ROC FEE AND PROCEDURE TO INCORPORATE THE NEW COMPANY
This query is : Resolved
21 December 2007
DEAR ALL
PL. CONFIRM ME ABOUT FEE/CHARGES ABOUT INCORPORATION OF COMPANY,AND WHAT ARE THE PROCEDURE FOR YHE SAME.
THANKS,
H.ARORA
PL. CONFIRM ME ABOUT FEE/CHARGES ABOUT INCORPORATION OF COMPANY,AND WHAT ARE THE PROCEDURE FOR YHE SAME.
THANKS,
H.ARORA
21 December 2007
ROC Fees for incorporation depends on the Authorised share capital proposed.
21 December 2007
FORMATION OF A PRIVATE COMPANY LIMITED
BY SHARES*
2.1 Background note
A private limited company means a company which has a minimum paid-up
capital of one lakh rupees and which by its articles—
(a) restricts the right to transfer its shares, if any;
(b) limits the number of its members to fifty not including—
u persons who are in the employment of the company;
u persons who, having been formerly in the employment of the
company, were members of the company while in that employment
and have continued to be members after that employment
ceased;
(c) prohibits any invitation to the public1 to subscribe for any shares in, or
debentures of the company ; and
(d) prohibits any invitation or acceptance of deposits2 from persons other
than its members, directors or their relatives3.
A further condition to be satisfied is that the company should not be a
subsidiary of a public company [see section 3(1)(iv)(c)]
For the above purpose, where two or more persons hold one or more shares of
a company jointly, they shall be treated as a single member.
A private limited company enjoys special privileges and exemptions under the
Companies Act as compared to a public limited company. A private company
may be formed by two or more persons by subscribing to the Memorandum
*RELEVANT PROVISIONS :
u Companies Act, 1956 : Sections 12, 13, 14, 15, 20, 26, 28, 30, 33, 34, 35, 36, 147, 303, Sch. X.
u Companies (Central Government’s) General Rules and Forms, 1956 : Rule 4A, eforms 1, 1A,
18 and 32
1. See section 67 of the Companies Act, 1956. If invitation is to more than 50 persons, it is deemed
as an invitation to public.
2. For definition of ‘deposits’, see Companies (Acceptance of Deposits) Rules, 1975.
3. See section 6 of the Companies Act, 1956.
and Articles of Association of the Company. Formation of private limited
company is suitable in the following cases :
u small/family business with lower capital outlay
u promoter intends to keep shareholding control
u funds are not intended to be raised from public
2.2 Obtaining name availability
The promoter should take steps for getting name availability letter from
the Registrar of Companies by complying with the procedure given in
Chapter 1.
2.3 Drafting of Memorandum and Articles of Association
The draft Memorandum and Articles of Association of the Company should be
prepared. It is advisable to get the draft vetted by the Legal Adviser/Professional.
2.3-1 Contents of Memorandum
The memorandum of association shall state :
u the name of the company with "private limited "as the last words;
u the State where the registered office of the company is situated;
u the main objects of the company to be pursued by the company on its
incorporation and objects incidental or ancillary to the attainment of
main objects;
u in case of companies (other than trading corporations) with objects not
confined to one State, the States to whose territories the objects extend;
u that the liability of members is limited by shares;
u the amount of share capital with which the company is to be registered
and the division thereof into shares of a fixed amount.
2.3-2 Form of memorandum
The Memorandum of Association shall be in the form as specified in Table B in
Schedule I or in a form as near thereto as circumstances admit (Appendix 4).
Specimen Memorandum of Association of a Private Company is given in
Appendix 5.
2.3-3 Contents of Articles of Association of private company
The Articles of Association of a private company should be registered and
should contain the restrictive conditions contained in section 3(1)(iii)(a) to (d)
of the Companies Act as stated in para 2.1 above.
2.3-4 Adoption of Table A
A Company limited by shares may adopt all or any of the regulations contained
in Table A in Schedule I (Appendix 6). If Articles are not registered as in the case
of public companies limited by shares, the regulations contained in Table A shall
apply as if they were contained in the duly registered articles. Any exclusion or
modification of Table A should be specific and in case the articles do not exclude
or modify the regulations contained in Table A, the provisions contained in
Table A shall apply. If a company has not expressly or by implication excluded
any regulation in Table A, regulation will be deemed to be incorporated in its
articles - Seth Mohan Lal v. Grain Chambers Ltd. [1965] 38 Comp. Cas. 543 (SC).
2.3-5 Specimen Articles
Specimen Articles of Association of a Private Company is given in Appendix 7.
2.4 Printing of MoA
The Memorandum and Articles of Association should be printed, divided into
paragraphs and numbered consecutively.
2.4-1 Offset printing
Offset printing is one of the methods of printing developed recently. This system
is as good as normal printing and hence there does not appear any objection in
accepting the same by the Registrar for the purpose of registration - Circular
No. 3/81[F.No. 8/31/15/80-CL-V], dated 15-12-1981 (Annex 2.1).
2.4-2 Computer Printing
All computer printed memorandum and articles of association are acceptable,
provided they are legibly printed - Circular No. 7 of 1993, dated 22-6-1993 (Annex
2.2).
2.5 Stamping of MoA
The Memorandum and Articles of Association should be duly stamped in
accordance with the rates applicable to the State in which the registered office
of the company is to be situated. Refer Appendix 8 for stamp duty rates
applicable to various States.
2.6 Subscription to MoA
The Memorandum of Association should be subscribed by not less than 2
persons. Each subscriber should take at least one share and shall write opposite
to his name the number of shares he takes. The subscribers must subscribe and
pay for shares to the extent of not less than Rs.1 lakh in order to comply with
the minimum capital requirements for a private company.
