Companies
(Incorporation) Rules New Third Amendments 2016 (27th July, 2016)
Brief
Amendments
RULE 3(2) : A Natural Person shall not be
member of more than 1 (One person company).
RULE 8(2)(a)(ii) : “Word “Under the Trade Marks
Act,1999 and the rules framed there under” has been attached in new.”
RULE 8(6)(n) : The comma between the words
'financial' and 'corporation' shall be omitted in point (n).
RULE 13(2) : Subscription sheet will be
accepted now in type written.
RULE 16 (1)(m) : Now Identity proof and residential
proof not needed If Director is holding Valid Din and he has made declaration
about this in the application form of applying DIN.
RULE 16(1)(q) : INC-10 not required now
RULE 16(2)(g): Now partnership Firm is not
required to file the particulars of subscribers to the ROC at the time of
incorporation.
RULE 26: Publication of Name by company
which has website for conducting online business shall disclose now its name
and address, CIN, tel No. And the name of the person contacted.
RULE 28(2) After completion of the
investigation, company shall change its registered office.
RULE 30(1)(ii) now if the shifting of Registered
office from one state to another by a registered Non- Banking Financial Company
then no objection certificate is also needed from the RBI .
A new rule 37 (Conversion of unlimited liability
company to limited liability company ) has been inserted.
DETAILED AMENDMENTS
RULE
3 (2): One Person Company.-
OLD RULES (Companies (incorporation) Rules, 2014) says that
No person shall be eligible to incorporate more than a One Person Company or
become nominee in more than one such company.
NEW RULES [Companies (Incorporation) Third Amendment Rules2016]
A Natural person shall not
be member of more than a One Person Company at any point of time and the said
person shall not be a nominee of more than a One Person Company".
Word “Natural” has been attached in new.
RULE
8(2)(a)(ii) Undesirable names.
OLD RULES
it
includes the name of a registered trade mark or a trade mark which is subject
of an application for registration, unless the consent of the owner or
applicant for registration, of the trade mark, as the case may be, has been
obtained and produced by the promoters;
NEW RULES
Word “Under the Trade Marks Act,1999 and the
rules framed there under” has been attached in new.
it
includes the name of a trade mark registered or a trade mark which is subject
of an application for registration under the Trade Marks Act, 1999 and the
rules framed there under unless the consent of the owner or applicant for
registration, of the trade mark, as the case may be, has been obtained and
produced by the promoters;"
RULE 8(6)(n) Undesirable names.
OLD RULE
The
following words and combinations thereof shall not be used in the name of a
company in English or any of the languages depicting the same meaning unless
the previous approval of the Central Government has been obtained for the use
of any such word or expression-
(a)
Board;
(b) Commission;
(c) Authority;
(d) Undertaking;
(e) National;
(f) Union;
(g) Central;
(h) Federal;
(i) Republic;
(j) President;
(k) Rashtrapati;
(l) Small Scale Industries;
(m) Khadi and Village Industries
Corporation;
(n) Financial, Corporation and the like; .
NEW RULE
The comma
between the words 'financial' and 'corporation'
shall be omitted in (n)
RULE
13(2) : Signing of memorandum and articles
OLD RULE
The
Memorandum and Articles of Association of the company shall be signed in the
following manner, namely:-
13(1)
The
memorandum and articles of association of the company shall be signed by each
subscriber to the memorandum, who shall add his name, address, description and
occupation, if any, in the presence of at least one witness who shall attest
the signature and shall likewise sign and add his name, address, description
and occupation, if any and the witness shall state that “I witness to
subscriber/subscriber(s), who has/have subscribed and signed in my presence
(date and place to be given); further I have verified his or their Identity
Details (ID) for their identification and satisfied myself of his/her/their
identification particulars as filled in”
13(2)
Where a
subscriber to the memorandum is illiterate, he shall affix his thumb impression
or mark which shall be described as such by the person, writing for him, who shall
place the name of the subscriber against or below the mark and authenticate it
by his own signature and he shall also write against the name of the
subscriber, the number of shares taken by him.
NEW RULE
Subscription sheet will be
accepted now in type written
In the
principal rules, in rule 13, after sub-rule (2), the following Explanation shall be inserted, namely:-
"Explanation.- For
the purposes of sub-rule (1) and sub-rule (2), the type written or printed
particulars of the subscribers and witnesses shall be allowed as if it is
written by the subscriber and witness respectively so long as the subscriber
and the witness as the case may be appends his or her signature or thumb
impression, as the case may be."
