Incorporating a co having a nri promoter

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

25 July 2015 I am incorporating a domestic company having two directors(one Indian Resident) & another NRI(holding Indian Passport & staying in china since last 7 years).

I have the following issues:-

1.Is the notarization by public notary sufficient or consulate's/embassies' attestation also required on ID Proof?

2.Who has to attest INC-9 & another affidavit which is on Indian Stamp Paper?Will a public notary of China attest/ notarize an Indian Stamp Paper?

3.How will the witness to MOA & AOA happen? Should the Indian Promoter sign the MOA & AOA and then send it to China where the NRI will sign it.
Who has to witness the MOA/AOA, the consulate or notary?

Pratik Shah

Pratik Shah (Expert)
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25 July 2015 Is that person visiting India for this purpose or he will execute all such documents in Chine?

Bhaskaran Chackrapani Warrier

Bhaskaran Chackrapani Warrier (Expert)
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26 July 2015 1. Consulate/embassy attestation is required.

2. INC-9 and declaration should be executed in China on plain paper, notarize in CHINA and adjudicate in India.

3. MOA and AOA should be first send to CHINA to execute and witness there and then sign and witnessin INDIA.

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Pratik Shah

Pratik Shah (Expert)
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26 July 2015 Agree with Expert.
I want to add one point. There is one provision in Incorporation Rules which says, if the subscribers to MOA is NRI, and if he comes to India for execution of all these documents, then he do not need to get those documents attested in Chine. Normal notary in India will be enough.

I have incorporated one company where both the subscribers were NRI but they came to India for execution of documents. We did only notary on all those documents. In this case, additionally, we also need to attach their Visa Copies.

Querist : Anonymous

Querist : Anonymous (Querist)

26 July 2015 Thank you Mr Shah & Mr Warrier for prompt replies.

Mr Shah,I have also incorporated a company where the NRI was physically present in India,but this case is totally different.

Querist : Anonymous

Querist : Anonymous (Querist)

26 July 2015 Mr Warrier,Thank you so much for the reply.
Could you please put some light on 2nd point. I can get the INC-9 and affidavits made & notarize on plain paper but how and where to get them adjudicated(I don't know what adjudication means in this regard).
I read in Company Incorporation Rules that,if a country is a party to Hague Convention,then there is no need of Consulate's attestation and Public Notary would be sufficient.Since China is a party to it, can't I only go for public notary apostille .
What do you suggest on this.

Asha Kanta Sharma

Asha Kanta Sharma

(Expert)
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01 August 2024 When incorporating a domestic company with an NRI director, certain legal formalities and attestations are required. Here's a detailed guide addressing your specific situation:

### Attestation of INC-9 and Affidavits

1. **INC-9 (Declaration by Subscribers and First Directors) and Affidavit**:
- For Indian Resident Director: These documents can be executed on Indian Stamp Paper and notarized by an Indian Notary Public.
- For NRI Director:
- Since the NRI director is residing in China, the documents can be executed on plain paper and notarized by a local Notary Public in China.

2. **Adjudication of Documents**:
- **Adjudication** refers to the process of validating foreign-executed documents in India. For documents notarized outside India, they need to be adjudicated by the relevant authority in India to confirm their authenticity.
- Documents notarized abroad (including those on plain paper) should ideally be adjudicated by the Indian authorities once they reach India. This involves paying the appropriate stamp duty in India and getting the documents validated by the authorities.

3. **Notarization and Apostille**:
- **Hague Convention**: Since China is a party to the Hague Apostille Convention, the documents notarized by a Chinese Notary Public can be apostilled by the designated authority in China. This eliminates the need for consular attestation.
- The apostilled documents are recognized as legally valid in India.

### Step-by-Step Process for NRI Director’s Documents

1. **Prepare Documents**:
- Draft the INC-9 and the required affidavits on plain paper.
- Get these documents notarized by a Notary Public in China.

2. **Apostille**:
- Have the notarized documents apostilled by the competent authority in China (e.g., the Ministry of Foreign Affairs).

3. **Adjudication in India**:
- Send the apostilled documents to India.
- Submit them to the relevant authority (typically the Sub-Registrar or District Collector) in India for adjudication, which involves paying the stamp duty and getting the documents validated.

### Practical Tips

- **Consult a Professional**: Engage a Company Secretary (CS) or Chartered Accountant (CA) to assist with the process, especially for adjudication in India.
- **Check Local Requirements**: Verify specific state requirements for adjudication, as they can vary.
- **Document Handling**: Ensure secure and prompt courier services for sending documents between China and India to avoid delays.

### Summary

1. **Notarize** the documents (INC-9 and affidavits) by a local Notary Public in China.
2. **Apostille** the notarized documents by the Chinese competent authority.
3. **Send** the apostilled documents to India for **adjudication**, where the stamp duty will be paid, and the documents will be validated by Indian authorities.

By following these steps, you can ensure that the legal requirements for incorporating a company with an NRI director are met efficiently.