Registered Office
Section 12 of the Companies Act, 2013 (‘Act’ for short) deals with the registered office of a company. Section 12(1) of the Act provides that a company shall, on and from the 15th day of its incorporation and also at all times after incorporation, have a registered office of the company for the purpose of receiving and acknowledging all communications and notices as may be addressed to the company.
Verification of the Registered Office
Section 12(2) of the Act provides that the company shall furnish to the Registrar verification of its registered office within a period of 30 days. Rule 25 of Companies (Incorporation) Rules, 2014 (‘Rules’ for short) prescribes the method for verification of registered office. The said Rule provides that the verification of the registered office shall be filed in Form No. INC 22. The said form is meant to give notice of situation or change of situation of a registered office. The following documents are to be attached:
- Proof of Registered Office address (Conveyance/Lease Deed/Rent Agreement along with the rent receipts) etc.,;
- Copies of the utility bills as mentioned above (not older than two months);
- A proof that company is permitted to use the address as the registered office of the company if the same is owned by another entity/person (not taken on lease by company);
- Copy of the order of competent authority;
- List of all the companies (specifying their CIN) having the same registered office address, if any;
- Optional attachment, if any.
The details filled in and the documents attached are to be verified and certify by practicing professional (Chartered Accountant in practice or Company Secretary in practice or Cost Accountant in practice) certifying that all the records have been properly prepared, signed by the required officers of the company and maintained as per the provisions of Act and were to be found in order; all the required attachments have been completely and legibly attached to this form and to declare that the professional has personally registered office given in the form at the address mentioned and verified that the registered office of the company is functioning for the business purposes of the company.
Publication of name by company
Section 12(3) provides that every company shall-
- Paint or affix its name and address of its registered office and keep the same painted or affixed on the outside of every office or place in which its business is carried on, in a conspicuous position, in legible letters, and if the characters employed therefore are not those of the language or of one of the languages in general use in that locality also in the characters of that language or of one of those languages;
- Have its name engraved in legible characters on its seal;
- Get its name, address of its registered office and the Corporate Identity Number along with telephone number, fax number, if any, e-mail and website addresses, if any, printed in all its business letters and in all notices and other official publications; and
- Have its name printed on hundies, promissory notes, bills of exchange and such other documents as may be prescribed.
Rule 26 provides that the Central Government may as and when required, notify the other documents on which the name of the company shall be printed.
Change of registered office
Section 12(5) of the Act provides that except on the authority of a special resolution passed by a company, the registered office of the company shall not be changed-
- in the case of an existing company, outside the local limits of any city, town or village where such office is situated at the commencement of this Act or where it may be situated by virtue of a special resolution passed by the company; and
- in the case of any other company, outside the local limits of any city, town or village where such office is first situated or where it may be situated later by virtue of a special resolution passed by the company.
Section 14(4) provides that notice of every change of the situation of the registered office, verified in the prescribed manner (as discussed above) after the date of incorporation of the company, shall be given to the Registrar within 15 days of the change who shall record the same.
The change of registered office, other than the above, may be of two types-
- Shifting of registered office within the state;
- Shifting of registered office from one State or Union territory to another state.
Shifting of registered office within the State
The proviso to Section 12(5) provides that no company shall change the place of its registered office from the jurisdiction of one Registrar to the jurisdiction of another Registrar within the same State unless such change is confirmed by the Regional Director on an application made in this behalf by the company in the prescribed manner.
Rule 28 gives the procedure for shifting the registered office within the state as discussed below:
- The company shall, not less than one month before filing any application with the Regional Director for the change of registered office-
- 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
- service 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 21 days of the date of publication of the notice;
- in case no objection is received by the Regional Director within 21 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;
- 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.
- The following documents are to be attached with the application-
- An application for this purpose shall be filed by the company with the Regional Director in Form No. INC-23 along with the fee; Copy of memorandum of Association and Articles of Association;
- Copy of notice of general meeting along with relevant explanatory statement;
- Copy of special resolution sanctioning alteration;
- Copy of the minutes of the general meeting authorizing such alteration;
- List of creditors and debenture holders;
- Affidavit from directors in terms of rules;
- Affidavit verifying the application;
- Affidavit by the Company Secretary of the company and the directors in regards to the correctness of list of creditors and affairs of the company;
- Affidavit of directors about no retrenchment of employees;
- Details of prosecution/inspection/inquiry/investigation filed against the company and its officers-in-default;
- Copy of newspaper advertisement for notice of shifting the registered office;
- Affidavit verifying the list of creditors;
- Proof of service of the application to the Registrar, Chief Secretary of the State, SEBI or any other regulatory authority (if applicable);
- Copy of objections received, if any;
- Optional attachments, if any.
Shifting of registered office from one State or Union territory to another State
For the shifting of registered office from one state or union territory to another state could be done only with the approval of the Central Government on an application. The procedure for shifting of registered office from one State or Union territory to another state is as follows:
- An application shall be filed with the Central Government in Form No. INC-23 along with the fee and the following documents-
- A copy of the memorandum and articles of association;
- A copy of the notice convening the general meeting along with relevant explanatory statement;
- A copy of the special resolution sanctioning the alteration by the members of the company;
- A copy of the minutes of the general meeting at which the resolution authorizing such alteration was passed, giving details of the number of votes cast in favor of against the resolution;
- An affidavit verifying the application;
- The list of creditors and debenture holders entitled to object to the application;
- An affidavit verifying the list of creditors;
- The document relating to payment of application fee;
- A copy of board resolution or power of attorney or the executed Vakalatnama, as the case may be;
- A copy of the acknowledgement of service of a copy of the application with complete annexures to the Registrar and Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.
- The company shall at least 14 days before the date of hearing-
- Advertise the application in the Form No. INC-26 in a vernacular newspaper in the principal vernacular language in the district in which the registered office of the company is situated, and at least once in English language in an English newspaper circulating in that district.
- Serve, by registered post with acknowledgement due, individual notice(s) to the effect set out above on each debenture holder and creditor of the company; and
- Serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the SEBI in the case of listed companies and to the regulatory body, if the company is regulated under any special Act or law for the time being in force;
- Where any objection of any person whose interest is likely to be affected by the proposed application has been received by the applicant, it shall serve a copy thereof to the Central Government on or before the date of hearing;
- Where no objection has been received from any of the parties, who have been duly served, the application may be put up for orders without hearing;
- Before confirming the alteration, the Central Government shall ensure that, with respect to every creditor and debenture holder who, in the opinion of the Central Government, is entitled to object to the alteration, and who signifies his objection in the manner directed by the Central Government, either his consent to the alteration has been obtained or his debt or claim has been discharged or has determined or has been secured to the satisfaction of the Central Government;
- The Central Government may make an order confirming the alteration on such terms and conditions, if any, as it thinks fit, and may make such order as to costs as it thinks proper;
- The shifting of the 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.
The certified copy of the order of the Central Government, approving the alteration of the memorandum for transfer of registered office of the company from one State to another shall be filed in Form No. INC-28 along with the fee as with the Registrar of the State within 30 days from the date of receipt of copy of the order.
Penalty
Section 12(8) provides that if any default is made in complying with the requirements of this section, the company and every officer who is in default shall be liable to a penalty of ₹ 1,000/- for every day during which the default continues but not exceeding ₹ 1,00,000/-
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