2.6-1 Change of subscribers
The names of subscribers should tally with the list of promoters/first directors
stated in eForm 1A (Annex 1.1). In case of any change in the names amongst the
subscribers, a fresh eform 1A (Annex 1.1) should be filed and the Registrar of
Companies may allow the same name [if otherwise available] after six months*
from the date on which the name was allowed to the original promoter(s) -
Circular No. 1 of 1990, dated 5-1-1990 (Annex 2.3).
*Previously, three months.
2.6-2 Deletion of name of subscribers
If the change involves deletion of a subscriber, it is sufficient if a “No objection
letter” is obtained from the deleted subscriber and filed with the Registrar of
Companies.
2.7 Signing of MoA and AOA
The Memorandum of Association and AOA should be signed by each subscriber
who shall add his address, description and occupation (if any) in the presence
of at least one witness who shall likewise add his address, description and
occupation, if any. The date of MoA should be a date subsequent to the date of
stamping.
2.7-1 Power of Attorney
When it is not possible for a company to obtain personal signatures of the
subscribers to the memorandum, the memorandum of association and articles
of a company and any amendments thereto may be signed on the subscriber’s
behalf by an agent if the latter is authorised by a power of attorney to do so -
Circular No. 128/HCC/64, dated 27-7-1964 (Annex 2.4).
2.7-2 Signing by subscriber who is illiterate
Where an executant of a memorandum of association is illiterate, he shall give
his thumb impression or mark which shall be described as such by the
subscriber or person writing for him - Letter No. 8/15/58/PR, dated 13-9-1958
(Annex 2.5).
2.7-3 Corporate Subscriber
In case the subscriber to memorandum is a company, the memorandum and
articles should be signed by the duly authorised agent.
2.8 DIN, Digital Signature and Identity/Address Proof
It should be ensured that all the proposed directors have obtained a Director
Identification Number and at least one of them hold a Valid Digital Signature
required to submit eforms. Where a professional1 is engaged to file application
for incorporation of the company and the statutory declaration in Form 1, the
professional should have valid digital signature certificate (DSC). Further, the
professional engaged to certify Form 18 and Form 32 should also have valid
DSC. The documents evidencing address and identity of the proposed directors
should be collected. Refer Chapter 202 for procedure to obtain Director
Identification Number and Chapter 360 for Digital Signature Certificate.
2.9 Filling up of eforms
Before uploading eforms, all the required eforms i.e., eform 1, eform 32 and
eform 18 should be downloaded from the portal, filled in, digitally signed, prescrutinised
and kept ready for uploading through MCA portal.
1. See section 33(2) of the Companies Act, 1956.
2.10 Submission of eform 1 with the Registrar
An application in eform 1 (Annex 2.6 for specimen filled in form) should be filed
with the Registrar of Companies through MCA Portal, www.mca.gov.in. The
Service Request Number generated on filing Form 1A for name approval shall
be quoted in eform 1.
2.10-1 Who can file?
The eform 1 shall be filed by a person named in the Articles as a director,
manager or secretary of the company or an advocate or an attorney or pleader
or a Company Secretary or Chartered Accountant (in whole-time practice) duly
authorised by the promoters.
2.10-2 Time Limit
This eform should be filed during the validity period of name availability, (i.e.)
within six months of the date of name approval letter issued by the Registrar of
Companies.
2.10-3 Stamp duty
The declaration in Form 1 and the Memorandum and Articles required to be
submitted in original to the ROC office should be duly stamped in accordance
with the Stamp Duty prevailing in the State in which the registered office of the
company is proposed to be situated.
2.10-4 Attachments
The following documents should be attached:
u Memorandum and Articles of Association
u Annexure containing details of subscribers (if the number is more
than 7)
u The agreement, if any, which the company proposes to enter into with
any individual for appointment as its managing or whole-time director or
manager
u Power of Attorney (if the documents are filed by professional) (Annex
2.7).
2.10-5 How to attach documents?
The attachments shall be in PDF format. A physical document can be converted
into an electronic document through scanning. A soft copy may also be
converted into PDF format and used as an attachment to eform.
2.10-6 Digital Signature
The eform should be digitally signed by a person named in the Articles as a
director, manager or secretary of the company or an advocate or an attorney
or pleader or a Company Secretary or Chartered Accountant (in whole-time
practice in India) duly authorised by the promoters. [See section 33(2) of the
Companies Act, 1956. Explanation to section 33(2)]
2.10-7 Filing and Registration fee
Filing fee should be paid for Articles of Association and eform 1. In addition, fee
for registration of the company shall be paid. The fees shall relate to the
authorised capital of the Company and as per Schedule X of the Companies Act,
1956 (Appendix 9)
2.10-8 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.11 Submission of eform 32 with the Registrar
Simultaneously with filing of application for incorporation in Form No. 1, a
return containing the particulars of directors in eform 32 (Annex 2.8 for
specimen filled in form) should be filed with the Registrar of Companies
through MCA Portal. On uploading of eform 1, the system will display a message
instructing the user to upload eform 32. This button should be clicked and
eform 32 should be uploaded.
2.11-1 Who can file?
The eform 32 shall be filed by a person named in the Articles as managing
director or director, duly authorised by the promoters.
2.11-2 Use of eform 32 Addendum
Form 32 can be used only for 3 directors. If the number of directors exceeds
three, eform 32 Addendum should be filed through MCA Portal quoting service
request number of eform 32.
2.11-3 Time Limit
This eform should be filed simultaneously with eform 1.
2.11-4 Pre-certification by professionals
Pre-certification from the chartered accountant/cost accountant/company
secretary (in whole time practice) should be obtained.
2.11-5 Attachments
The following documents should be attached :
u Photographs of appointees
u Consent letters for appointment (Annex 2.9)
u Declaration regarding disqualification
2.11-6 How to attach documents?
