THE COMPANIES (INCORPORATION)
SECOND AMENDMENT RULES 2017
The
Ministry of Corporate Affairs has amended the Companies (Incorporation) Rules,
2014 and notified the Companies (Incorporation) Second Amendment Rules,
2017. They shall come into force on the date of their publication in the
official gazette. The Ministry has amended the provisions of Rule 28 (Shifting
of Registered office within the same state) and Rule 30 (Shifting of Registered
Office from one state or Union Territory another state). Briefly, no need to publish a notice in news paper and no need to serve
individual notice to debenture holders, depositor and creditors of the Company
in case of shifting of registered office within the same state but from the
jurisdiction of one Registrar of Company to another.
Further,
in case of shifting of registered office from one state to another state, the
advertisement in the Form INC-26 in newspaper shall be made not more than 30
days before the date of filing of application and if no objections is received
from any person in response to the advertisement, the application may be put-up
for orders without hearing.
AMENDMENTS BY CENTRAL GOVERNMENT
S.No.
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Particulars
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Details
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1
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Rule -28
SHIFTING
OF REGISTERED OFFICE WITHIN THE SAME STATE
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An
application seeking confirmation from the Regional Director for shifting the
registered office within the same State from the jurisdiction of one
Registrar of Companies to the jurisdiction of another Registrar of Companies,
shall be filed by the company with the Regional Director
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2
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Form to be filled
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3
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Documents as
stated by amendment
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(a) Board Resolution for shifting of registered
office
(b)
Special Resolution of the members of the company approving the shifting
of registered office;
(c)
a declaration given by the Key Managerial Personnel or any two directors authorized
by the Board, that the company has not defaulted in payment of dues to its
workmen and has either the consent of its creditors for the proposed
shifting or has made necessary provision for the payment thereof
(d)
a declaration not to seek change in the jurisdiction of the Court where cases
for prosecution are pending
(e)
acknowledged copy of intimation to the Chief Secretary of the state as to the
proposed shifting and that the employees interest is not adversely affected
consequent to proposed shifting"
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4
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For post amendment content refer
provided link
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S.No.
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Particulars
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Details
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1
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Rule -30
SHIFTING OF
REGISTERED OFFICE FROM ONE STATE OR UNION TERRITORY TO ANOTHER STATE
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(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
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2
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Form to be filled
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Form
No. lNC.23
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3
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Documents
required (amended)
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(a)
a copy of Memorandum of Association, with proposed alterations;
(b) a copy of the minutes of the general
meeting at which the resolution authorizing such alteration was passed,
giving details of the number of votes cast in favor or against the
resolution;
(c)
a copy of Board Resolution or Power of Attorney or the executed
vakalatnama, as the case may be
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4
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Unchanged provisions
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(2)A
list of creditors and debenture holders drawn up to the latest practicable
date preceding the date of filing of application by not more than one month,
setting forth the following details, namely:-
(a) The names and address of every
creditor and debenture holder of the company;
(b) The nature and respective amounts
due to them in respect of debts, claims or liabilities Provided that the list
of creditors and debenture holders, accompanied by declaration signed by the
company Secretary of the company, if any, and not less than two directors of
the company, one of whom shall be a managing director, where there is one,
stating that
(3) A duly authenticated copy of the list of
creditors shall be kept at the registered office of the company and any
person desirous of inspecting the same may, at any time during the ordinary
hours of business, inspect and take extracts from the same on payment of a
sum not exceeding ten rupees per page to the company.
(4)
There shall also be attached to the application a copy of the acknowledgment
of service of a copy of the application with complete annexure 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
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5
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Substituted
“the company
shall at least fourteen days before the hearing”
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(5) The company shall, not more than
thirty days before the date of filing the application in Form No. INC.23
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6
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Inserted
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(6)
There shall be attached to the application a duly authenticated copy of the
advertisement and notices issued under sub-rule (5), a copy each of the
objection received by the applicant, and tabulated details of responses along
with the counter response from the company received either in the electronic
mode or in physical mode in response to the advertisements and notices issued
under sub-rule (5).
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7
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Objections (if
any)
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(7)
Where no objection has been received from any person in response to the
advertisement or notice under sub-rule (5) or otherwise, the application may
be put up for orders without hearing and the order either approving or
rejecting the application shall be passed within fifteen days of the receipt
of the application.
(8) Where an objection has been received,
(i) The Central Government shall hold a
hearing or hearings, as required and direct the company to file an affidavit
to record the consensus reached at the hearing, upon executing which, the
Central Government shall pass an order approving the shifting, within sixty
days of filing the application.
(ii) where no consensus is reached at the
hearings the company shall file an affidavit specifying the manner in which
objection is to be resolved within a definite time frame, duly reserving the
original jurisdiction to the objector for pursuing its legal remedies, even
after the registered office is shifted, upon execution of which the Central
Government shall pass an order confirming or rejecting the alteration within
sixty days of the filing of application
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8
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Order by C/G
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(9)
The order passed by the Central Government confirming the alteration may be
on such terms and conditions, if any, as it thinks fit, and may include such
order as to costs as it thinks proper:
Provided
that the shifting of registered office shall not be allowed if any inquiry,
inspection or investigation has been initiated against the company or any
prosecution is pending against the company under the Act.
(10)
On completion of such inquiry, inspection or investigation as a consequence
of which no prosecution is envisaged or no prosecution is pending, shifting
of registered office shall be allowed"
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9
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For
post amendment content refer provided link
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For more details, Contact CS Neha Seth at csnehaseth@gmail.com or call us at 9871903449
