Now shifting of registered office from one State to another State under the Companies Act, 1956, requires a petition to be filed with Regional Director, Ministry of Corporate Affairs with effect from 12-08-2012 and earlier the same was required to be made to Company Law Board. The procedure for making the petition under Section 13 of the Companies Act, 2013 is given below.
STEP 1. Hold a Board Meeting to consider the proposal and approve the notice of Extraordinary General meeting and authorise the CS or Director to move an application before RD to alter Clause II of Memorandum of Association within whose jurisdiction the registered office of the company (before change) is situated.
STEP 2. In the board meeting fix up the date, time, and place of the general meeting and approve the notices for this purpose, send the notices, hold the meeting and pass special resolutions.
STEP 3. In case of listed company the resolution should be made by postal ballot as per sec 110. Forward three copies of notice to the stock exchange where the shares of the company are listed. Forward to the stock exchange minutes of the Extra ordinary General Meeting.
STEP 4. Prepare the Minutes of Extraordinary General meeting/ General Meeting. Date of AGM / EGM should be same in the notice and minutes of the meeting
STEP 5. After taking the approval of the members, file a certified copy of the special resolution along with the explanatory statement in Form MGT-14 (Filling of Resolution and agreement to the registrar under section 117) with ROC.
Attachments:
(1) Copy(s) of resolution(s) along with copy of explanatory statement under section 102
(2) Altered memorandum of association
(3) Altered articles of association
STEP 6. Publish a general notice in at least one regional language newspaper and one English language newspaper circulated in the area in which registered office of the company is situated clearly stating the substance of the petition. The notice shall state that any person whose interest is likely affected due to change may intimate to the Regional Director within 21 days of notice.
Advertisement can be published next date from the date of Extraordinary General Meeting. However if the daily is evening newspaper the same date of the Extraordinary General meeting it can be published.
STEP 7. Send individual notices to all creditors (including contingent creditors if any)/debenture holders of the company.
STEP 8. List of Creditors and Debentures should be any date before two months from the date of filing petition. Get no objection from the creditors and particularly from the Banks / financial institutions for change of registered office from one state to another state. A copy of the list of creditors and debenture holders shall be kept at the Registered Office of the company for inspection purpose.
STEP 9. After a gap of one month from the date of sending notices as above, file petition with the Regional Director, Ministry of Corporate Affairs. Previously the petition was required to be filed with Company law Board. Now Regional Directors have been delegated with these powers. The petition has to be filed with the Regional Director with the Regional Office of the Ministry of corporate Affairs in the jurisdiction where the existing registered office is situated.
File the petition in Form INC-23 and also submit a hard copy of the petition along with the enclosures to the Regional Director. The following are the enclosures.
- Certificate of Incorporation
- Latest Balance sheet and profit and loss account
- Memorandum and Articles of Association
- Notice of Extraordinary General meeting and explanatory statement
- Minutes of Extraordinary General meeting
- Certified copy of special resolution for shifting of registered office and for amending the Clause II of Memorandum of Association.
- Copy of advertisement made in English daily and regional newspaper
- Certificate from the statutory auditor certifying the list of creditors
- Certified true copy of receipt evidencing proof of dispatch of notice to chief Secretary of the State concerned by speed post or by courier or by personal delivery
- Affidavit by the directors of the company regarding creditors and list of creditors Affidavit verifying the petition
- Affidavit providing dispatch service and publication of notice
- Memorandum of Appearance or Vakkalat nama
- Board resolution authorizing company secretary / Chartered Accountant or advocate
- Board resolution authorizing the director to submit the petition
- Form MGT-14 along with paid challan
- A copy of Form INC- 23 along with challan
The petition along with the enclosure should be serially numbered. And scanned copy of the petition is filed in Form INC- 23 and a hard copy of the petition is submitted to the concerned Regional Director office. There is no filing fees by way of demand draft required to be enclosed with the petition as the filing fees are paid while filing Form INC- 23 with Regional Director Office.
STEP 10. An affidavit verifying the petition on a non judicial stamp paper Rs. 20 which is notarized shall be attached. Three affidavits are to be given along with the petition. One affidavit is verifying the petition; one affidavit is verifying publication of notice and finally one affidavit verifying the creditors. Where the first two affidavits shall be given by one director, the third affidavit verifying the creditors shall be given by two directors of the company.
In case, if one of the directors is residing in foreign country, he shall give the affidavit from abroad after getting it notarized there.
STEP 11. Petition should not be prepared in the letter head.
STEP 12. File a copy of the notice along with a petition to the Chief Secretary to the Government of the State where the registered office of the company is situated or to the Administrator/Lt. Governor of the Union Territory where the registered office is situated in the Union Territory.
STEP 13. A hearing may take place at the Regional Director office and it should be represented by the company or practicing professional or advocate. The creditors, if any and the representatives of the company may also represent and are heard before making any order.
STEP 14. The RD, on satisfaction, may pass the order on or without hearing the matter.
STEP 15. After receiving the Regional Director order for shifting the registered office, the company is required to file certified copy of the order with the ROC along with Form No. INC- 28 within one month of receipt of certified copy along with the printed copy of the altered memorandum of association. Only when Form INC-23 is approved, Form INC- 28 could be filed.
STEP 16. File Form No. INC- 22 with the new ROC for the situation of the registered office Within 30 days of change.
STEP 17.Make alteration in the MOA with respect to the state in every copy of Memorandum.
STEP 18. Notify the change of registered office in newspaper (optional).
STEP 19. Each stationery, banner, signboard, bills, invoice etc. should show the new address and necessary advice should be sent to shareholders, debenture holders, and other concerned parties.
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