The attachments enclosure shall be in PDF format. A physical document can be
converted into an electronic document through scanning. A soft copy may also
be converted into PDF format and used as an attachment to eform.
2.11-7 Digital Signature
The eform should be digitally signed by a person named in the Articles as
managing director or director, duly authorised by the promoters.
2.11-8 Filing fee
Filing fee shall relate to the authorised capital of the Company and as per
Schedule X of the Companies Act, 1956 (Appendix 9).
2.11-9 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.12 Submission of eform 18 with the Registrar
Simultaneously, a notice containing the situation of registered office in eform
18 (Annex 2.10 for specimen filled-in form) should be filed with the Registrar
of Companies through MCA Portal. On uploading eforms 1 & 32, the system will
display a message instructing the user to upload eform 18 and the user must
click the button and upload the same.
2.12-1 Who can file?
The eform 18 shall be filed by a person named in the Articles as managing
director or director, duly authorised by the promoters.
2.12-2 Time Limit
This eform should be filed simultaneously with eform 1.
2.12-3 Pre-certification by professionals
Pre-certification from the chartered accountant/cost accountant/company
secretary (in whole time practice) should be obtained.
2.12-4 Attachments
No mandatory attachment. Address proof may be given as optional attachment.
2.12-5 Digital Signature
The eform should be digitally signed by a person named in the Articles as
managing director or director or manager or secretary, duly authorised by the
promoters.
2.12-6 Filing fee
Filing fee shall relate to the authorised capital of the Company and as per
Schedule X of the Companies Act, 1956 (Appendix 9).
2.12-7 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.13 Payment
Since this activity involves filing of multiple eforms, the payment receipt (in case
of online payment) or challan (in case of off-line payment) shall be generated
by the system only after all the eforms are uploaded. A combined receipt/
challan shall be generated for all the eforms together.
2.13-1 Mode of Payment
The filing fee should be paid through one of the specified modes viz., remittance
in authorised banks, credit card or through internet banking. In case of online
payment, filing process shall be complete immediately. (See Appendix 18).
2.13-2 Procedure in case of off-line payment
In case of remittance through authorised bank, a pre-filled challan containing
the SRN, date of challan, expiry date, name and designation of user by whom
challan is tendered, name and address of the company, particulars of remittance,
total amount and Head of account shall be generated by the system. The
challan should be used for making payment before the date of expiry
mentioned therein and the transaction shall be completed by the concerned
banks.
2.13-3 Non-payment of fee before due date
If the payment is not made by pay by date mentioned in challan, submission of
form shall be regarded as incomplete and an e-mail will be sent to the applicant
that the form cannot be regarded as filed due to non-payment. The status of
payment can be verified through MCA portal.
2.14 Physical submission of Stamped documents
Immediately after filing eforms, the Original and duly stamped and signed
declaration in eform1 and the Original and duly stamped and signed Memorandum
and Articles of Association should be physically submitted to the Registrar
of Companies quoting the concerned Service Request Number. In case of
failure to file physical documents, filing will not be considered and legal action
will be taken.
2.15 Certificate of Incorporation
The Registrar of Companies shall process the application and on being satisfied
with the compliance of all formalities, register the company, allot a Corporate
Identification Number (CIN) which shall be quoted in all correspondences/
eforms and issue a Certificate of Incorporation. On the issue of the certificate
of incorporation, the company shall come into being as a separate entity from
the date specified therein. The Certificate of Incorporation shall be conclusive
evidence that all the requirements of the Act have been duly complied with.
2.15-1 Time Limit as per Citizen Charter
As per Citizen Charter of DCA (Appendix 10) the Certificate of Incorporation
should be issued within 14 days. Refer Appendix 11 for DCA circulars regarding
allotment of CIN.
2.15-2 Safe custody
The Original Certificate of Incorporation, being a permanant record, should be
collected from the Registrar of Companies and kept under safe custody.
2.16 Publication of Name
On incorporation of the company, the name of the company should be
published in the following manner:
2.16-1 Every company should—
u paint or affix its name and the address of its registered office and keep
the same painted or affixed, on the outside of every office or place in
which its business is carried on, in a conspicuous position, in letters easily
legible; and if the characters employed therefor are not those of the
language, or one of the languages, in general use in that locality, also in
the characters of that language or of one of those languages;
u have its name engraven in legible characters on its seal;
u have its name and the address of its registered office mentioned in legible
characters in all its business letters, bill heads and letter papers and in all
its notices and other official publications ; and also have its name so
mentioned in all bills of exchange, hundies, promissory notes, endorsements,
cheques and orders for money or goods purporting to be signed
by or on behalf of the company, and in all bills of parcels, invoices,
receipts and letters of credit of the company.
2.17 Pre-scrutiny of documents
It is advisable to submit the full set of documents to the Registrar for prescrutiny.
This is optional but will insure that the documents to be uploaded
through the MCA portal are in order and not defective in any manner. Since the
defective documents will be required to be re-submitted leading to time delay,
it is preferable to use the facility of pre-scrutiny.
ANNEX 2.1
(Refer Para 2.4-1)
DCA CIRCULAR : OFFSET PRINTING OF
MEMORANDUM OR ARTICLES
Whether memorandum or articles of association printed by offset printing method can
be accepted for the purposes of registration of companies
A question has been raised whether memorandum and articles of association printed by
offset printing method can be accepted by the Registrar of Companies for the purpose
of registration. The matter has been carefully examined by the Department and it is of
the view that offset printing is one of the methods of printing developed recently. This
system is as good as normal printing and hence there does not appear any objection in
accepting the same by the Registrar for the purpose of registration.
Source : Circular No. 3/81 [F.No. 8/31/15/80-CL-V], dated 15-12-1981.