RULE
16 Particulars of every subscriber to be filed with the Registrar at the time
of incorporation.
OLD RULE
(1) The following particulars of every
subscriber to the memorandum shall be filed with the Registrar
(m)
Proof of Identity:
• For Indian Nationals:
PAN Card ( mandatory) and any one of
the following
Voter’s identity card
Passport copy
Driving License copy
Unique Identification Number (UIN)
• For Foreign nationals and Non
Resident Indians
Passport
(q) the specimen signature and
latest photograph duly verified by the banker or notary shall be in the
prescribed Form No.INC.10.
NEW RULE
Rule 16 in sub-rule ( 1),-
(a) in
clause (m), the following Explanation shall be inserted, namely:-
(m) "Explanation.-
In case the subscriber is already holding a valid DIN, and the particulars
provided therein have been updated as on the date of application, and the
declaration to this effect is given in the application, the proof of identity and residence need not be attached."'
(q) INC-10 not required now.
RULE 16(2)(g) Particulars of every subscriber to be filed
with the Registrar at the time of incorporation.
OLD RULE
Where the subscriber to the memorandum is a body corporate, then the
following particulars shall be filed with the Registrar-
(g) if the body
corporate is a limited liability partnership or partnership firm, certified true copy of the resolution agreed
to by all the partners specifying inter alia the authorization to subscribe to
the memorandum of association of the proposed company and to make investment in
the proposed company, the number of shares proposed to be subscribed in the
body corporate, and the name of the partner authorized to subscribe to the
Memorandum.
NEW RULE
(G) WORD”Or Partnership
Firm” Deleted.
Rule 26 Publication of name by company
OLD RULE
Publication of name by company.- The Central Government may as and
when required, notify the other documents on which the name of the company
shall be printed.
NEW RULE
"26. Publication of name by company.- (1) Every company which
has a website for conducting online business or otherwise, shall
disclose/publish its name, address of its registered office, the Corporate
Identity Number, Telephone number, fax number if any, email and the name of the
person who may be contacted in case of any queries or grievances on the landing
home page of the said website.
RULE 28(2) Shifting of registered office within the same
State.-
OLD RULE
: Provided further 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.
NEW RULE
This will be inserted after OLD RULE
"Provided also that 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.".
RULE 29 (1) Alteration of Memorandum by change of name.-
OLD RULE
The change of name shall not be allowed to a company which has
defaulted in filing its annual returns or financial statements or any document
due for filing with the Registrar or which has defaulted in repayment of
matured deposits or debentures or interest on deposits or debentures.
NEW RULE
the following shall be substituted, namely:- "( I ) The change
of name shall not be allowed to a company which has not filed annual returns or
financial statements due for filing with the Registrar or which has failed to
pay or repay matured deposits or debentures or interest thereon:
Provided that the change of name shall be allowed upon filing
necessary documents or payment or repayment of matured deposits or debentures
or interest thereon as the case may be."
RULE 30(1)(i) . Shifting of registered office from one
State or Union territory to another State.-
OLD RULE
Only documents required were
MOA/AOA
NOTICE with explanatory statement
Special resolution if any
Minutes of the General meeting
Affidavit verifying the application
Creditors/ Debenture Holder List
Affidavit for list of
creditors/debenture holders verification
Payment of application fee proof
Power of Attorney or the executed
Vakalatnama
NEW RULE
New Point (j) has been inserted
"a copy of the No Objection Certificate from the Reserve Bank
of India where the applicant is a registered Non-Banking Financial
Company"
RULE
30(1)(i) . Shifting of registered office from one State or Union territory to
another State.-
OLD RULE
(6) The company shall at least fourteen days before the date of
hearing-
(c) serve, by registered post
with acknowledgement due, a notice together with the copy of the application to
the Registrar and to the Securities and
Exchange Board of India, in the case of listed companies and to the
regulatory body, if the company is regulated under any special Act or law for
the time being in force.
NEW RULE
IN POINT (C) the words "and
to the Securities and Exchange Board in the case of listed companies"
shall be omitted;
RULE
30 (10) . Shifting of registered office from one State or Union territory to
another State.-
OLD RULE
The
Central Government may make an order confirming the alteration on such terms
and conditions, if any, as it thinks fit, and may make 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.
NEW RULE
in
sub-rule (10), after the proviso, the following Explanation shall be inserted,
namely:- "Explanation.- 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.".
