ONE PERSON COMPANY (OPC)

[Chinki Singhal]

According to section 2 (62) of the companies Act, 2013, ‘One Person Company (OPC)’ means a company which has only one person as a member.

Person Required

Minimum two people are required for formation of OPC (1 Director/Member & 1 Nominee).

Mandatory Conditions for formation of OPC

• Only a natural person can form OPC.
• There shall be a nominee in an OPC who shall again be a natural person only.
• The OPC shall have to mandatorily convert itself into a private or public Company in case the paid up exceed ₹ 50 Lakhs or the turnover exceeds ₹ 2 Crores.
• The OPC cannot voluntarily convert itself into a public/private Company before the expiry of two years from the date of its incorporation.

Nominee

The subscriber to the memorandum of a One Person Company shall nominate a person, after obtaining prior written consent of such person, who shall, in the event of the subscriber’s death or his incapacity to contract, become the member of that One Person Company.

The name of the person nominated as mentioned above shall be mentioned in the memorandum of One Person Company and [such nomination in Form No.lNC-32 (SPICe) along with consent of such nominee obtained in Form No. lNC-3] and fee as provided in the Companies (Registration offices and fees) Rules, 2014 shall be filed with the Registrar at the time of incorporation of the company along with its memorandum and articles.

Change of Nominee

The person nominated by the subscriber or member of a One Person Company may, withdraw his consent by giving a notice in writing to such sole member and to the One Person Company. The sole member shall nominate another person as nominee within fifteen days of the receipt of the notice of withdrawal and shall send an intimation of such nomination in writing to the Company, along with the written consent of such other person so nominated in Form No.INC.3.The company shall within thirty days of receipt of the notice of withdrawal of consent under sub-rule (3) file with the Registrar, a notice of such withdrawal of consent and the intimation of the name of another person nominated by the sole member in Form No INC.4 along with fee as provided in the Companies (Registration offices and fees) Rules, 2014 and the written consent of such another person so nominated in Form No.INC.3.

Management

• Minimum one director is required.
• First director shall be the person whose name is mentioned in Articles of Association.
• The first director shall hold the office until the holding of general meeting. However, the first director can be re-appointed or another person can appointed on that meeting.
• The OPC may have a maximum number of 15 directors.

Financial Statement of OPC:

The Financial statement of OPC includes balance sheet, profit and loss account and statement of changes in equity.

Financial statement may not include the cash flow statement.

The OPC is required to file the copy of financial statement within 180 days from the closure of the financial year [Section 137(1)].

Meetings

The provision of holding of Annual General Meeting is not applicable to OPC.

The OPC is required to hold minimum two Board meeting during a calendar year and one meeting in each half of the calendar year and gap between two meetings is not more than 90 days *

* Provided that nothing contained in this sub-section and in section 174 (Quorum for meetings of Board) shall apply to One Person Company in which there is only one director on its Board of Directors.(If OPC has only one director then OPC need not to hold Board Meeting (BM)

Notes:-

• The memorandum of a One Person Company (OPC) shall state - the name of the person who, in the event of death of the subscriber, shall become the member of the company.
• the words ‘‘One Person Company’’ shall be mentioned in brackets below the name of such company, wherever its name is printed, affixed or engraved.
• n relation to One Person Company (OPC) and small company, the annual return shall be signed by the company secretary, or where there is no company secretary, by the director of the company.

Matters to be included in Board’s Report for One Person Company and Small Company i.e Abridged Board’s Report. [R8A: Companies (Accounts) Amendment Rules, 2018]

(1) The Board’s Report of One Person Company and Small Company shall be prepared based on the stand alone financial statement of the company, which shall be in abridged form and contain the following:-

• the web address, if any, where annual return referred to in sub-section (3) of section 92 has been placed;
• number of meetings of the Board;
• Directors’ Responsibility Statement as referred to in sub-section (5) of section 134;
• details in respect of frauds reported by auditors under sub-section (12) of section 143 other than those which are reportable to the Central Government;
• explanations or comments by the Board on every qualification, reservation or adverse remark or disclaimer made by the auditor in his report;
• the state of the company’s affairs;
• the financial summary or highlights;
• material changes from the date of closure of the financial year in the nature of business and their effect on the financial position of the company;

the details of directors who were appointed or have resigned during the year;

• the details or significant and material orders passed by the regulators or courts or tribunals impacting the going concern status and company’s operations in future.

Turnover/Capital threshold for conversion of OPC into Private/Public Company

• If Paid-up share capital exceeds ₹ 50,00,000/-
• If Average Annual Turnover exceeds ₹ 2,00,00,000/-

Then, OPC needs to alter its MOA/AOA within 6 months for conversion into private company or public company and give notice to Registrar within 60 days for such conversion.

Note:-

1. The provisions of the below sections shall not apply to a One Person Company (OPC) -

• Section 98 : Power of Tribunal to call meetings of members, etc.
• Section 100 : Calling of extraordinary general meeting
• Section 101 : Notice of meeting
• Section 102 : Statement to be annexed to notice
• Section 103 : Quorum for meetings
• Section 104 : Chairman of meetings
• Section 105 : Proxies
• Section 106 : Restriction on voting rights
• Section 107 : Voting by show of hands
• Section 108 : Voting through electronic means
• Section 109 : Demand for poll
• Section 110 : Postal ballot
• Section 111 : Circulation of members' resolution

2. The ordinary businesses as mentioned under clause (a) of sub-section (2) of section 102 which a company, other than a One Person Company, is required to transact at its annual general meeting, shall be transacted, in case of One Person Company, as provided in sub-section (3).

3. For the purposes of section 114 (Ordinary and Special Resolutions), any business which is required to be transacted at an annual general meeting or other general meeting of a company by means of an ordinary or special resolution, it shall be sufficient if, in case of One Person Company, the resolution is communicated by the member to the company and entered in the minutes-book required to be maintained under section 118 (Minutes of proceedings of general meeting, meeting of Board of Directors and other meeting and resolutions passed by postal ballot) and signed and dated by the member and such date shall be deemed to be the date of the meeting for all the purposes under this Act.

4. Notwithstanding anything in this Act, where there is only one director on the Board of Director of a One Person Company, any business which is required to be transacted at the meeting of the Board of Directors of a company, it shall be sufficient if, in case of such One Person Company, the resolution by such director is entered in the minutes-book required to be maintained under section 118 (Minutes of proceedings of general meeting, meeting of Board of Directors and other meeting and resolutions passed by postal ballot) and signed and dated by such director and such date shall be deemed to be the date of the meeting of the Board of Directors for all the purposes under this Act.

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