ANNEX 2.2
(Refer Para 2.4-2)
DCA CIRCULAR : COMPUTER PRINTING OF MEMORANDUM
Acceptance of computer printed documents for registration of companies
The Department has received representations that in view of advancement in computer
laser printing techniques, the documents printed on laser printers have same quality of
printing as in letter press. In view of this fact the memorandum and articles printed on
computer laser printers may be accepted by the Registrars for registration of companies
for purposes of sections 15 and 30. This matter has been reviewed by the Government
and it has now been decided that with immediate effect the Registrar should accept and
take on record all computer printed memorandum and articles provided the documents
are neatly and legibly printed and comply with the other requirements of the Act.
Source : Circular No. 7 of 1993, dated 22-6-1993.
ANNEX 2.3
(Refer Para 2.6-1)
DCA CIRCULARS : FRESH APPLICATION FORM FOR REGISTRATION
Application form to be filled up in all respects and signed by one of the promoters -
Instructions to Registrars
CLARIFICATION 1
I am directed to refer to this Department’s Circular No. 27/1/89-CL-III, dated 17th
February, 1989, on the above subject (see Clarification 2) wherein you were requested
to advise your constituents to ensure that the application form is signed by one or more
amongst the promoters and in case one or more of the promoters are thereafter no more
interested in participating in the promotion of the new company, a no objection letter
from such promoter is made available to the Registrar of Companies at the time of
registration of the new company. Instances came to the notice of the Department that
some promoters are pre-empting the names, which is not a healthy practice. It has,
accordingly, been decided that, in future, Registrars of Companies should register the
company only in cases where the promoters, as per availability of name and application,
are also the subscribers to the memorandum and articles of association of the proposed
company at the time of its registration. In case of any change in the name(s) amongst the
subscribers, the changed subscribers are advised to make fresh application for availability
of name. The Registrar may, as per existing procedure, allow the same name, if
otherwise available, after three months* from the date when the name was allowed to
the original promoter(s).
Source : Circular No. 1 of 1990, dated 5-1-1990.
CLARIFICATION 2
As per the application form for availability of names (Form No. 1A), prescribed under
rule 4A of the Companies (Central Government’s) General Rules and Forms, 1956, the
promoters are, inter alia, required to give the names and addresses of the prospective
directors or promoters, as also the name(s) and address(es) of the person(s) applying for
availability of names. You are requested to advise your constituents to ensure that the
application form is filled up in all respects and the application is made by one or more
amongst the promoters. The Registrars of Companies have been advised to ensure at the
time of registration of a new company that the subscribers to the memorandum and
articles of association tally with the list of promoters/first directors stated in the
application for availability of names and in case, one or more of the promoters are not
interested in participating in the promotion of a new company, at a later stage, a “Noobjection
letter” from such promoter(s) is made available to the Registrar while
submitting the documents for registration. The Registrars of Companies are also being
advised to dispose of applications for availability of names ordinarily within 14 days of
the receipt of application and to correspond with the applicant promoter(s) in this behalf.
Source : Letter F.No. 27/1/89-CL-III, dated 17-2-1989.
*Now, six months.
ANNEX 2.4
(Refer Para 2.7-1)
DCA CIRCULAR : AUTHORISATION FOR SIGNING MEMORANDUM
Whether general authorised agent can sign memorandum or any amendment thereto on
behalf of subscriber
It has been brought to the notice of the Company Law Board that some Registrars of
Companies have been insisting that the memorandum of association of a company and
any amendments thereto should be signed by the subscribers themselves and not
through their constituted attorneys and that this is causing some practical difficulties,
especially where some of the subscribers to the memorandum are foreign parties who
may be collaborating with Indian promoters. The matter has been carefully examined
by the Company Law Board and it has been decided that when it is not possible for a
company, it may be signed on his behalf by an agent if the latter is authorised by a power
of attorney to do so. The same course may also be followed in respect of any amendments
to the memorandum of articles which it may be found necessary to make as a result of
any suggestions in this behalf made by the Registrar concerned after the scrutiny of the
memorandum and articles presented to him for registration. In this connection,
attention is also invited to the last sentence of para 2 of the former Department of
Company Law Administration’s Circular Letter No. 8/15/58, dated 13-9-1958 wherein
it was stated that “An agent may sign the memorandum on behalf of a subscriber if he
is authorised by a power of attorney to do so.”
A suggestion has also been made to the Company Law Board that it would be helpful to
promoters if the Registrar could scrutinise and approve the draft memorandum and
articles of a proposed company before they are presented to him for registration.
Though it may not be possible for the Registrars to accept a definite commitment in this
regard, the Board is of the view that the Registrars should, to the extent possible, offer
their help and advise to those who may approach them in drawing up the memorandum
and articles. This would be specially desirable in cases where promoters have no prior
experience of company promotion.
Source : Circular No. 128/HCC/64, dated 27-7-1964.
ANNEX 2.5
(Refer Para 2.7-2)
DCA LETTER : SIGNATURE OF MEMORANDUM BY
ILLITERATE SUBSCRIBER
Requirement as to signature by a subscriber who is illiterate
It has been brought to the notice of this Department that some practical difficulties have
been experienced in complying with the provisions of sections 13 and 15 in cases where
the subscriber to the memorandum of association of a company is illiterate. Section
13(4)(c) requires each subscriber to the memorandum to write opposite to his name the
number of shares he takes. Section 15(c) requires the memorandum to be signed by each
subscriber (who shall add his address, description and occupation, if any), in the
presence of at least one witness who shall attest the signature and shall likewise add his
address, etc.