In the Companies (Incorporation) Rules, 2014, After
existing Rule 36, the following Rules shall be inserted.-
37. Conversion of unlimited liability company into
limited liability company:-
For effecting the conversion of an unlimited liability company into
limited liability company, the company shall pass a special resolution in a
general meeting and thereafter, an application shall be filed in Form INC-27 in
the manner hereinafter provided.
1) The Company shall within seven days from the date of passing of
the special resolution in a general meeting, publish a notice of such proposed
conversion in newspapers (one in English and one in vernacular language) in the
district in which the registered office of the company is situate and shall
also place the same on the website of
the Company, if any, indicating clearly the proposal of conversion of the
company into limited liability company, and seeking objections if any from the
persons interested in its affairs, to such conversion and cause a copy of such
notice to be dispatched to its creditors and debentures holders by registered post
or electronic mode or through courier with proof of dispatch. The notice shall
also state that the objections, if any, may be intimated to the Registrar and
to the company within twenty-one days of the date of publication of the notice,
duly indicating nature of interest and grounds of opposition.
2) The Company shall within sixty days of passing of the special
resolution file an application as
prescribed in sub rule (1) for its conversion into Limited Liability Company
alongwith the fees as provided in the Companies (Registration offices and Fees)
Rules, 2014, by attaching the following documents, namely:-
a) Notice of the general meeting along with explanatory statement;
b) Copy of the resolution passed in the general meeting;
c) Copy of the newspaper publication;
d) A copy of altered Memorandum of Association as well as Articles
of Association duly certified by any one of the directors duly authorised in
this behalf.
e) Declaration from all the directors of the Company that such
conversion shall not affect any debts, liabilities, obligations or contracts
incurred or entered into by or on behalf of the Company before conversion
(except to the extent that the liability of the members shall become limited).
f) A complete list of creditors and debenture holders, drawn up to
the latest practicable date preceding the date of filing of application by not
more than thirty days, setting forth the following details, namely:-
(i) the names and
address of every creditor and debenture holder of the Company;
(ii) the nature and
respective amounts due to them in respect of debts, claims or liabilities:
(iii) declaration by a director of the company that notice as required in sub-rule (2) has been dispatched
to all creditors and debenture holders with proof of dispatch.
g) A declaration signed by not less than two directors of the
company, one of whom shall be a managing director where there is one, to the
effect that they have made a full enquiry into the affairs of the Company and,
having done so, have formed an opinion that the list of creditors is correct,
and that the estimated value as given in the list of the debts or claims
payable on a contingency or not ascertained are proper estimates of the values
of such debts and claims and that there are no other debts of or claims against
the Company to their knowledge.
h) A declaration of solvency signed by at least two directors of the
company, one of whom shall be the managing director where there in one to the
effect that the Board of Directors of the company have made a full inquiry into
the affairs of the company, as a result of which they have formed an opinion
that it is capable of meeting its liabilities and will not be rendered
insolvent within a period of one year from the date of declaration, through a resolution,
passed in a duly convened meeting.
i)The company should also obtain a certificate from the Statutory
Auditors that the company is solvent and that it is a going concern as on the
date of passing of resolution by the Board certifying solvency as per (h)
above.
j)NOC from sectoral regulator, where necessary.
k)NOCs from all secured creditors, if any.
Declaration from all the directors of the Company that no complaints
are pending against the company from the members or investors.
1)Where no objection has been received from any persons, who have
been duly served with notice, the application shall be decided by the Registrar
on merits. Where an objection has been
received, the company shall either obtain the objector’s consent to the
conversion or his debt or claim has been discharged or determined or has been
secured as the case may be, to the satisfaction of the Registrar.
2)The certificate of incorporation consequent to conversion of
unlimited liability company to the limited liability company in Form INC-11A
shall be issued to the company upon grant of approval for conversion.
3)Conditions to be complied with, subsequent to conversion:-
Company shall not change its name for a period of one year from the
date of such conversion.
The company shall not declare
or distribute any dividend without satisfying past debts, liabilities,
obligations or contracts incurred or entered into before conversion.
(8) An Unlimited Liability Company shall not be eligible for
conversion into Limited Liability Company in case ;-
Its networth is negative, or
It has incurred losses continuously for the past three financial
years, or
(a) Scrutiny or inquiry or
investigation is pending and where it is completed and prosecution is pending
against the company or its directors under the provisions of the Companies Act,
1956/2013 as consequence thereof, or
(b) An application is pending
under the provisions of the Companies Act 1956/2013 for striking off its name,
or
(c) The company has defaulted in
filing Annual Returns and or financial statements under the provisions of the
Companies Act.
