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TMI BlogChapter II - Draft Rules under Companies Act, 2013X X X X Extracts X X X X X X X X Extracts X X X X ..... he eligibility criteria specified in rule 2.1(2) within a period of one hundred and eighty days. Nomination by the subscriber or member of One Person Company. 2.2 For the purposes of first proviso to sub-section (1) of section 3, (1) The subscriber to the memorandum of a One Person Company shall nominate a person, after obtaining his/her prior written consent, who shall, in the event of the subscriber's death or his incapacity to contract, become the member of that One Person Company. (2) Name of the person nominated under sub-rule (1) shall be mentioned in the memorandum of One Person Company and the nomination in Form No. 2.1 along with consent of such nominee obtained in Form No. 2.2 and fee as provided in Annexure 'B shall be filed with the Registrar at the time of incorporation of the company along with its memorandum and articles. (3) In pursuance of second proviso of sub-section (1) of section 3, the person nominated by the subscriber or member of One Person Company may, withdraw his consent by giving a notice in writing to such sole member and to the One Person Company. Provided that the sole member shall nominate another person as nominee within 15 days on the receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers conferred by sub-section (1) of section 469, (1) Where the paid up share capital of a One Person Company exceeds fifty lakh rupees or its average annual turnover during the relevant period exceeds two crore rupees, it shall cease to be entitled to continue as a One Person Company. (2) Such One Person Company shall be required to convert itself, within six months of the date on which its paid up share capital is increased beyond fifty lakh rupees or the last day of the relevant period during which its average annual turnover exceeds two crore rupees or the close of the financial year during which its balance sheet total exceeds one crore rupees, as the case may be, into either a private company with minimum of two members and two directors or a public company with minimum of seven members and three directors in accordance with the provisions of section 18 of the Act. (3) It shall alter its memorandum and articles by passing an ordinary or special resolution in accordance with sub-section (3) of section 122 of the Act to give effect to the conversion and to make necessary changes incidental thereto. (4) Within thirty days of the sub-rule (1) becoming applicable, the One Perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... checked with 'Three' also; (h) misspelled words, whether intentionally misspelled or not, do not conflict with the similar, properly spelled words; (i) the addition of an internet related designation, such as .com, .net, .edu, .gov, .org, .in does not make a name distinguishable from another, even where (.) is written as 'dot'; (j) the addition of words like New, Modern, Nav, Shri, Sri, Shree, Sree, Om, Jai, Sai, The, etc. does not make a name distinguishable from an existing name. Similarly, if it is different from the name of the existing company only to the extent of adding the name of the place, the same shall not be allowed; Such names may be allowed only if no objection from the existing company by way of Board resolution is submitted; (k) different combination of the same words does not make a name distinguishable from an existing name, e.g., if there is a company in existence by the name of "Builders and Contractors Limited", the name "Contractors and Builders Limited" will not be allowed unless it is change of name of existing company; (l) if the proposed name is the Hindi or English translation or transliteration of the name of an existing company or limited liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Registration of companies to be formed under section 25 of the Companies Act, 1956 under the Electoral Trusts Scheme 2013 as notified by the Central Board of Direct Taxes (CBDT); provided that name application is accompanied with an affidavit to the effect that the name to be obtained shall be only for the purpose of registration of companies under Electoral Trust Scheme as notified by the CBDT. (vii) the proposed name contains the words 'British India'; (viii) the proposed name implies association or connection with embassy or consulate or a foreign government; (ix) the proposed name includes or implies association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or are occupying important positions in Government; (x) the proposed name is vague or an abbreviated name such as 'ABC limited' or '23K limited' or 'DJMO' Ltd: abbreviated name based on the name of the promoters will not be allowed. For example:- BMCD Limited representing first alphabet of the name of the promoter like Bharat, Mahesh, Chandan and David. Provided that existing company may use its abbreviated name as part of the name for form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like MOU with a company of such country .Provided further the name combining the name of a foreign country with the use of India like India Japan or Japan India shall be allowed if, there is a government to government participation or patronage. No company shall be incorporated using the name of an enemy country. (Enemy country means so declared by the Central Government from time to time). (3) If any company has changed its activities which are not reflected in its name, it shall change its name in line with its activities within a period of six months from the change of activities after complying with all the provisions as applicable to change of name. (4) In case the key word used in the name proposed is the name of a person other than the name(s) of the promoters or their close blood relatives, No objection from such other (s) shall be attached with the application for name. In case the name includes the name of relatives, the proof of relation shall be attached. It shall be mandatory to furnish the significance and proof thereof fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the fee as provided in Annexure 'B'. 