Short Summary:
Ministry of Corporate Affairs ('MCA') has come with new rules for Incorporation of Company under Companies Act, 2013 with simplified procedure (SPICe). Earlier if a Person wants to incorporate Company then it has to apply for the DIN, Approval of the Name Availability, and Separate form for first Director, Registered office address, PAN, TAN etc. But this form is a single window for Incorporation of Company. While going through incorporation Professionals/Corporates are facing some technical/ interpretational issues. Through this article is an endeavor to tackle with such issues.
FAQ -
A. How to apply for Incorporation of Company with Foreign Subscribers, without violating the Rule 13 of the Companies (Incorporation) Rules, 2014?
Solution: Rule 13 provide manner of signing of MOA & AOA. Like: in case of foreign subscribers MOA & AOA should be notary in the country of origin, apostilled, authenticated by a Diplomatic or Consular Officer empowered, which is not possible in case of e-MOA and e-AOA. Because an electronic form can't be notarized etc.
Therefore, in case of incorporation of Company with Foreign Subscribers Company required attaching Scan copy of MOA & AOA instead of electronic.
B. If the Foreign Subscribers are Present in India vide Business Visa, whether he need to file e-MOA/ AOA or he can file the MOA & AOA as attachment?
Solution: As given in Question A that in case of foreign subscriber to comply with Rule 13 there is mandatory to attached scan copy of MOA / AOA for incorporation of Company instead of e-MOA/AOA.
But it is also mentioned in Rule 13 that if the foreign subscriber is present in India on valid Business Visa then he can sign the MOA/AOA in the same manner as required to get sign from the Indian Subscribers. (in short he will treat as Indian subscriber).
Therefore, in case of incorporation of Company with Foreign Subscribers present in India on valid Business Visa, It is mandatory to file e-MOA & AOA with his/her DSC. It is mandatory to file e-MOA/ AOA instead of scan copy.
C. If Name of a Company is already approved by INC-1 then whether company can apply for incorporation in e-form INC-32?
Solution: Yes this form can be used for Incorporation of the Company even when Company has got name Availability through INC-1.
At point No. 5(a)(i) of INC-32 there is a option “Whether Name is already approved by Registrar of Companies” Company has to select Yes or No in this Option.
In case of Yes (Means Company has got name approval in INC-1) then mention the SRN of such INC-1. But in case name is not approved by INC-1 then mention the name and significance as we were applying in INC-1.
D. If both the person doesn’t have DIN No. whether they can apply for the incorporation of Company. Or one person mandatorily requires having DIN for filing of this form.
As given for certification of form from the proposed director there is option to mention the DIN/PAN of the proposed person. Before submission of the form register the DSC of the concerned person on the MCA website.
Therefore, In case of proposed directors don’t have DIN then PAN No. of directors will be required to mention at the place of affixing of DSC. No need to have DIN at the time of Incorporation of Company.
E. If company is proposed to be incorporate with 7 or less than 7 subscribers then whether promoter can opt the option to incorporate the Company with INC-7?
By the Companies incorporation Fifth Amendment Rules, 2016 the Rule 12 of Companies Incorporation rules has been amended as
"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.INC.2 (for One Person Company) and Form no. INC.7(other than One Person Company) Form No. INC-7 (Part I company and company with more than seven subscribers) and Form No. INC-32 (SPICe )along with the fee.
Therefore, after amendment in Rule 12 if at the time of incorporation No. of proposed subscribers are 7 or less than 7 then there is only one option for incorporation i.e. e-form INC-32 (SPICe). Company can't opt the option to file e-form INC-7.
F. How many DIN can be apply through this form in case of OPC, Private Company or Public Company?
No. of application of DIN through SPICe from fluctuate from Company to Company. Maximum No. of DIN can be apply as per details are given below:
- OPC: Maximum One (1) DIN
- Private Limited Company: Maximum Two (2) DIN
- Public Limited Company: Maximum Three (3) DIN
G. Whether it is mandatory to apply for PAN/TAN through SPICe form?
Yes, w.e.f. 1st February, 2017 it is mandatory for all the Companies filing SPICe form to apply for the PAN/ TAN.
a. MCA21 system will auto generate the pre-filled application forms 49A (PAN) and 49B (TAN) after submission of SPICe, which the stakeholders will be required to download, affix digital signature and then upload both signed forms on MCA21 system as linked forms.
b. SPICe incorporation applications will be processed only after Forms 49A & 49B are duly signed, uploaded and payment is confirmed by MCA.
c. PAN (as allotted by Income Tax Department) will be printed in the Certification of Incorporation, and TAN will be separately communicated to the stakeholders by email.
d. Payment of PAN/TAN application will be made along with payment of SPICe form.
SOME CLARIFICATIONS:
- No Need to attach INC-10
- No need to attach INC-8
- Not allowed to attached physical MOA & AOA (except in case of foreign subscribers)
- Documents relating to the registered office can be attached in this form or can file INC-22 later on.
- INC-9 and declaration from the first directors will be on duly authorized stamp paper.
Any other opinion is also welcome for further clarity of the provision of the Companies Act
Statutory Provisions Contained Under the Act:
Provisions of the Companies Act, 2013 to the extent relevant for our discussion, are stated as under (with necessary comments and modifications, wherever felt necessary)
As stated in Rule 13 the Companies (Incorporation) Rules, 2014:
The Memorandum and Articles of Association of the company shall be signed in the following manner, namely:-
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 apostilled 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) 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
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