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TMI BlogChapter II - The Companies (Incorporation) Rules, 2014.X X X X Extracts X X X X X X X X Extracts X X X X ..... fore such supersession, the Central Government hereby makes the following rules, namely: - 1. Short title and commencement.- (1) These rules may be called the Companies (Incorporation) Rules, 2014. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Definitions.- (1) In these rules, unless the context otherwise requires,- (a) ''Act'' means the Companies Act, 2013 (18 of 2013); (b) ''Annexure'' means the Annexure to these rules; (c) "Form" or "e-Form" means a form in the electronic form as specified under the Act or Rules made there under and notified by the Central Government under the Act; (d) ''Fees'' means fees as specified in the Companies (Registration offices and fees) Rules, 2014; (e) ''Regional Director'' means the person appointed by the Central Government in the Ministry of Corporate Affairs as a Regional Director; (f) ''section'' means the section of the Act; (2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of definitions details) Rules, 2014 shall have the meanings respectively assigned to them in the Act and said rules. 3. One Person Company.- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided that 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. (4) 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. (5) The subscriber or member of a One Person Company may, by intimation in writing to the company, change the name of the person nominated by him at any time for any reason including in case of death or incapacity to contract of nominee and nominate another person after obtaining the prior consent of such ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sub-section (3) of section 122 of the Act to give effect to the conversion and to make necessary changes incidental thereto. (4) The One Person Company shall within period of sixty days from the date of applicability of sub-rule (1), give a notice to the Registrar in Form No.INC.5 informing that it has ceased to be a One Person Company and that it is now required to convert itself into a private company or a public company by virtue of its paid up share capital or average annual turnover, having exceeded the threshold limit laid down in sub-rule (1). Explanation.-For the purposes of this rule,- "relevant period" means the period of immediately preceding three consecutive financial years; (5) If One Person Company or any officer of the One Person Company contravenes the provisions of these rules, One Person Company or any officer of the One Person Company shall be punishable with fine which may extend to ten thousand rupees and with a further fine which may extend to one thousand rupees for every day after the first during which such contravention continues. (6) A One Person company can get itself converted into a Private or Public company after increasing the minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parating the words does not make a name distinguishable from a name that uses the similar, separated or joined words; (f) use of a different tense or number of the same word does not distinguish one name from another; (g) using different phonetic spellings or spelling variations shall not be considered as distinguishing one name from another. Illustration (For example, P.Q. Industries limited is existing then P and Q Industries or Pee Que Industries or P n Q Industries or P & Q Industries shall not be allowed and similarly if a name contains numeric character like 3, resemblance shall be 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 and similarly, if it is different from the name of the existing company only to the extent of adding the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry company in India, then the original name of the holding company as it is may be allowed with the addition of word India or name of any Indian state or city, if otherwise available; (vi) any part of the proposed name includes the words indicative of a separate type of business constitution or legal person or any connotation thereof e.g. co-operative, sehkari, trust, LLP, partnership, society, proprietor, HUF, firm, Inc., PLC, GmbH, SA, PTE, Sdn, AG etc.; Explanation.- For the purposes of this sub-clause, it is hereby clarified that the name including phrase 'Electoral Trust' may be allowed for Registration of companies to be formed under section 8 of the Act, in accordance with the Electoral Trusts Scheme, 2013 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 Central Board of Direct Taxes; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, Haryana Limited, Mysore Limited; (xvi) the name is only a general one, like Cotton Textile Mills Ltd. or Silk Manufacturing Ltd., and not Lakshmi Silk Manufacturing Co. Ltd; (xvii) it is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal: (xviii) the proposed name includes name of any foreign country or any city in a foreign country, the same shall be allowed if the applicant produces any proof of significance of business relations with such foreign country like Memorandum Of Understanding with a company of such country: Provided that 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 and no company shall be incorporated using the name of an enemy country. Explanation.- For the purposes of this clause, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sociation, Federation, Chambers, Confederation, council, Electoral trust and the like etc. Every company incorporated as a "Nidhi" shall have the last word 'Nidhi Limited' as part of its name. (8) The names released on change of name by any company shall remain in data base and shall not be allowed to be taken by any other company including the group company of the company who has changed the name for a period of three years from the date of change subject to specific direction from the competent authority in the course of compromise, arrangement and amalgamation. 