2.7. For the purposes of sub-section (5) of section 5, where the articles contain the provisions for entrenchment, the company shall give notice to the Registrar of such provisions in Form No. 2.8 along with the fee as provided in Annexure 'B' within thirty days from the date of formation of the company or amendment of the articles, as the case may be. 2.8. For the purposes of sub-section (6) of section 5, the model articles as prescribed in Table F, G, H, I and J of Schedule I may be adopted by a company as may be applicable to the case of the company, either in totality or otherwise. Application for incorporation of companies. 2.9. For the purposes of sub-section (1) of section 7, an application shall be filed, with the Registrar within whose jurisdiction the registered office of the company is proposed to be situated, in Form No. 2.9 along with the fee as provided in Annexure 'B' for registration of a company: Signing of memorandum and articles. 2.10. For the purpose of clause (a) of sub-section (1) of section 7, the Memorandum and Articles of Association of the company shall be signed in the following manner:- (1) Memorandum and art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lised in accordance with the said Hague Convention. (c) in a country outside the Commonwealth and which is not 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 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) If, a foreign national visited in India and intended to incorporate a company, in such case the incorporation shall be allowed if, he/she is having a valid Business Visa. Explanation :-In case of Person is of Indian Origin or Overseas Citizen of India, requirement of business Visa will not be applicable. Declaration by professionals. 2.11. For the purposes of clause (b) of sub-section (1) of section 7, the declaration by an advocate, a Chartered Accountant, Cost accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or promoter of a company(s), the following details: (i) Name of the company (ii) CIN (iii) Whether interested as a director or promoter (2) Where the subscriber to the memorandum is a body corporate then the following particulars shall be filed with the Registrar:- (a) CIN of the Company / Registration No of the body corporate, if any (b) GLN, if any (c) Name of the body corporate (d) Registered office address/ principal place of business (e) E-mail Id (f) If the body corporate is a company, certified true copy of the board resolution specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subscribed by the body corporate, and the name, address and designation of the person authorized to subscribe to the Memorandum. If the body corporate is a limited liability partnership, certified true copy of the resolution agreed to by all the partners specifying inter alia the authorization to subscribe to the memorandum of association of the proposed company and to make investment in the proposed company, the number of shares proposed to be subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reunder and that all the requirements of the Act and the rules made thereunder relating to registration of the company under section 8 and matters incidental or supplemental thereto have been complied with; (c) an estimate of the annual income and expenditure of the proposed company for the next three years, specifying the sources of the income and the expenditure plans; (d) an estimate of the future annual income and expenditure of the company for next three years, specifying the sources of the income and the objects of the expenditure; (e) a declaration by each of the persons making the application in Form No. 2.16; (f) a copy of the board resolution / members' resolution. (4) A limited company registered under this Act or under any previous company law, with any of the objects specified in clause (a) of sub-section (1) of section 8 and the restrictions and prohibitions as mentioned respectively in clause (b) and (c) of that sub-section, and which is desirous of being registered under section 8, without the addition to its name of the word "Limited" or as the case may be, the words "Private Limited", shall make an application in Form No. 2.14 (Part B) along with the fee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire the applicant to furnish the approval or concurrence of any appropriate authority, regulatory body, department or Ministry of the Central or State Government(s). (3) The Registrar shall, after considering the objections, if any, received by it within thirty days from the date of publication of notice, and after consulting any authority, regulatory body, Department or Ministry of the Central or State Government(s), as it may, in its discretion, decide whether the license should or should not be granted. (4) The licence shall be in Form No. 2.19 or Form No. 2.20, as the case may be, and the Registrar shall have power to include in the licence such other conditions as may be deemed necessary by him. The Registrar may direct the company to insert in its memorandum, or in its articles, or partly in one and partly in the other, such conditions of the license as may be specified by the Registrar in this behalf. Conditions for conversion of a company registered under Section 8 into a company of any other kind. 2.18. (1) For the purposes of sub-clause(ii) of sub-section (4) of section 8, a company registered under section 8 which intends to convert itself into a company of any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed, shall be sent forthwith to the Regional Director. The said notice shall be in Form No. 2.22 and shall be published: (a) at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situated, and having a wide circulation in that district, and at least once in English language in an English newspaper having a wide circulation in that