatory to apply for PAN and TAN for the proposed company along with SPICe form
  • For PAN-Rs.110 and TAN-Rs.65 becomes payable.
  • AO codes for PAN and TAN are different and can be found at links below-

Here is where you can find the AO codes for PAN and TAN –

AO Codes for PAN –

https://www.tin-nsdl.com/services/pan/pan-aocode.html

AO Codes for TAN –

https://www.tin-nsdl.com/services/tan/tan-ao-code.html

Government Fees and Stamp Duty

A consolidated challan gets generated at the time of filing SPICe(INC-32) which shall contain applicable fee towards

(i) Form Fee
(ii) MoA
(iii) AoA
(iv) PAN
(v) TAN

  • Stamp duty is payable for SPICe/MOA/AOA as per the Stamp Duty Act.
  • Upto ₹ 10,00,000 (authorized capital) no fee is payable
  • The maximum fee payable to the Registrar for registration of a new company not having share capital is fixed at rupees 10,000
  • If SPICe form is filed containing details of a DIN applicant who has been identified as a potential duplicate following message shall be displayed along with ‘Yes’ and ‘No’ options – “The system has identified applicant(s) as potential duplicate because the contents are matching with an already filed DIN application form. Please ensure that no DIN has already been allotted to the applicant. If you still wish to continue say ‘Yes’. Please note that DIN application shall be approved only after due verification by MCA “. If the user selects ‘No’, then the filing of eForm shall not be allowed.
  • On approval of SPICe forms, the Certificate of Incorporation (CoI) is issued with PAN as allotted by the Income Tax Department. An electronic mail with Certificate of Incorporation (CoI) as an attachment along with PAN and TAN is also sent to the user Further PAN card shall be issued by the Income Tax Department. However, the new procedure that is will allow the PAN and the TAN to be mentioned in the certificate of Incorporation itself.
  • After receipt of Certificate of Incorporation (with PAN indicated therein as allotted by the Income Tax Department) in case of non-receipt of PAN card, stakeholders shall check the status at www.TIN-NSDL.com

 

In case of technical problems i.e., form uploads, pre-scrutiny errors, DSC related, payment related queries, please raise a ticket on www.mca.gov.in/myservices and await a resolution. One may also call up Corporate Seva Kendra at 0124-4832500 after 48 hours if ticket is not resolved. In case of resubmission / rejection remarks, please contact 0124-4832500 and select option 1 for CRC. For escalation one may send a mail to crc.escalation@mca.gov.in .

 

 
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