After consideration of the position, it has been decided that when an executant of a
memorandum of association is illiterate, he should give his thumb impression or mark
which should be described as such by the subscriber or person writing for him. The latter
should place the name of the executant against or below the mark and authenticate it
by his own signature. He should also write against the name of the subscriber, the
number of shares taken by him. Such person should also read and explain the contents
of the documents to the executant and make an endorsement to that effect on the
document. An agent may sign the memorandum on behalf of a subscriber if he is
authorised by a power of attorney to do so.
FORMATION OF A PRIVATE COMPANY LIMITED
BY SHARES*
2.1 Background note
A private limited company means a company which has a minimum paid-up
capital of one lakh rupees and which by its articles—
(a) restricts the right to transfer its shares, if any;
(b) limits the number of its members to fifty not including—
u persons who are in the employment of the company;
u persons who, having been formerly in the employment of the
company, were members of the company while in that employment
and have continued to be members after that employment
ceased;
(c) prohibits any invitation to the public1 to subscribe for any shares in, or
debentures of the company ; and
(d) prohibits any invitation or acceptance of deposits2 from persons other
than its members, directors or their relatives3.
A further condition to be satisfied is that the company should not be a
subsidiary of a public company [see section 3(1)(iv)(c)]
For the above purpose, where two or more persons hold one or more shares of
a company jointly, they shall be treated as a single member.
A private limited company enjoys special privileges and exemptions under the
Companies Act as compared to a public limited company. A private company
may be formed by two or more persons by subscribing to the Memorandum
*RELEVANT PROVISIONS :
u Companies Act, 1956 : Sections 12, 13, 14, 15, 20, 26, 28, 30, 33, 34, 35, 36, 147, 303, Sch. X.
u Companies (Central Government’s) General Rules and Forms, 1956 : Rule 4A, eforms 1, 1A,
18 and 32
1. See section 67 of the Companies Act, 1956. If invitation is to more than 50 persons, it is deemed
as an invitation to public.
2. For definition of ‘deposits’, see Companies (Acceptance of Deposits) Rules, 1975.
3. See section 6 of the Companies Act, 1956.
and Articles of Association of the Company. Formation of private limited
company is suitable in the following cases :
u small/family business with lower capital outlay
u promoter intends to keep shareholding control
u funds are not intended to be raised from public
2.2 Obtaining name availability
The promoter should take steps for getting name availability letter from
the Registrar of Companies by complying with the procedure given in
Chapter 1.
2.3 Drafting of Memorandum and Articles of Association
The draft Memorandum and Articles of Association of the Company should be
prepared. It is advisable to get the draft vetted by the Legal Adviser/Professional.
2.3-1 Contents of Memorandum
The memorandum of association shall state :
u the name of the company with "private limited "as the last words;
u the State where the registered office of the company is situated;
u the main objects of the company to be pursued by the company on its
incorporation and objects incidental or ancillary to the attainment of
main objects;
u in case of companies (other than trading corporations) with objects not
confined to one State, the States to whose territories the objects extend;
u that the liability of members is limited by shares;
u the amount of share capital with which the company is to be registered
and the division thereof into shares of a fixed amount.
2.3-2 Form of memorandum
The Memorandum of Association shall be in the form as specified in Table B in
Schedule I or in a form as near thereto as circumstances admit (Appendix 4).
Specimen Memorandum of Association of a Private Company is given in
Appendix 5.
2.3-3 Contents of Articles of Association of private company
The Articles of Association of a private company should be registered and
should contain the restrictive conditions contained in section 3(1)(iii)(a) to (d)
of the Companies Act as stated in para 2.1 above.
2.3-4 Adoption of Table A
A Company limited by shares may adopt all or any of the regulations contained
in Table A in Schedule I (Appendix 6). If Articles are not registered as in the case
of public companies limited by shares, the regulations contained in Table A shall
apply as if they were contained in the duly registered articles. Any exclusion or
modification of Table A should be specific and in case the articles do not exclude
or modify the regulations contained in Table A, the provisions contained in
Table A shall apply. If a company has not expressly or by implication excluded
any regulation in Table A, regulation will be deemed to be incorporated in its
articles - Seth Mohan Lal v. Grain Chambers Ltd. [1965] 38 Comp. Cas. 543 (SC).
2.3-5 Specimen Articles
Specimen Articles of Association of a Private Company is given in Appendix 7.
2.4 Printing of MoA
The Memorandum and Articles of Association should be printed, divided into
paragraphs and numbered consecutively.
2.4-1 Offset printing
Offset printing is one of the methods of printing developed recently. This system
is as good as normal printing and hence there does not appear any objection in
accepting the same by the Registrar for the purpose of registration - Circular
No. 3/81[F.No. 8/31/15/80-CL-V], dated 15-12-1981 (Annex 2.1).
2.4-2 Computer Printing
All computer printed memorandum and articles of association are acceptable,
provided they are legibly printed - Circular No. 7 of 1993, dated 22-6-1993 (Annex
2.2).
2.5 Stamping of MoA
The Memorandum and Articles of Association should be duly stamped in
accordance with the rates applicable to the State in which the registered office
of the company is to be situated. Refer Appendix 8 for stamp duty rates
applicable to various States.
2.6 Subscription to MoA
The Memorandum of Association should be subscribed by not less than 2
persons. Each subscriber should take at least one share and shall write opposite
to his name the number of shares he takes. The subscribers must subscribe and
pay for shares to the extent of not less than Rs.1 lakh in order to comply with
the minimum capital requirements for a private company.
2.6-1 Change of subscribers
The names of subscribers should tally with the list of promoters/first directors
stated in eForm 1A (Annex 1.1). In case of any change in the names amongst the
subscribers, a fresh eform 1A (Annex 1.1) should be filed and the Registrar of
Companies may allow the same name [if otherwise available] after six months*
from the date on which the name was allowed to the original promoter(s) -
Circular No. 1 of 1990, dated 5-1-1990 (Annex 2.3).