(ii) For
the existing form INC-27 the following form INC-27 shall be substituted.
After the
existing Form INC-11, the form no. INC-11A shall be inserted
Form
No. INC-11A
Certificate
of Incorporation pursuant to conversion of Unlimited Liability company into
Limited Liability Company
[pursuant to section 18 of the Companies
Act, 2013 read with Rule 37 of the Companies (Incorporation) Rules, 2014]
I hereby certify
that……………(name of the company prior to conversion) having unlimited liability
has been converted into……….(name of the company after conversion) company
having limited liability with effect from the date of this certificate on the
company is limited by shares/limited by guarantee.
The CIN of the
company is……………………………
Given under my
hand at…………… this………………… day of…………… two thousand………………
SEAL: …………………
Registrar
of Companies
…………………………
(State)
[F. No. 1/13/2013
CL-V]
AMARDEEP SINGH BHATIA, Jt. Secy.
Note: — The principal rules were published in the Gazette of India,
Extraordinary, Part-II, Section 3, sub-section (i), vide number G.S.R. 250(E),
dated the 31st March, 2014, amended vide number G.S.R 349(E) dated 1st May,
2015, amended vide G.S.R. 442 (E) dated 29.05.2015 and lastly vide number
G.S.R. 99(E) dated 22.01.2016.
Form
No. INC-11A
Certificate
of Incorporation pursuant to conversion of Unlimited Liability company into
Limited Liability Company
[pursuant to Rule 37 of the Companies
(Incorporation) Rules, 2014]
I hereby certify
that (name of the company) has been converted from……………. to………………….. with
effect from the date of this certificate on the company is limited by shares/limited
by guarantee.
The CIN of the
company is……………………………
Given under my
hand at…………… this………………… day of…………… two thousand………………
SEAL: …………………
Registrar
of Companies
…………………………
(State)
Form language o English o Hindi
Refer the instruction kit for filing the
form.
1. *Application for o
Conversion of private company into public company
o Conversion of
public company into private company
o Conversion of
Unlimited Liability Company into Limited Liability Company
2. *(a) Corporate identity number(CIN) of company
  (b) Global
Location Number
3. (a) Name of the Company
(b) Address of registered office
  (c) email Id of the company
4.
 *Reason(s) for
conversion
5. *Particulars of filing Form No. MGT-14 with Registrar of Companies (RoC)
 (a) SRN of
Form No. MGT-14  (b) Date of
passing the special resolution (DD/MM/YYYY) (c) Date of
filing Form No. MGT-14 (DD/MM/YYYY)
6. *
Particulars
of the order of Tribunal
(a) Date of
passing the order
 (b) Date of
receiving the order
7. *Name of the company at the time of incorporation (to be displayed
in the certificate)
8. (a) Details of members present at the meeting where the decision
of conversion was taken and number of shares held by them
 (i) *Number
of members(ii) Number
of shares held by them (b) Details
of the members who voted in favour of the proposal and number of shares held
by them(i) *Number
of members
(ii) Number of shares held by them
(c) Details
of the members who voted against the proposal and number of shares held by
them
(i) *Number of members
 (ii) Number
of shares held by them
(d) Details of members who abstained from voting and number of
shares held by them
(i) *Number
of members(ii) Number
of shares held by them
Attachments
List of attachments
1. *Minutes of the members' meeting;
Articles of Association;
as per Rule
37(3)(e);
As per Rule 37(3)(g);
debentures holders; Attach
As per Rule 37(4)
Declaration
 To the best
of my knowledge and belief, the information given in this application and its
attachments are correct and complete. The company has obtained all the
mandatory approvals from the concerned authorities, departments and
substantial creditors. I have been authorized by the board of directors’
resolution number *
dated * 
(DD/MM/YYYY) to sign and submit this application.
To be digitally
signed by
*Designation
*Director identification
number of the director; or
 DIN or PAN of
the manager or CEO or CFO; or
Membership number
of Company secretary
Note: Attention is
drawn to provisions of Section 448 and 449 of the Companies Act, 2013 which
provide for punishment for false statement / certificate and punishment for
false evidence respectively.
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For more details, Contact CS
Neha Seth at csnehaseth@gmail.com or call us at 9871903449