9. Reservation of name.- An application for the reservation of a name shall be made in Form No. INC.1 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014. 10. Where the articles contain the provisions for entrenchment, the company shall give notice to the Registrar of such provisions in Form No.INC.2 or Form No.INC.7, as the case may be, along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 at the time of incorporation of the company or in case of existing companies, the same shall be filed in Form No.MGT.14 within thirty days from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate and where the subscriber is a Limited Liability Partnership, it shall be signed by a partner of the Limited Liability Partnership, duly authorized by a resolution approved by all the partners of the Limited Liability Partnership: Provided that in either case, the person so authorized shall not, at the same time, be a subscriber to the memorandum and articles of Association. (5) Where subscriber to the memorandum is a foreign national residing outside India- (a) in a country in any part of the Commonwealth, his signatures and address on the memorandum and articles of association and proof of identity shall be notarized by a Notary (Public) in that part of the Commonwealth. (b) 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 apostillised 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 proo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce residing at present address and address of previous residence address (es) if stay of present address is less than one year) similarly the office/business addresses : (j) Email id of Subscriber; (k) Phone No. of Subscriber; (l) Fax no. of Subscriber (optional) Explanation.- information related to (i) to (l) shall be of the individual subscriber and not of the professional engaged in the incorporation of the company; (m) Proof of Identity: For Indian Nationals: * PAN Card ( mandatory) and any one of the following * Voter's identity card * Passport copy * Driving License copy * Unique Identification Number (UIN) For Foreign nationals and Non Resident Indians * Passport (n) Residential proof such as Bank Statement, Electricity Bill, Telephone / Mobile Bill: Provided that Bank statement Electricity bill, Telephone or Mobile bill shall not be more than two months old; (o) Proof of nationality in case the subscriber is a foreign national. (p) If the subscriber is already a director or promoter of a company(s), the particulars relating to- (i) Name of the company; (ii) Corporate Identity Number; (iii) Whether interested as a dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to in this rule as "the proposed company"), desirous of incorporating a company with limited liability under sub-section (1) of 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.INC.12 along with the fee as provided in the Companies (Registration offices and fees) Rules, 2014 to the Registrar for a license under sub-section (1) of section 8. (2) The memorandum of association of the proposed company shall be in Form No.INC.13. (3) The application under sub-rule (1) shall be accompanied by the following documents, namely:-- (a) the draft memorandum and articles of association of the proposed company; (b) the declaration in Form No.INC.14 by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary in practice, that the draft memorandum and articles of association have been drawn up in conformity with the provisions of section 8 and rules made thereunder 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; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns making the application in Form No.INC.15. (2) The company shall, within a week from the date of making the application to the Registrar, publish a notice at his own expense, and a copy of the notice, as published, shall be sent forthwith to the Registrar and the said notice shall be in Form No. INC.26 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 proposed company is to be situated or is situated, and circulating in that district, and at least once in English language in an English newspaper circulating in that district; and (b) on the websites as may be notified by the Central Government. (4) The Registrar may require the applicant to furnish the approval or concurrence of any appropriate authority, regulatory body, department or Ministry of the Central Government or the State Government(s). (5) 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 Government or the State Government(s), as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in Form No.INC.18 with the Regional Director with the fee along with a certified true copy of the special resolution and a copy of the Notice convening the meeting including the explanatory statement for approval for converting itself into a company of any other kind and the company shall also attach the proof of serving of the notice served to all the authorities mentioned in sub-rule (2) of rule 22. (4) A copy of the application with annexures as filed with the Regional Director shall also be filed with the Registrar. 22. Other conditions to be complied with by companies registered under section 8 seeking conversion into any other kind.