district; (b) on the website of the company, if any, and as may further be notified/directed by the Central Government. (2) The company shall send a copy of the notice, simultaneously with its publication, together with a copy of the application and all attachments by registered post or hand delivery, to the Chief Commissioner of Income Tax having jurisdiction over the company, Income Tax Officer who has jurisdiction over the company, the Charity Commissioner, the Chief Secretary of the State in which the registered office of the company is situated, any organisation or Department of the Central Government or State Government or other authority under whose jurisdiction the company has been operating. If any of these authorities wish to make any representation to Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cost or at a concessional cost from any government or authority, it may be required to pay the difference between the cost at which it acquired such property and the market price of such property at the time of conversion either to the government or to the authority that provided the immovable property; c) Any accumulated profit or unutilized income of the company brought forward from previous years shall be first utilized to settle all outstanding statutory dues, amounts due to lenders claims of creditors, suppliers, service providers and others including employees and lastly any loans advanced by the promoters or members or any other amounts due to them and the balance, if any, shall be transferred to the Investor Education and Protection Fund. within thirty days of receiving the approval for conversion; Before imposing the conditions or rejecting the application, the company shall be given a reasonable opportunity of being heard by the Regional Director (9) On receipt of the approval of the Regional Director, (i) The company shall convene a general meeting of its members to pass a special resolution for amending its memorandum of association and articles of association as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as its registered office. AND (d) Document of connection of any utility service like telephone, gas, electricity, etc. depicting the address of the premises in the name of the owner/document as the case may be which is not older than 2 months. (3) There shall be attached to Form No. 2.25 the list of all other companies with their CIN, having the same unit/tenement/premises as their registered office address. Publication of name by company. 2.23. For the purposes of clause (d) of sub-section (3) of section 12, the Central Government may as and when required, notify the other documents on which the name of the company shall be printed. Notice and verification of change of situation of the registered office. 2.24. For the purposes of sub-section (4) of section 12, notice of change of the situation of the registered office and verification thereof shall be filed in Form No. 2.25 along with the fee as provided in Annexure 'B' and there shall be attached to Form No. 2.25, and the similar documents and manner of verification as are prescribed for verification of Registered office on incorporation as above in terms of section12 (2) Shifting of registered office within the same Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of seeking approval for alteration of memorandum with regard to the change of place of the registered office from one State to another, shall be filed with the Central Government in Form No. 2.28 along with the fee as provided in Annexure 'C' and shall be accompanied by the following documents: (a) Copy of the memorandum and articles of association. (b) Copy of the notice convening the general meeting along with relevant Explanatory Statement. (c) Copy of the special resolution sanctioning the alteration by the members of the company. (d) 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 or against the resolution. (e) Affidavit verifying the application. (f) List of creditors and debenture holders entitled to object to the application. (g) Affidavit verifying the list of creditors. (h) Bank draft evidencing payment of application fee. (i) Copy of Board Resolution or the executed Vakalatnama, as the case may be. (2) There shall be attached to the application, a list of creditors and debenture holders, drawn up to the latest practicable date preceding the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to the Securities and Exchange Board, in the case of listed companies and to the regulatory body, if the company is regulated under any special act. (7) 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. (8) 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. (9) 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. (10) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th fee as provided in Annexure 'B' together with the printed copy of the altered articles within fifteen days of the receipt of the order from the Tribunal. Copies of memorandum and articles, etc. to be given to members on request being made by them. 2.31. For the purposes of sub-section (1) of section 17, a company shall on payment of fee as provided in Annexure 'B', send a copy of each of the following documents to a member within seven days of the request being made by him- (1) the memorandum; (2) the articles, if any; (3) every agreement and every resolution referred to in sub-section (1) of section 117, if and so far as they have not been embodied in the memorandum and articles. Service of documents. 2.32. (1) For the purposes of sub-section (1) of section 20, a document may be served on a company or an officer thereof through electronic transmission. (2) For the purposes of sub-rule (1) of this rule, "electronic transmission" means a communication- (a) delivered by - (i) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, which the company or the officer has provided from time to time for sen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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