*Previously, three months.
2.6-2 Deletion of name of subscribers
If the change involves deletion of a subscriber, it is sufficient if a “No objection
letter” is obtained from the deleted subscriber and filed with the Registrar of
Companies.
2.7 Signing of MoA and AOA
The Memorandum of Association and AOA should be signed by each subscriber
who shall add his address, description and occupation (if any) in the presence
of at least one witness who shall likewise add his address, description and
occupation, if any. The date of MoA should be a date subsequent to the date of
stamping.
2.7-1 Power of Attorney
When it is not possible for a company to obtain personal signatures of the
subscribers to the memorandum, the memorandum of association and articles
of a company and any amendments thereto may be signed on the subscriber’s
behalf by an agent if the latter is authorised by a power of attorney to do so -
Circular No. 128/HCC/64, dated 27-7-1964 (Annex 2.4).
2.7-2 Signing by subscriber who is illiterate
Where an executant of a memorandum of association is illiterate, he shall give
his thumb impression or mark which shall be described as such by the
subscriber or person writing for him - Letter No. 8/15/58/PR, dated 13-9-1958
(Annex 2.5).
2.7-3 Corporate Subscriber
In case the subscriber to memorandum is a company, the memorandum and
articles should be signed by the duly authorised agent.
2.8 DIN, Digital Signature and Identity/Address Proof
It should be ensured that all the proposed directors have obtained a Director
Identification Number and at least one of them hold a Valid Digital Signature
required to submit eforms. Where a professional1 is engaged to file application
for incorporation of the company and the statutory declaration in Form 1, the
professional should have valid digital signature certificate (DSC). Further, the
professional engaged to certify Form 18 and Form 32 should also have valid
DSC. The documents evidencing address and identity of the proposed directors
should be collected. Refer Chapter 202 for procedure to obtain Director
Identification Number and Chapter 360 for Digital Signature Certificate.
2.9 Filling up of eforms
Before uploading eforms, all the required eforms i.e., eform 1, eform 32 and
eform 18 should be downloaded from the portal, filled in, digitally signed, prescrutinised
and kept ready for uploading through MCA portal.
1. See section 33(2) of the Companies Act, 1956.
2.10 Submission of eform 1 with the Registrar
An application in eform 1 (Annex 2.6 for specimen filled in form) should be filed
with the Registrar of Companies through MCA Portal, www.mca.gov.in. The
Service Request Number generated on filing Form 1A for name approval shall
be quoted in eform 1.
2.10-1 Who can file?
The eform 1 shall be filed by a person named in the Articles as a director,
manager or secretary of the company or an advocate or an attorney or pleader
or a Company Secretary or Chartered Accountant (in whole-time practice) duly
authorised by the promoters.
2.10-2 Time Limit
This eform should be filed during the validity period of name availability, (i.e.)
within six months of the date of name approval letter issued by the Registrar of
Companies.
2.10-3 Stamp duty
The declaration in Form 1 and the Memorandum and Articles required to be
submitted in original to the ROC office should be duly stamped in accordance
with the Stamp Duty prevailing in the State in which the registered office of the
company is proposed to be situated.
2.10-4 Attachments
The following documents should be attached:
u Memorandum and Articles of Association
u Annexure containing details of subscribers (if the number is more
than 7)
u The agreement, if any, which the company proposes to enter into with
any individual for appointment as its managing or whole-time director or
manager
u Power of Attorney (if the documents are filed by professional) (Annex
2.7).
2.10-5 How to attach documents?
The attachments shall be in PDF format. A physical document can be converted
into an electronic document through scanning. A soft copy may also be
converted into PDF format and used as an attachment to eform.
2.10-6 Digital Signature
The eform should be digitally signed by a person named in the Articles as a
director, manager or secretary of the company or an advocate or an attorney
or pleader or a Company Secretary or Chartered Accountant (in whole-time
practice in India) duly authorised by the promoters. [See section 33(2) of the
Companies Act, 1956. Explanation to section 33(2)]
2.10-7 Filing and Registration fee
Filing fee should be paid for Articles of Association and eform 1. In addition, fee
for registration of the company shall be paid. The fees shall relate to the
authorised capital of the Company and as per Schedule X of the Companies Act,
1956 (Appendix 9)
2.10-8 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.11 Submission of eform 32 with the Registrar
Simultaneously with filing of application for incorporation in Form No. 1, a
return containing the particulars of directors in eform 32 (Annex 2.8 for
specimen filled in form) should be filed with the Registrar of Companies
through MCA Portal. On uploading of eform 1, the system will display a message
instructing the user to upload eform 32. This button should be clicked and
eform 32 should be uploaded.
2.11-1 Who can file?
The eform 32 shall be filed by a person named in the Articles as managing
director or director, duly authorised by the promoters.
2.11-2 Use of eform 32 Addendum
Form 32 can be used only for 3 directors. If the number of directors exceeds
three, eform 32 Addendum should be filed through MCA Portal quoting service
request number of eform 32.
2.11-3 Time Limit
This eform should be filed simultaneously with eform 1.
2.11-4 Pre-certification by professionals
Pre-certification from the chartered accountant/cost accountant/company
secretary (in whole time practice) should be obtained.
2.11-5 Attachments
The following documents should be attached :
u Photographs of appointees
u Consent letters for appointment (Annex 2.9)
u Declaration regarding disqualification
2.11-6 How to attach documents?
The attachments enclosure shall be in PDF format. A physical document can be
converted into an electronic document through scanning. A soft copy may also
be converted into PDF format and used as an attachment to eform.
2.11-7 Digital Signature
The eform should be digitally signed by a person named in the Articles as
managing director or director, duly authorised by the promoters.