- (1) The company shall, within a week from the date of submitting the application to the Regional Director, publish a notice at its own expense, and a copy of the notice, as published, shall be sent forthwith to the Regional Director and the said notice shall be in Form No. INC.19 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 langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has been filed, a statement of the financial position duly certified by chartered accountant made up to a date not preceding thirty days of filing the application shall be attached. (6) The company shall attach with the application a certificate from practicing Chartered Accountant or Company Secretary in practice or Cost Accountant in practice certifying that the conditions laid down in the Act and these rules relating to conversion of a company registered under section 8 into any other kind of company, have been complied with. (7) The Regional Director may require the applicant to furnish the approval or concurrence of any particular authority for grant of his approval for the conversion and he may also obtain the report from the Registrar (8). On receipt of the application, and on being satisfied , the Regional Director shall issue an order approving the conversion of the company into a company of any other kind subject to such terms and conditions as may be imposed in the facts and circumstances of each case including the following conditions, namely;- (a) the company shall give up and shall not claim, with effect from the date its conversion takes effect, any special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaration at the time of commencement of business.- The declaration filed by a director shall be in Form No.INC.21 along with the fee as and the contents of the form shall be verified by a Company Secretary in practice or a Chartered Accountant or a Cost Accountant in practice: Provided that in the case of a company requiring registration from sectoral regulators such as Reserve Bank of India, Securities and Exchange Board of India etc, the approval from such regulator shall be required. 25. Verification of registered office.- (1) The verification of the registered office shall be filed in Form No.INC.22 along with the fee, and (2) There shall be attached to said Form, any of the following documents, namely :- (a) the registered document of the title of the premises of the registered office in the name of the company; or (b) the notarized copy of lease or rent agreement in the name of the company along with a copy of rent paid receipt not older than one month; (c) the authorization from the owner or authorized occupant of the premises along with proof of ownership or occupancy authorization, to use the premises by the company as its registered office; and (d) the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against the company or any prosecution is pending against the company under the Act. 29. Alteration of Memorandum by change of name.- (1) The change of name shall not be allowed to a company which has defaulted in filing its annual returns or financial statements or any document due for filing with the Registrar or which has defaulted in repayment of matured deposits or debentures or interest on deposits or debentures. (2) An application shall be filed in Form No.INC.24 along with the fee for change in the name of the company and a new certificate of incorporation in Form No.INC.25 shall be issued to the company consequent upon change of name. 30. Shifting of registered office from one State or Union territory to another State.- (1) An application under sub-section (4) of section 13, for the purpose of seeking approval for alteration of memorandum with regard to the change of place of the registered office from one State Government or Union territory to another, shall be filed with the Central Government in Form No. INC.23 along with the fee and shall be accompanied by the following documents, namely:- (a) a copy of the memorandum and articles of association; (b) a cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd take extracts from the same on payment of a sum not exceeding ten rupees per page to the company. (5) There shall also be attached to the application a copy of the acknowledgment 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. (6) The company shall at least fourteen days before the date of hearing- (a) 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; (b) serve, by registered post with acknowledgement due, individual notice(s), to the effect set out in clause (a) on each debenture-holder and creditor of the company; and (c) serve, by registered post with acknowledgement due, a notice together with the copy of the application to the Registrar and to the Securities and Exchange Board of India, in the case of listed companies and to the regulatory body, if the company is regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the justification for the alteration or change in the objects; (f) the amount proposed to be utilised for the new objects; (g) the estimated financial impact of the proposed alteration on the earnings and cash flow of the company; (h) the other relevant information which is necessary for the members to take an informed decision on the proposed resolution; (i) the place from where any interested person may obtain a copy of the notice of resolution to be passed. (2) The advertisement giving details of each resolution to be passed for change in objects which shall be published simultaneously with the dispatch of postal ballot notices to shareholders. (3) The notice shall also be placed on the website of the company, if any. 33. Alteration of articles.- (1) For effecting the conversion of a private company into a public company or vice versa, the application shall be filed in Form No.INC.27 with fee. (2) A copy of order of the competent authority approving the alteration, shall be filed with the Registrar in Form No. INC.27 with fee together with the printed copy of the altered articles within fifteen days of the receipt of the order from the Central Government. Explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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