2.11-8 Filing fee
Filing fee shall relate to the authorised capital of the Company and as per
Schedule X of the Companies Act, 1956 (Appendix 9).
2.11-9 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.12 Submission of eform 18 with the Registrar
Simultaneously, a notice containing the situation of registered office in eform
18 (Annex 2.10 for specimen filled-in form) should be filed with the Registrar
of Companies through MCA Portal. On uploading eforms 1 & 32, the system will
display a message instructing the user to upload eform 18 and the user must
click the button and upload the same.
2.12-1 Who can file?
The eform 18 shall be filed by a person named in the Articles as managing
director or director, duly authorised by the promoters.
2.12-2 Time Limit
This eform should be filed simultaneously with eform 1.
2.12-3 Pre-certification by professionals
Pre-certification from the chartered accountant/cost accountant/company
secretary (in whole time practice) should be obtained.
2.12-4 Attachments
No mandatory attachment. Address proof may be given as optional attachment.
2.12-5 Digital Signature
The eform should be digitally signed by a person named in the Articles as
managing director or director or manager or secretary, duly authorised by the
promoters.
2.12-6 Filing fee
Filing fee shall relate to the authorised capital of the Company and as per
Schedule X of the Companies Act, 1956 (Appendix 9).
2.12-7 Filing instruction
Refer Chapter 358 for detailed instructions for filing e-forms.
2.13 Payment
Since this activity involves filing of multiple eforms, the payment receipt (in case
of online payment) or challan (in case of off-line payment) shall be generated
by the system only after all the eforms are uploaded. A combined receipt/
challan shall be generated for all the eforms together.
2.13-1 Mode of Payment
The filing fee should be paid through one of the specified modes viz., remittance
in authorised banks, credit card or through internet banking. In case of online
payment, filing process shall be complete immediately. (See Appendix 18).
2.13-2 Procedure in case of off-line payment
In case of remittance through authorised bank, a pre-filled challan containing
the SRN, date of challan, expiry date, name and designation of user by whom
challan is tendered, name and address of the company, particulars of remittance,
total amount and Head of account shall be generated by the system. The
challan should be used for making payment before the date of expiry
mentioned therein and the transaction shall be completed by the concerned
banks.
2.13-3 Non-payment of fee before due date
If the payment is not made by pay by date mentioned in challan, submission of
form shall be regarded as incomplete and an e-mail will be sent to the applicant
that the form cannot be regarded as filed due to non-payment. The status of
payment can be verified through MCA portal.
2.14 Physical submission of Stamped documents
Immediately after filing eforms, the Original and duly stamped and signed
declaration in eform1 and the Original and duly stamped and signed Memorandum
and Articles of Association should be physically submitted to the Registrar
of Companies quoting the concerned Service Request Number. In case of
failure to file physical documents, filing will not be considered and legal action
will be taken.
2.15 Certificate of Incorporation
The Registrar of Companies shall process the application and on being satisfied
with the compliance of all formalities, register the company, allot a Corporate
Identification Number (CIN) which shall be quoted in all correspondences/
eforms and issue a Certificate of Incorporation. On the issue of the certificate
of incorporation, the company shall come into being as a separate entity from
the date specified therein. The Certificate of Incorporation shall be conclusive
evidence that all the requirements of the Act have been duly complied with.
2.15-1 Time Limit as per Citizen Charter
As per Citizen Charter of DCA (Appendix 10) the Certificate of Incorporation
should be issued within 14 days. Refer Appendix 11 for DCA circulars regarding
allotment of CIN.
2.15-2 Safe custody
The Original Certificate of Incorporation, being a permanant record, should be
collected from the Registrar of Companies and kept under safe custody.
2.16 Publication of Name
On incorporation of the company, the name of the company should be
published in the following manner:
2.16-1 Every company should—
u paint or affix its name and the address of its registered office and keep
the same painted or affixed, on the outside of every office or place in
which its business is carried on, in a conspicuous position, in letters easily
legible; and if the characters employed therefor are not those of the
language, or one of the languages, in general use in that locality, also in
the characters of that language or of one of those languages;
u have its name engraven in legible characters on its seal;
u have its name and the address of its registered office mentioned in legible
characters in all its business letters, bill heads and letter papers and in all
its notices and other official publications ; and also have its name so
mentioned in all bills of exchange, hundies, promissory notes, endorsements,
cheques and orders for money or goods purporting to be signed
by or on behalf of the company, and in all bills of parcels, invoices,
receipts and letters of credit of the company.
2.17 Pre-scrutiny of documents
It is advisable to submit the full set of documents to the Registrar for prescrutiny.
This is optional but will insure that the documents to be uploaded
through the MCA portal are in order and not defective in any manner. Since the
defective documents will be required to be re-submitted leading to time delay,
it is preferable to use the facility of pre-scrutiny.
ANNEX 2.1
(Refer Para 2.4-1)
DCA CIRCULAR : OFFSET PRINTING OF
MEMORANDUM OR ARTICLES
Whether memorandum or articles of association printed by offset printing method can
be accepted for the purposes of registration of companies
A question has been raised whether memorandum and articles of association printed by
offset printing method can be accepted by the Registrar of Companies for the purpose
of registration. The matter has been carefully examined by the Department and it is of
the view that offset printing is one of the methods of printing developed recently. This
system is as good as normal printing and hence there does not appear any objection in
accepting the same by the Registrar for the purpose of registration.
Source : Circular No. 3/81 [F.No. 8/31/15/80-CL-V], dated 15-12-1981.
ANNEX 2.2
(Refer Para 2.4-2)
DCA CIRCULAR : COMPUTER PRINTING OF MEMORANDUM
Acceptance of computer printed documents for registration of companies
The Department has received representations that in view of advancement in computer
laser printing techniques, the documents printed on laser printers have same quality of
printing as in letter press. In view of this fact the memorandum and articles printed on
computer laser printers may be accepted by the Registrars for registration of companies
for purposes of sections 15 and 30. This matter has been reviewed by the Government
and it has now been decided that with immediate effect the Registrar should accept and
take on record all computer printed memorandum and articles provided the documents
are neatly and legibly printed and comply with the other requirements of the Act.
Source : Circular No. 7 of 1993, dated 22-6-1993.
ANNEX 2.3
(Refer Para 2.6-1)
DCA CIRCULARS : FRESH APPLICATION FORM FOR REGISTRATION
Application form to be filled up in all respects and signed by one of the promoters -
Instructions to Registrars
CLARIFICATION 1
I am directed to refer to this Department’s Circular No. 27/1/89-CL-III, dated 17th
February, 1989, on the above subject (see Clarification 2) wherein you were requested
to advise your constituents to ensure that the application form is signed by one or more
amongst the promoters and in case one or more of the promoters are thereafter no more
interested in participating in the promotion of the new company, a no objection letter
from such promoter is made available to the Registrar of Companies at the time of
registration of the new company. Instances came to the notice of the Department that
some promoters are pre-empting the names, which is not a healthy practice. It has,
accordingly, been decided that, in future, Registrars of Companies should register the
company only in cases where the promoters, as per availability of name and application,
are also the subscribers to the memorandum and articles of association of the proposed
company at the time of its registration. In case of any change in the name(s) amongst the
subscribers, the changed subscribers are advised to make fresh application for availability
of name. The Registrar may, as per existing procedure, allow the same name, if
otherwise available, after three months* from the date when the name was allowed to
the original promoter(s).
Source : Circular No. 1 of 1990, dated 5-1-1990.
CLARIFICATION 2
As per the application form for availability of names (Form No. 1A), prescribed under
rule 4A of the Companies (Central Government’s) General Rules and Forms, 1956, the
promoters are, inter alia, required to give the names and addresses of the prospective
directors or promoters, as also the name(s) and address(es) of the person(s) applying for
availability of names. You are requested to advise your constituents to ensure that the
application form is filled up in all respects and the application is made by one or more
amongst the promoters. The Registrars of Companies have been advised to ensure at the
time of registration of a new company that the subscribers to the memorandum and
articles of association tally with the list of promoters/first directors stated in the
application for availability of names and in case, one or more of the promoters are not
interested in participating in the promotion of a new company, at a later stage, a “Noobjection
letter” from such promoter(s) is made available to the Registrar while
submitting the documents for registration. The Registrars of Companies are also being
advised to dispose of applications for availability of names ordinarily within 14 days of
the receipt of application and to correspond with the applicant promoter(s) in this behalf.
Source : Letter F.No. 27/1/89-CL-III, dated 17-2-1989.
*Now, six months.
ANNEX 2.4
(Refer Para 2.7-1)
DCA CIRCULAR : AUTHORISATION FOR SIGNING MEMORANDUM
Whether general authorised agent can sign memorandum or any amendment thereto on
behalf of subscriber
It has been brought to the notice of the Company Law Board that some Registrars of
Companies have been insisting that the memorandum of association of a company and
any amendments thereto should be signed by the subscribers themselves and not
through their constituted attorneys and that this is causing some practical difficulties,
especially where some of the subscribers to the memorandum are foreign parties who
may be collaborating with Indian promoters. The matter has been carefully examined
by the Company Law Board and it has been decided that when it is not possible for a
company, it may be signed on his behalf by an agent if the latter is authorised by a power
of attorney to do so. The same course may also be followed in respect of any amendments
to the memorandum of articles which it may be found necessary to make as a result of
any suggestions in this behalf made by the Registrar concerned after the scrutiny of the
memorandum and articles presented to him for registration. In this connection,
attention is also invited to the last sentence of para 2 of the former Department of
Company Law Administration’s Circular Letter No. 8/15/58, dated 13-9-1958 wherein
it was stated that “An agent may sign the memorandum on behalf of a subscriber if he
is authorised by a power of attorney to do so.”
A suggestion has also been made to the Company Law Board that it would be helpful to
promoters if the Registrar could scrutinise and approve the draft memorandum and
articles of a proposed company before they are presented to him for registration.
Though it may not be possible for the Registrars to accept a definite commitment in this
regard, the Board is of the view that the Registrars should, to the extent possible, offer
their help and advise to those who may approach them in drawing up the memorandum
and articles. This would be specially desirable in cases where promoters have no prior
experience of company promotion.
Source : Circular No. 128/HCC/64, dated 27-7-1964.
ANNEX 2.5
(Refer Para 2.7-2)
DCA LETTER : SIGNATURE OF MEMORANDUM BY
ILLITERATE SUBSCRIBER
Requirement as to signature by a subscriber who is illiterate
It has been brought to the notice of this Department that some practical difficulties have
been experienced in complying with the provisions of sections 13 and 15 in cases where
the subscriber to the memorandum of association of a company is illiterate. Section
13(4)(c) requires each subscriber to the memorandum to write opposite to his name the
number of shares he takes. Section 15(c) requires the memorandum to be signed by each
subscriber (who shall add his address, description and occupation, if any), in the
presence of at least one witness who shall attest the signature and shall likewise add his
address, etc.
After consideration of the position, it has been decided that when an executant of a
memorandum of association is illiterate, he should give his thumb impression or mark
which should be described as such by the subscriber or person writing for him. The latter
should place the name of the executant against or below the mark and authenticate it
by his own signature. He should also write against the name of the subscriber, the
number of shares taken by him. Such person should also read and explain the contents
of the documents to the executant and make an endorsement to that effect on the
document. An agent may sign the memorandum on behalf of a subscriber if he is
authorised by a power of attorney to do so.
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